Excessive Force By Police – Who Will Guard The Guards?

Excessive force

Excessive Force By Police – Who Will Guard The Guards?

UNREASONABLE USE OF POLICE FORCE

If anyone watched the Report last night (on 21 January 2019) they would have seen several different stories on how Victorian police in full sight of CCTV abused and assaulted different persons from different walks of life who they were having dealings with.

Below is a summary of these attacks.

The article poses as an awareness on police brutality and what is regarded as “excessive force”.

CASE ONE DR PROUDLOVE

The first person revealed to have been assaulted was Medical Doctor KIM PROUDLOVE. Dr Proudlove simply tried to attend to a bleeding man on the street. Police were surrounding the man who for whatever reason had come to their attention. Dr Proudlove being a medical doctor ascertained there was a huge amount of blood coming from the man who was lying face down on the ground and after introducing herself as a Medical Doctor to police she sought to give first aid.

The police on the street’s response to her offer was that the ambulance had been called and that the injuries were self-inflicted, and the person had Hepatitis C.

Dr Proudlove on the 7.30ply to those comments said:

“what does it matter how his injuries were inflicted?”. She also notes the ambulance was “not on the scene at that time and thus why can’t she give first aid to a man who was clearly in need of first aid assistance while the ambulance is on the way?”.  

Whatever the case Dr Proudlove decided to move closer to the man to give him first aid and basically preserve his life. She then states when she did this she was pushed away by the police on the street. The following is an excerpt form what she said to the ABC.

“At that point, they actually physically grabbed me – the front of my jacket – and pushed me up against a wall. They pushed me so hard, my glasses went flying off”

She then claims a policeman for no justifiable reason attacked her.

“I could see it in his eyes: he just lost it. He came at me and started punching me. And by then, I found myself on the ground and just searing pain. He punched me in the head repeatedly: not just once. I had my hands behind my back, and he was punching me in the head”.

As a result of the attack by police, Dr Proudlove sustained the following injuries:

“They had to glue my ear back. I had these massive bruises. I couldn’t sleep on my right side for over a week and a bit. They did damage to a nerve in my hand”.
“But the worst part was: they actually did significant damage to my knee. They actually broke my leg. I had a fracture of one of the leg bones and they tore the ligaments in my knee”.

In relation to the footage from Dr Proudlove’s phone the vision she filmed was deleted from her phone and the backup folder wiped.

To add assault to injury, Dr Proudlove was told by police they were considering charging her with resisting arrest.

On the night her husband rang emergency and reported the assault by police. Furthermore, within hours Dr Proudlove complained to the police Internal Affairs unit, at the time headed by assistant commissioner Cornelius, the man who three weeks earlier had assured Victorians that police brutality would not be tolerated. Her alleged assault occurred just 19 days after another major police brutality scandal was exposed.

In relation to her case a police spokesperson said:

“the case was subject to “an active Professional Standards Command investigation”. That the Senior Constable and Sergeant involved in the alleged incident have been transferred to other duties while the investigation is taking place AND “We are unable to provide any further information as the investigation is ongoing.”

CASE TWO PHIL DICKSON

On January 11th, 2013, a 62-year-old disability pensioner was found by police, sitting in his parked car with a blood alcohol reading of 0.27. He was arrested for drink driving offences and assaulting an officer. He pleaded guilty to those charges. However, CCTV security footage of Phil Dickson in Geelong Police Station watch house showed that when he entered Geelong Police Station after words are exchanged, he is told to take off his belt. He throws it on the ground. Next, the police officer grabs him on the back of the neck and slaps him on the side of the face – and then twice to the back of the head. He’s then thrown to the ground. His head starts bleeding and paramedics are called. The medical records say he was intoxicated in his police cell and was rowdy, so had to be physically restrained and hit his head. However, the CCTV tells a different story. When his criminal solicitor asked for access to CCTV due to the extent of Phil’s injuries, he made a complaint to Police Professional Standards.

The police officer, Michael Cook, was charged and pleaded guilty to assault, but no conviction was recorded. The officer was suspended with pay for a year. He was not sacked or demoted.

WHAT IS REASONABLE USE OF FORCE?

Section 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPR) states that the force used by police officers generally must be that which is ‘reasonably necessary to exercise the function’.

This is supplemented by section 231 of LEPR, which explicitly states that the use of force in making an arrest must be that which ‘is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.’

REMEDIES FOR THOSE ASSAULTED BY POLICE

The three types of trespass to the person are:

  • Unlawful imprisonment (false or wrongful imprisonment);
  • Battery; and
  • assault

An assault by a police officer in NSW is regarded as a civil assault. A civil assault is different to criminal assault. In general  terms, a civil assault includes battery/assault. The test for a civil assault is when a person unlawfully causes another to fear harm. Excessive force by police could be considered both assault and battery.

An excessive force case can be successful even if you have pleaded guilty to criminal charges. This is because breaking the law does not entitle the police to punish you by physically beating you.

Unlawful imprisonment involves a wrongful, intentional act of a person causing total restraint on the liberty of another person, for whatever period of time, by either actively causing the person’s confinement or preventing that person from leaving the place that he or she is located.

Houda v New South Wales [2005] NSWSC 1053 is an interesting unlawful imprisonment case arising from an unjustified arrest. It was also a case where a malicious prosecution was commenced and maintained.

CONCLUSION AND COMMENT

One thing which is clear is that in the above two cases the force used was not reasonable. Moreover, these kinds of cases are not unique indicating that there is a clear systematic cultural problem/failure in our police forces. This failure exists not only from the bottom up but also from within and from the top down with even the gravest of breaches of the law being given mere lip service by the investigating authorities

Finally given the police are responsible for their own oversight it must again be asked again why is there no arms-length independence authority to punish and deter these kinds of unacceptable misuses of force?

As I’ve said on many occasions the Latin question “Quis custodiet ipsos custodes?” which literally translates to “who will guard the guards themselves?” needs to be reconsidered and in light of ever-increasing complaints and incidence proper independence oversight must be put in place.

 

 

Book your first free appointment with National Criminal lawyers now.
CONTACT US! 02 9893 1889

Book Appointment

  • :