Complaints about Police

Contributed by NT Ombudsman, Commonwealth Ombudsman and Peter O'Brien and current to December 2025

In the Northern Territory (NT) there is a system available to members of the public who wish to complain about the NT or Federal Police. This section outlines these complaint mechanisms, including rights of appeal, and deals with the option of taking police to court.

Duties of police

Northern Territory (NT) Police can exercise a range of powers when carrying out their duties. However, they are as obliged to obey the law as any other member of the community, and have additional laws and rules which they are bound by.

The Police Administration Act 1978 (NT) ("the PAA"), the Australian Federal Police Act 1979 (Cth), and the common law set out the powers and duties of police officers. These include an obligation to:

• be courteous to the public
• give prompt attention to all matters within the scope of their duties
• comply with and give effect to Commonwealth and Territory laws and the general orders of the Commissioner of Police (see sections 14A and 25 of the PAA).

When a police officer exceeds their authority, individuals have the option to file a complaint and/or pursue legal action through the courts. Similarly, complaints can be lodged if police officers fail to act, neglect their duties entirely, or perform them in an unprofessional manner.

The Northern Territory Government (NTG) is responsible for covering damages awarded by a court for actions taken by a police subject officer under the Police Administration Act (PAA), as outlined in Section 148F. However, punitive damages awarded as punishment are the responsibility of the individual police subject officer. If a poice subject officer is found to have acted beyond their authority, they may be held personally liable for any damagess awarded.

Complaints about Northern Territory Police Force

Complaints about the NT Police Force can be made to:

• Commissioner of Police
• NT Ombudsman Office
• A police officer at any police station in the NT.

However, a police officer must not accept a complaint if it specifically relates to their own conduct and must inform the person to complain either to the NT Ombudsman, the Commissioner of Police or another police officer (section 24(2) of the Ombudsman Act 2009 (NT)).

A complaint should preferably be made in writing, setting out the particulars of the incident and the contact details of any witnesses. However, complaints can be made to the NT Ombudsman office both in written form and orally (sections 24(4) to 25 of the Ombudsman Act 2009 (NT)). A compliant to the NT Ombudsman should be made within 12 months of the incident the person wishes to complain about, the Ombudsman may refuse to investigate complaints made after that date (section 25 of the Ombudsman Act 2009 (NT)). If available, relevant documentation, such as medical reports and photographs, should be included. The Ombudsman may accept complaints outside the 12 month time-frame only if the Ombudsman considers it is in the public interest, or there are special circumstances to do so. Care should be taken to ensure as much detail as possible is provided, particularly about conversations, physical descriptions, times and dates. Notes or photographs taken soon after the incident are often useful. If injuries are suffered as a result of the incident with police, it is important that a complainant arrange to see a doctor as soon as possible so a record of the injuries, including photographs, can be made.

Ideally, a complaint should be made as soon as possible because any civil action against police has to be started within two months of an incident section 162 of the PAA). However, an NT Ombudsman complaint can be submitted after court action is commenced if necessary. Disciplinary actions need to be commenced within 6 months of an incident (section 162(6) of the PAA). Criminal actions also need to be commenced within a certain time.

A person who is uncertain about whether their complaint is justified, or who wants advice about how to make a complaint, should seek legal advice, contact the NT Ombudsman's office or the Professional Standards Command (PSC) of the NT Police Force to discuss the matter in confidence. If the police have charged or are likely to charge a complainant with an offence related to the incident they are complaining about, they should always get legal advice before providing details of the complaint to police.

Complaints to the NT Ombudsman

A complaint about police conduct can be made by a person aggrieved by the conduct of a police officer, a third party, or a person representing the aggrieved person or third party (section 21 of the Ombudsman Act 2009 (NT)). Importantly, a third party may only make a complaint only if the complaint raises a substantive issue, or the party has first-hand evidence about the subject matter of the complaint.

Example:
An independent bystander who witnesses a police officer's conduct.

When a complaint is made to a police officer, the NT Ombudsman office must be informed of that complaint (section 65 of the Ombudsman Act 2009 (NT)).

