Criminal Law

By Phoebe Tulk

25.11.22

Police abuse powers of arrest – again

In August 2015, Mr Danny Lim was in the suburb of Edgecliff in Sydney in New South Wales wearing a sandwich board across which was written “TONY YOU CUN’T” on the front. NSW police officers charged Mr Lim for conducting himself in an offensive manner in a public place. In February 2016, Magistrate Stapleton of the NSW Local Court found Mr Lim guilty of the offence. Later, Mr Lim successfully appealed the conviction before Judge Scotting in the District Court of NSW, who recognised there was nothing offensive in Mr Lim wearing a sandwich board with a political statement as “politicians and their views are often subject to criticism in public”.

In January 2019, Mr Lim was in the suburb of Barangaroo, wearing a sandwich board across which was written “SMILE CVN’T” on the front. Mr Lim was issued a Criminal Infringement Notice (CIN) for offensive behaviour and fined $500. In August 2019, Magistrate Milledge of the NSW Local Court dismissed the fine and deemed the police officer’s actions as “heavy-handed and unwarranted”.

On 22 November 2022, NSW police officers took the phrase ‘third time’s a charm’ to a new level. Mr Lim was standing inside the Queen Victoria Building in Sydney City, wearing a sandwich board across which was written “SMILE CVN’T” on the front. Police officers issued Mr Lim a move on ‘move on’ order, directing him to leave the premises. After Mr Lim failed to leave, two police officers decided to exercise their powers of arrest – a power meant to be exercised as a last resort. The officers grabbed Mr Lim’s arms, twisted them behind his back and threw him to the ground. The officers continued to wrangle his arms behind his back and wrestle his hands into cuffs while a pool of Mr Lim’s blood steadily spread across the floor. After flipping the bloodied and bruised Mr Lim onto his back, the officers ‘discontinued’ the arrest. As blood continued to spill from Mr Lim’s headwound, he requested the officers call him an ambulance – a request they refused. Mr Lim was eventually hospitalised and suffered a neck injury and a potential brain bleed.

If the NSW police force desired to provide the public another example of how comfortable their officers are with abusing power, the third time was definitely the charm.

The law in NSW

The main legislation governing police powers in NSW is the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). Section 230 of the LEPRA states it is lawful for a police officer exercising a function to use such force “as is reasonably necessary to exercise the function”. Section 231 of the LEPRA clarifies this power in relation to arrest, empowering a police officer to use such force “as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest”. Police officer’s ability to make an arrest without a warrant is defined in section 99 of the LEPRA – the officer must suspect on reasonable grounds the suspect is committing, has committed, or is about to commit, an offence.

Factors affecting what is considered a ‘reasonable’ use of force in the circumstances of an arrest or exercise of a function include the suspect’s age, gender, and physical size and the unpredictability of the situation at hand. However, this does not empower police officers to use pre-emptive force. For example, the application of force to a compliant suspect may be considered unreasonable, unnecessary and excessive.

One of the most recurring situations in which police officers have used excessive force is in the exercise of their power to give a move on direction. Section 197(1) of the LEPRA empowers a police officer to give a direction to a person in a public place if the officer believes on reasonable grounds the person’s behaviour or presence is obstructing traffic, constitutes harassment or intimidation, is causing fear, or is for the purpose of supplying or obtaining drugs. Another common situation in which excessive force arises is in the exercise of a police officer’s power under section 21(1) of the LEPRA to stop and search a person without a warrant and section 31 of the LEPRA to carry out a strip search.

In early 2020, data obtained under freedom of information laws by David Shoebridge, an NSW Greens MP, disclosed NSW police officers had set a quota of 241,632 searches, including strip searches, for 2019. For move on orders, a goal of 106,307 directions was set for 2019. Unfortunately for the NSW police force, they failed to reach their target, performing  merely 238,923 searches throughout 2019.

The law in the ACT

In the Australian Capital Territory, the main legislation governing police powers of arrest is the Crimes Act 1900 (ACT) (Crimes Act). Section 212 is drafted in substantially the same terms as section 99 of the LEPRA, providing police officers the power to make an arrest without a warrant if it is suspected on reasonable grounds the suspect is committing, has committed, or is about to commit, an offence. Section 221(1) of the Crimes Act provides a police officer making an arrest shall not “use more force, or subject the other person to greater indignity, than is necessary and reasonable”. Despite this presenting as a more rights-respecting and abuse-deterring regulation than the NSW counterpart, the reality of policing in the ACT is the opposite.

In February 2014, Justice Griffiths of the Federal Court of Australia upheld the dismissal of an AFP officer who had used unnecessary and excessive force in using capsicum spray, placing the man into a headlock, and forcing him into the back of a caged police van when arresting him outside a nightclub in Manuka in Canberra. Despite this, the AFP officer was later reinstated at the AFP’s Barton headquarters.

In March 2021, Special Magistrate Campbell of the Magistrates Court of the ACT found an ACT police officer had used unnecessary and excessive force in accosting the man on the street, forcing him into the back of a caged police van, and using capsicum spray when arresting him under the false pretence of being drunk and disorderly. In this case, the victim was Indigenous. Julie Tongs OAM, Chief Executive Officer of Winnunga Nimmityjah Aboriginal Health and Community Services, deemed the arrest representative of how ACT police officers behave towards Indigenous people.

In August 2021, Magistrate Lawton of the Magistrates Court of the ACT found two ACT police officers had used unnecessary and excessive force in tasering a man when arresting him outside a nightclub in Civic Square in Canberra.

In July 2022, Magistrate Lawton again found two ACT police officers had used unnecessary and excessive force in pulling a man from his car, handcuffing him and shoving his face into the gutter when arresting him for suspected drink driving. Magistrate Lawton deemed the actions of the officers “deplorable and should be denounced”.

When these ACT police officers used force beyond what was reasonably necessary, it rendered them liable to criminal charges and entitled the victim to institute a civil claim action the police officer. Excessive use of force can involve the intentional commission of an unlawful trespass to the person. Types of trespass to the person include assault, battery, and false imprisonment.

Battery involves directly and intentionally bringing about harmful or offensive contact with a person. Assault involves intentionally creating in another person an apprehension of imminent harmful or offensive contact. False imprisonment involves directly and intentionally totally restraining the freedom of movement of a person without legal authority. Mr Lim may have a civil claim against the two NSW police officers for all three.

A civil action for trespass to the person and resulting personal injuries in the ACT involves making a claim under the common law or the Civil Law (Wrongs) Act 2002 (ACT).

Sadly, it is not uncommon for police to try and justify their actions by charging those they use excessive force against.  We often encounter people charged with resisting or even assaulting police in such circumstances.

The expert lawyers at Aulich Civil Law and Aulich Criminal Law often put their heads together to create the perfect legal team for such matters. If you believe you have been a victim of a police officer or member of the AFP using excessive force, whether or not you have been criminally charged, contact one of our lawyers immediately on 6279 4222 or info@aulich.com.au