Criminal Law Civil Law

By Satomi Hamon

25.01.24

A possible $2m claim against police, caught in a legal loophole

In December 2023 the ACT Supreme Court dismissed a claim for damages against Australian Federal Police officers accused of trespassing, using excessive force and falsely imprisoning a man.

When handing down his decision, the judge acknowledged that if it weren’t for a clause in the Crimes Act which stipulates a claim must be started within six months of the alleged incident occurring, claimant Justin Glavinic would have been eligible for nearly $2 million in damages against the police.

The issue of limitations is a contentious one (see our previous blogs regarding damages claims for alleged institutional sex abuse) and the Glavinic v Commonwealth [2023] ACTSC 361 finding is significant, particularly in light of the fact that a claim for damages for personal injury must usually be brought within three years of the time the cause of action arose, not the six months that effectively decided this matter.

The Glavinic decision means defendants who believe they have a claim against police on the basis of unlawful entry/arrest/search/use of force should begin their claim within six months of the incident and likely well before any associated criminal charges are finalised. Criminal charges are rarely resolved within six months.

Mr Glavinic alleged three AFP officers unlawfully entered his home in 2018 and beat him, sprayed capsicum spray in his mouth and placed a spit hood over his head.

He said this excessive use of force caused severe and substantial physical and psychiatric injury to himself, and psychiatric injury to two witnesses.

But because Mr Glavinic’s claim for damages against the police and the Commonwealth was not started within a six-month limitation period pursuant to section 435 of the Crimes Act 1900 (“the Crimes Act”), it was dismissed by Justice David Mossop.

Section 435 of the Crimes Act states:

Protection of persons acting under Act

1. All actions against any person, for anything done, or reasonably supposed to have been done under this Act, shall be commenced within 6 months after the fact committed, and written notice of any such action, and of the cause of it, shall be given to the defendant 1 month at least before commencement of the action, and in any such action the defendant may plead the general issue, and give the special matter in evidence.
2. No plaintiff shall recover in any such action, if a tender of sufficient amends was made before action brought, or if a sufficient sum is paid into court, on behalf of the defendant, after action brought.
3. If a verdict passes for the defendant, or the plaintiff becomes nonsuit, or discontinues his or her action after issue joined, or if on demurrer, or otherwise, judgment is given against the plaintiff, the defendant shall recover costs as between solicitor and client.

Whether or not the limitation period provided in section 435(1) applies depends on whether the actions of the person subject to the claim (in this case the AFP officers) fall within the scope of the expression “anything done, or reasonably supposed to have been done” under the Crimes Act.

The Crimes Act contains provisions that give police powers to enter premises, make arrests and conduct searches. In the circumstances of the Glavinic decision, as part of their defence the AFP officers contended that they lawfully entered Mr Glavinic’s property pursuant to sections 188 and 190 of the Crimes Act (which allow police officers to enter private premises in certain circumstances).

Justice Mossop ultimately concluded that entry to Mr Glavinic’s property by each of the AFP officers was not justified by section 188 or section 190 of the Crimes Act, but he was satisfied that the officers believed it was necessary to enter the premises immediately for some or all of the reasons set out in section 190 and that each officer was aware of the power of entry contained in that provision.

Justice Mossop concluded that each AFP officer believed he was acting in a manner consistent with the law when he entered Mr Glavinic’s property. Justice Mossop therefore concluded that Mr Glavinic’s claim against the AFP officers was for something “reasonably supposed to have been done” under the Crimes Act (as per wording of section 435(1)) and so the six-month limitation period provided in section 435(1) applied.

If the Court in the Glavinic decision had found that the AFP officers did not believe they were acting lawfully, or had no basis for such a belief (making it unreasonable), when entering Mr Glanivic’s property, then section 435(1) would not have applied.

Not all claims against police officers will be subject to the six-month limitation period contained in section 435(1), however it is entirely possible that a good claim could be lost on this basis.

Given the legal nuances brought to light by this judgement, it’s clear that anybody who believes they have a claim for damages against police arising from an unlawful entry/arrest/search/use of force or any other action should move quickly to seek specialised legal advice.

If this applies to you, contact our team at Aulich Law so we can use our expertise and experience in complex legal matters such as this to get you the best outcome.

The Glavinic decision is now going through an appeal.

The full decision can be found here: Glavinic v Commonwealth [2023] ACTSC 361