Once a complaint is made to the NT Ombudsman office or to police, the Ombudsman, or their delegate, considers the complaint and determines whether to (section 66 of the Ombudsman Act 2009 (NT):

• Decline to deal with the complaint,
• Refer the complaint for conciliation,
• Refer the complaint to be dealt with by police under the police complaints resolution process,
• Refer the complaint for investigation by a Police Standards Command member where either the Commissioner, or the Ombudsman reports to the parties to the complaint, or
• Investigate the complaint.

If necessary, to make the above determination, the Ombudsman will undertake preliminary inquiries or requests the Professional Standard Command to do so.

A person making a complaint ("complainant") is notified by the NT Ombudsman's office about how their complaint is being handled (section 111 of the Ombudsman Act 2009 (NT). If a complainant is dissatisfied with the outcome of action taken on their complaint, they can ask the Ombudsman to review the matter (see Unsatisfied complainants).

Under section 67 of the Ombudsman Act 2009 (NT), the Ombudsman may refuse to deal with, or discontinue dealing with a complaint if:

• The complaint is trivial, frivolous, vexatious, or not made in good faith
• The complainant does not have a sufficient interest in the complaint
• Disciplinary procedures have started against the police subject officer for their conduct
• The police subject officer has been charged with an offence for their conduct,
• Dealing with the complaint is not in the public interest, or
• A complaints entity has investigated or will investigate the complaint to the same level the Ombudsman would have.

If the Ombudsman decides to investigate a police complaint, they can employ wide-ranging powers to gather information (see section 89 of the Ombudsman Act 2009 (NT)). They can:

• Summon witnesses to attend and give evidence on oath (section 53)
• Compel individuals or organisations to produce documents and other relevant material (section 52)
• Enter any premises occupied by the NT Police Force to inspect those premises and any documents held there (section 54).

The Ombudsman Act 2009 (NT) contains penalties for hindering or obstructing an investigation (see sections 123-129 of the Ombudsman Act 2009 (NT)).

Police complaint resolution process

In practice, the NT Ombudsman office refers most minor level complaints about police conduct to be dealt with by police through either the police Complaints Resolution Process (CRP), or investigation by PSC.

The NT Police CRP can be appropriate where a complaint is minor, or its nature suggests that an informal review process would be more appropriate than a lengthy and resource-intensive investigation. The Police CRP is set out in the police complaints agreement.

The CRP begins when a senior police officer, known as a Resolution Officer (RO) contacts the complainant to discuss the issues they have raised and to request what kind of outcome the complainant is seeking. The officer then speaks to the police subject officer(s) concerned and discusses with them the issues raised by the complainant. Depending on the nature of the complaint, the CRP RO may review relevant police documentation; general orders, legislation and other material that may help resolve the complaint.

The CRP RO then contacts the complainant again, providing them with feedback and / or an explanation indicating what action, if any, may be taken. Similar feedback is given to the police subject officer(s) concerned.

If an apology is considered appropriate, it can, with their consent, be offered on behalf of the police officers involved. An apology can also be offered on behalf of the NT police force as a whole. The CRP RO may decide that an explanation of the police subject officer's actions, the law or police practice and procedures is sufficient, and no apology is required.

It may occasionally be appropriate to facilitate a meeting between a complainant and a police subject officer to discuss the complaint; however, such instances are rare. Should a meeting be arranged, it is imperative that both parties provide their consent to participate.

To resolve a complaint, a CRP RO is expected to use whatever means that are reasonably at their disposal and within acceptable limits. The procedures and means available are flexible. Usually, common sense and the nature of the complaint will determine the way a complaint is handled.

Complaints dealt with under CRP are required to be resolved within 30 days.

Once the CRP is complete, the police must deal with the complaint according to the Police Complaints Agreement (PCA).

Investigation by police

An investigation referred by the NT Ombudsman office to the police is carried out by PSC. The Ombudsman can direct how the investigation should be carried out. If the police disagree with this approach, the Ombudsman can decide to deal with the complaint in a different way (section 84 of the Ombudsman Act 2009 (NT)). For the purposes of the investigation, (PSC) can direct a police subject officer to provide documents or information, and to provide responses and answer questions.

