ROGUE COPS – WHAT HAPPENED?
In Victoria, an incident occurring on 19 September 2017 has resulted in three police officers facing charges of unlawfully assaulting a disability pensioner on his front lawn. These officers are now disputing the charges, giving evidence defending their actions in a contested hearing that could run up to 15 days.
THE FACTS
It is reported that six officers attended the victims house on a welfare check after the man’s psychologist rang triple zero concerned about his mental health. The victim was ill and distressed, withdrawing from the pain medication he had been on since he had back surgery. He has anxiety and depression and his health carers called emergency services, concerned by his deteriorating mental state.
A CCTV security camera captured the victim opening his front door to plead with police to leave, having initially refused to open the door. When he pushed aside a policeman’s hand he was grabbed, dragged out and forced to the ground.
There are three officers who have been charged. This footage clearly shows that the first officer, Senior Constable McLeod unlawfully punches the victim in the stomach, sprays him in the face with capsicum spray and later encourages Senior Constable Hilgart to use the high-pressure hose. The second officer, Constable Edney unlawfully struck the victim with an extendable baton. The third officer, Senior Constable Hilgart, sprays the victim in the face with a high-pressure hose, and this goes on for minutes. The contents of the CCTV footage are quite disturbing, and the Prosecution will reply on this footage in Court.
When it was over, the video shows the victim sitting on the grass crying.
“Why are you doing this to me?” he asked.
The lead police officer offered his explanation and some of the other six officers laughed.
“Are you happy? Are you happy?” the officer questioned.
The victim groaned.
“I’m a disabled pensioner. That’s how tough you are,” the victim said.
Assistant Commissioner Luke Cornelius, the acting head of Professional Standards Command at Victoria Police, said “The conduct displayed on the CCTV demanded examination and explanation. The members involved clearly needed to be called to account for their conduct.”
The three officers are currently on bail and Victoria Police has confirmed they are suspended with pay.
THE LAW AS IT RELATES TO NSW
The Law in relation to Common Assault is found in section 61 of the Crimes Act 1900 (NSW). It states:
“Whoever assaults any person, although not occasioning bodily harm, shall be liable to imprisonment for two years”.
Common assault is an assault which results in no injury, or in injuries that are not serious or require very little medical treatment. Common assault can also include threats of violence, if the person making the threat is able to carry the threat out.
If you are curious about other recent assault matters, check out our blog posts on the Fraser Anning incident, and a case where a man took defending his son from bullies a little too far.
POLICE CODE OF CONDUCT AND ETHICS
NSW Police are always expected to act with integrity and in a professional manner. The Police Code of Conduct and Ethics states that an employee of the NSW Police Force must:
- Behave honestly and in a way that upholds the values and the good reputation of the NSW Police Force whether on or off duty;
- Act with care and diligence when on duty;
- Know and comply with all policies, procedures and guidelines that relate to their duties;
- Treat everyone with respect, courtesy and fairness;
- Comply with any lawful and reasonable direction given by someone in the NSW Police Force who has authority to give the direction;
- Comply with the law whether on or off duty;
- Take reasonable steps to avoid conflicts of interest, report those that cannot be avoided, and co-operate in their management;
- Only access, use and/or disclose confidential information if required by their duties and allowed by NSW Police Force policy;
- Not make improper use of their position or NSW Police Force information or resources; and
- Report misconduct of other NSW Police Force employees.
One might interpret this to mean that the police owe a higher standard of care than the ordinary person, to not assault others. Under section 231 of the Law Enforcement (Police Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’), the police are only allowed to use force to the extent that it is necessary to carry out an arrest. Extra care must be taken with those that are most vulnerable in our society. Generally in criminal law, crimes that are committed against vulnerable people are classified as aggravated offences. The term vulnerable is not used in the legislation, however, when one looks at the circumstances of aggravation, one can see that ‘vulnerable’ would be a correct way to categorise such victims. Examples of aggravated circumstances include: when the victim is under the age of 16 years, or under the authority of the offender, or has a serious physical disability, or the victim has a cognitive impairment. These are expressed in the offence of aggravated sexual assault. One can see that the bullying behaviours of the police in this situation were done to a vulnerable person in our society, which makes the offending objectively worse.
Further, police must have reasonable grounds for carrying out an arrest without a warrant. It appears that the police had no reason at all to attempt an arrest of the victim here, let alone assaulting him. For more on police powers of arrest, check out our blog post.
REPORTING POLICE MISCONDUCT – NEW SOUTH WALES
In NSW everyone has the right to complain about a NSW police officer’s conduct or behaviour. If a person has serious allegations of assault by a Police officer, complaints can be made to the following:
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Commissioner of Police;
- You must lodge your complaint online, OR complete the Complaint Form (PDF) and
- Lodge it or mail the complaint form to, your local police station, or
- Mail the completed complaint form to the Customer Assistance Unit at
P.O. Box 3427, Tuggerah, NSW 2259, or
– Email your complaint form to customerassistance@police.nsw.gov.au
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Law Enforcement Conduct Commission (LECC)
- To lodge a formal complaint with the Law Enforcement Conduct Commission (LECC) go to lecc.nsw.gov.au. The Law Enforcement Conduct Commission is an independent statutory body responsible for investigating complaints against the police. It has its own independent investigators for these cases. Some less serious complaints will be referred to the police for investigation but, these will be monitored by the Commission’s own staff.
Police abuse of power whilst on duty is a very serious issue and we encourage that anyone who has experienced unlawful behaviour by a police officer to make a complaint for further investigation to take place.
For our latest blog providing information on your rights in a police interview, click the link here.