At any time during the investigation, the Ombudsman can decide to defer or discontinue the investigation until disciplinary or court proceedings are conducted into the incident ((section 107 of the Ombudsman Act 2009 (NT)).

The Ombudsman can determine either that the Commissioner of Police reports the outcome to the parties, or that the Ombudsman reports to the parties. Under the former process, after an investigation is complete, the Commissioner of Police informs the complainant and subject police officer(s) about the outcome and also sends a report written to the Ombudsman (section 93 of the Ombudsman Act 2009 (NT)).

Case study

A woman was employed as a casual bar attendant at a football grand final in Darwin. She was approached by four police officers and was asked to accompany them to a nearby building. She was informed that she was suspected of passing money from the cash register to one of her friends who was drinking at the bar. Once inside the building, she was strip-searched.

The woman subsequently complained to the NT Ombudsman office, maintaining that during the incident she was, among other things, unnecessarily frightened and intimidated, and was told very little about what offfences she was alleged to have done.

The NT Ombudsman office then referred the complaint to PSC for investigation.

While the various police officers involved had different views regarding the validity of the woman's complaint, the NT Ombudsman office concluded that the police should have gathered more evidence before approaching her, explained the situation more fully and given her the opportunity to decline to be strip-searched.

As a result, the Ombudsman supported a recommendation made by the police that a letter of apology be sent to the complainant. The Ombudsman also acknowledged that the situation could have been handled better, and that the procedures concerning strip-searching should have been explained more clearly. The Commissioner of Police responded to the Ombudsman's conclusions by writing again to the complainant.

Complaining while in police custody

A prisoner or person in custody who wishes to make a complaint to the Ombudsman must be permitted to make a written complaint, place it in a sealed envelope and have it sent promptly to the Ombudsman. Prison authorities are not allowed to open letters sent between prisoners and the Ombudsman (section 26 of the Ombudsman Act 2009 (NT)). Correspondence from the Ombudsman should be delivered back to the complainant as soon as practicable. Legislative provisions cannot restrict a person's communication with the Ombudsman for the purposes of them making a complaint.

The Ombudsman has the power to investigate an action by Correctional Services and routinely looks at matters raised by prisoners. The Ombudsman can investigate and make recommendations to the Commissioner, which are not binding.

Action that can be taken against police by the Ombudsman

Where the Ombudsman reviews the outcome of a PSC investigation, or conducts their own investigation, the Ombudsman must make an assessment of the police officer's conduct. If the Ombudsman's findings are adverse to a particular individual or to the police, the Ombudsman must, before preparing a report, provide that person or, in the case of police, the Commissioner, with the opportunity to respond. The responses must be fairly and accurately included within the Ombudsman's report.

In their report, the Ombudsman can give recommendations to the Commissioner of Police about what action, if any, should be taken. Under section 101(4) of the Ombudsman Act 2009 (NT), these can include:

• The police officer be charged with an offence
• The officer be disciplined
• Police policy or procedure be amended,
• The matter should be conciliated.

It is important to note that the Commissioner of Police is not obliged to act on recommendations made by the Ombudsman. However, if the Commissioner of Police does not implement these recommendations, the Ombudsman can report to the Police Minister and can prepare a report for tabling in Parliament.

After the CRP or an investigation by the PSC, the Ombudsman can also decide to refer the complaint to the Commissioner of Police for further investigation, or to deal with the complaint in a different way (section 108 of the Ombudsman Act 2009 (NT)).

Unsatisfied complainants

A complainant, either during or after the CRP or investigation by the PSC, can request that the Ombudsman investigate their complaint. However, the Ombudsman must refuse this request if satisfied the issues raised in the complaint are being, or have been, adequately dealt with (section 109 of the Ombudsman Act 2009 (NT)).

The complainant can also request that the Ombudsman vary or revoke a decision, assessment or recommendation where there is significant new information obtained, or where information has not been properly taken into account (section 110 of the Ombudsman Act 2009 (NT)).

Following an investigation by the Ombudsman

The findings in an investigation conducted by the Ombudsman's office are sent to the Commissioner of Police, the complainant, the Minister for Police and the police officer or officers involved. The Ombudsman may make recommendations to the Commissioner of Police and can, if they believe the Commissioner of Police has failed unreasonably to act on those recommendations, send a report or recommendations to the Minister for Police.

Charges against NT police officers

The Commissioner of Police is responsible for the discipline of the NT Police Force. While it may be persuasive, a recommendation by the Ombudsman that a police subject officer be charged with a breach of discipline is not binding on the Commissioner of Police. If the Commissioner of Police is satisfied a breach of discipline occurred, disciplinary proceedings can be instituted, and the officer will go before a disciplinary tribunal.

Disciplinary proceedings must be started within six months of the incident (section 162(6) of the PAA). The Ombudsman can apply for an extension of time to start disciplinary proceedings that arises out of an investigation or CRP, as long as the application is made before the six months is up and the extension sought is not more than 12 months (section 162(7B)).

A police subject officer is entitled to legal representation at any disciplinary hearing. A complainant, however, is not entitled to participate or have legal representation, but may be required to give evidence.

The Commissioner of Police and the tribunal have the power to:

• Impose fines
• Reduce a police subject officer in seniority or rank
• Reprimand, counsel or caution a police subject officer
• Dismiss a police subject officer.

A police subject officer who is charged with a criminal offence is dealt with by the courts in the normal manner (see Going to court).

Complaints about Australian Federal Police

The Australian Federal Police (AFP) is created by the Australian Federal Police Act 1979 (Cth) ("the AFP Act). Under that Act, there are detailed processes for dealing with complaints about the conduct of AFP members and AFP practices.

The members of the AFP operate according to the AFP Act, the common law and the AFP 'Professional Standards'. The AFP 'Professional Standards' are underpinned by the AFP Core Values and the AFP Code of Conduct.

Less serious complaints about conduct (referred to as Category 1 and Category 2) are handled by the Workplace Issues and Complaints Resolution (WICR) team. Category 1 and 2 complaints are matters which may warrant corrective action, but which do not involve serious misconduct or breaches of duty, such as:

• customer service issues, such as discourtesy,
• traffic offences that would not result in criminal charges, and
• failure to comply with the Code of Conduct that results in a failure to meet the standards of behaviour reasonably expected of an AFP appointee, and goes beyond a minor management or customer service issue, that does not, and could not, result in a breach of operational or national security, harm to an individual or reputational damage to the AFP. If a complainant is not satisfied with the way the AFP has dealt with a Category 1 or Category 2 matter, they may complain to the Commonwealth Ombudsman.

More serious (Category 3) complaints about conduct would involve serious misconduct or breaches of duty, such as:

• using excessive force on a person,
• serious breach of law,
• serious failure to comply with the AFP Code of Conduct or AFP Core Value,
• Serious sexual misconduct,
• Workplace bullying,
• Conduct that could be considered a criminal offense.

These matters may result in termination of employment or criminal proceedings. All Category 3 complaints are investigated by AFP Professional Standards , the unit established under the AFP Act to investigate serious misconduct. The AFP is required to notify the Commonwealth Ombudsman of all Category 3 conduct issues it receives.

Corruption issues are described as Category 4 and must be referred to the National Anti-Corruption Commission.

Any person, including a person in custody, can complain about AFP conduct to any AFP appointee or to the Commissioner. Any person can complain to the Commonwealth Ombudsman; the Ombudsman can investigate but will usually refer the matter to the AFP. The AFP must notify the Ombudsman of Category 3 matters and may allocate a matter to the Ombudsman for investigation. While the Ombudsman can investigate, the Ombudsman also regularly reviews the way the AFP, especially its Professional Standards unit, has dealt with conduct and practices issues.

AFP Internal Investigations

Category 3 serious misconduct complaints are investigated by an officer from AFP Professional Standards or another officer specifically authorised by the head of Professional Standards, after consultation with the Ombudsman. The investigator usually interviews the complainant and anyone else, including members of the AFP, who is able to provide information relevant to the complaint.

Powers of the Commonwealth Law Enforcement Ombudsman

Under the AFP Act, at least once every 12 months the Ombudsman must, for the purpose of reviewing the administration of Part V, inspect the records of the AFP conduct and practices issues dealt with over a 12-month period. The Ombudsman may also conduct a review at any time.

The Ombudsman must report to Parliament as soon as practicable after 30 June each year, and its report must include comments about the comprehensiveness and adequacy of the AFP's administration of complaints under the AFP Act.

Charges against members of the AFP

Once a serious misconduct investigation is completed, the AFP Commissioner must ensure that any recommendations from the investigation are fully considered, and that appropriate action is taken in relation to the issues identified. A criminal charge against a member of the AFP is, like a charge against any citizen, tried in the courts.

A person who is the victim of a criminal offence perpetrated by a police officer is entitled to make an application for compensation under the Crimes (Victims Assistance) Act (see Injuries and damage caused by crime).

A complainant may be required to give evidence before a court or the tribunal.

Taking NT Police to Court – Civil Actions

In some cases of police misconduct, such as those involving trespass to a person or property, assault, battery, wrongful arrest, false imprisonment or malicious prosecution, civil court action can be taken.

Criminal proceedings against police are especially difficult because the complaint must be investigated by police. The complaint, however, can be made to the Ombudsman in the first instance, and the Ombudsman can oversee the adequacy and competence of any investigation carried out by police.

In light of the difficulties of obtaining justice for plaintiffs through criminal proceedings, a more realistic course of action may be to rely on civil remedies. However, proving a case in a civil action can also be difficult, lengthy and costly. Any person contemplating an action should attempt to secure independent witnesses and objective evidence such as photographs, Body Worn Video and or CCTV footage from the police and seek expert legal advice (see Legal aid). Considerations when pursuing civil claims and different claims available are discussed in turn.

Northern Territory Liability for the actions of a police officer

The Northern Territory of Australia is vicariously liable for civil wrongs committed by officers of the NT Police Force in the performance or purported performance of their duties. However, the Territory's vicarious liability does not extend to the award of punitive damages (i.e. damages awarded in civil cases to punish a defendant for bad behaviour and to deter them from doing it again) unless the court grants leave for such claims (see Gaykamangu v Northern Territory of Australia [2016] NTSC 26, and R v Zachary Rolfe (No 5) [2021] NTSCFC 6).

The Territory is not liable for the actions of a police offer who is acting outside the course or scope of their employment (Lackersteen v Jones (1988) NTSC 60; (1988) 92 FLR 6). If the conduct of the police officer amounts to a criminal act, a crimes victim's assistance claim against the police officer can be made (see Injuries and damage caused by crime).

Civil Immunity for Police Officers acting in ‘good faith’

A police officer will not be held to be liable for any of the actions described below if they are found to be acting in good faith, or in other words, honestly, in the exercise of a power or performance of a function under the Police Administration Act 1978 (NT) (PAA). This is due to the operation of section 148B (1) of the PAA which sets out that ‘a person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function’ under that Act.

Time limitations to commence civil proceedings against the Police

Time limitations for court proceedings

Any civil court action against a police officer and the Northern Territory of Australia for an act done in accordance with the PAA must be commenced within two months (see section 162 (1) of the PAA). This strict time limitation applies to all civil court actions against the police for alleged misconduct - even when there has been a death in custody, the Director of Public Prosecutions (DPP) is investigating the matter and the exact details of a civil case is unknown to the family members of the deceased.

However, in Johnston v NTA [2014] NTSC 18, the Supreme Court of the Northern Territory acknowledged that potential plaintiffs may not be able to commence proceedings in such a tight timeframe for many ‘valid reasons’ (eg./plaintiff’s incapacitation throughout that period as a consequence of the act or omission of the police officer or inability, despite diligent effort, to ascertain a vital fact or, possibly, identify the police officer), and found that the 2-month time limitation is capable of being extended by a court pursuant to section 44 (1) of the Limitation Act in certain circumstances.

If the conduct of the police officer is outside the scope of, or not authorised, by the PAA, a time limit of three years applies to civil actions (section 12 of the Limitation Act 1981 (NT)).

Time limitations for NT Police Force complaints

Separate to commencing court proceedings, when making complaints to the NT Police Force (NTPF) (which are reviewed by the NTPF Professional Standards Command (PSC)), it is important to take into account section 162 (6) of the PAA, which sets out that disciplinary actions against members of the NTPF shall be commenced within 6 months after the act or omission constituting the alleged breach of discipline was discovered. Lawyers making complaints against police officers have often found that the PSC interprets the phrase ‘6 months after… the alleged breach was discovered’ in this provision as meaning 6 months after the date of the relevant incident. Therefore, if a plaintiff is looking for disciplinary action to be taken against a police officer for a wrongdoing, it is important to ensure that any complaints are lodged within 6 months of the date of the relevant incident.

False imprisonment

False imprisonment occurs when a person is unlawfully restrained against their will or when an unlawful threat of force or assertion of authority forces them to submit to the control of another (Ruddock v Taylor [2005] HCA 48).

In a case of false imprisonment against police, the plaintiff does not need to prove a police officer’s intent to act unlawfully and/or to cause injury to them. It is ‘actionable per se’ which means that the plaintiff does not need to prove actual damage or harm to succeed in their claim.

Some examples of false imprisonment by the police include being arrested where an officer did not have a reasonable basis to believe someone committed a crime or was about to commit a crime, being imprisoned for longer than the period sentenced/stipulated in a remand warrant, being held for an excessive amount of time at a police watch house, being wrongfully stopped, detained, and/or searched by a police officer, or being threatened by a police officer not to move from a spot when a person is not under arrest. False imprisonment cannot be said to have occurred if the arresting police had a warrant or reasonable cause to make an arrest.

To make a successful claim for false imprisonment against the NTPF, the following must be established:

1. Total Deprivation of Liberty: The plaintiff must demonstrate that the police subjected them to a total restraint on their freedom of movement. This means that the person was confined within a fixed area and was unable to leave due to the actions of the police. Partial restraint or restrictions on movement are not enough to establish that a plaintiff was falsely imprisoned.

2. Direct Act of the Police: The restraint must be the direct result of the police officer’s voluntary act. This can include physical restraint, threats, or other actions that prevent the plaintiff from leaving a particular place.
3. The detention of the plaintiff by the police officer was not lawful.

It is up to the police officer to show that the detention was lawful by demonstrating that they had legal justification for the restraint. These justifications can include having reasonable grounds to suspect the commission of a crime and that the arrest was necessary for a legitimate purpose (see, for example, Ruddock v Taylor [2005] HCA 48, Darcy v State of New South Wales [2011] NSWCA 413, NSW v Robinson [2019] HCA 46; (2019) 266 CLR 619).

Malicious prosecution

Malicious prosecution occurs where a person, including a member of the police force, maliciously and without reasonable cause, begins criminal proceedings against another and/or maintains those proceedings.

For a successful claim in malicious prosecution against the NTPF, a plaintiff must prove four things (see A v State of New South Wales [2007] HCA 10, Beckett v State of New South Wales [2013] HCA 17):
• The prosecution was initiated by a member/members of the NTPF;
• The prosecution terminated favourably to the plaintiff (this usually arises where a person has been found not guilty of a criminal offence by judge or jury or has been discharged at committal. The determination of innocence is not required, but merely the absence of any judicial determination of the plaintiff’s guilt).

• The NTPF acted with malice in bringing or maintaining the prosecution; and
• The prosecution was brought or maintained by the NTPF without reasonable and probable cause.’

In a successful claim for malicious prosecution against the police, the plaintiff will need to prove that the police were ‘actively instrumental’ in instituting or maintaining proceedings. This involves the police laying charges or continuing the prosecution, or dominating the DPP’s decision to do so by procuring them to institute or continue the proceeding as to be regarded as really taking the action through them (see Skrijel v Mengler [2003] VSC 270).

It is strongly advised that you seek legal advice if you are interested in bringing a claim for malicious prosecution against the police – the elements of absence of reasonable and probable cause and police malice in bringing and/or maintaining a prosecution can be extremely difficult to prove.

Absence of reasonable and probable cause

In proving absence of reasonable and probable, the state of affairs which existed when the police initiated, instigated or continued the prosecution needs to be considered – this involves consideration of the material that was available for police review at the time, rather than to any material that emerged only after that time (Slaveski v State of Victoria and Ors [2010] VSC 441). The material available to the prosecutor in relation to absence of reasonable or probable cause must be assessed by asking two main questions: What did the prosecutor make of it? What should the prosecutor have made of it?

Absence of reasonable and probable cause is not demonstrated by showing only that there were further inquiries that could have been made before a charge was laid. When a prosecutor acts on information given by others it will very often be the case that some further inquiry could be made (see A v State of New South Wales [2007] HCA 10 at [86]).

Malice by police officer

In relation to the element of malice, the High Court of Australia has held that ‘to constitute malice the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an “illegitimate or oblique” motive. That improper purpose must be the sole or dominant purpose actuating the prosecutor’ (see A v State of New South Wales [2007] HCA 10). A malicious motive must be proven or inferred.

It is easier to prove malice a person is charged with an offence such as assaulting police or resisting arrest in order to justify an arrest by the police. If a court is satisfied that there was no resist or assault of police, and that the police evidence was a concoction, then malice and absence of reasonable or probable cause will be easier to make out (Houda v New South Wales [2005] NSWSC 1053). It is also easier to prove malice by police as compared to other cases where the plaintiff has sustained provable and demonstrable injuries while in police custody and in order to explain/justify the injuries, a police officer has falsely claimed that they were assaulted by the plaintiff and had to respond in self-defence. As the police allegations were a fabrication, a court is more likely to infer malice.

Misfeasance in a Public Office

A claim in misfeasance in a public office against the police involves an intention by an officer to cause harm or knowledge that the officer is acting in excess of their power. For a successful misfeasance claim against a police officer, it is not enough to show that a police officer has committed an act that is beyond their power and has resulted in damage to the plaintiff. A deliberate misuse of public power by a police officer and either an intention by the officer to cause harm or an act by the officer with knowledge that their conduct is beyond power and likely to cause harm is required (see Northern Territory v Mengel (1995) 185 CLR 307).

Examples of when a person may have a claim in misfeasance in a public office against the police include where an individual’s phone has been unlawfully tapped (see Flanagan v Commissioner of the Australian Federal Police [1996] FCA 1210), where a police officer has unlawfully searched them or unlawfully executed a search warrant during criminal investigations (Pinfold v New South Wales [2009] NSWSC 1240), or recklessly or deliberately intimidated or threatened a plaintiff (see Doueihi v State of New South Wales [2020] NSWSC 1065).

Assault and Battery

Assault

An assault occurs where a person, including a police officer, directly and intentionally threatens another person and that threat causes the other person to fear imminent harm (Rixon v Star City [2001] NSWCA 265; (2001) 53 NSWLR 98). A threat can be made by words (written or verbal) (Barton v Armstrong [1969] 2 NSWR 451), conduct or both. The person who makes the threat does not need to intend to actually harm the victim. However, the person making the threat needs to intend to induce a fear of harm in the other person. The harm feared could be harm to the person, their family, close friend or property. The belief that a person will be harmed needs to be reasonable (Logdon v DPP [1976] Crim LR 121).

Battery

A battery occurs where a person, including a police officer, intentionally makes contact with another person without that person’s consent (Carter v Walker [2010] VSCA 340; (2010) 32 VR 1). The contact does not need to cause any harm or damage. Contact will only be a ‘battery’ if the contact is ‘beyond acceptable standards of contact’ (Rixon v Star City (2001) 52 NSWLR 98). The person making contact needed to have intended to do so, but they do not need an angry or hostile state of mind. ‘Contact’ can take many forms including striking, spitting, and forcibly taking blood.

There may be a potential claim for battery against the police where there has been a rough arrest, application of handcuffs where it was not necessary, use of pepper spray or a taser where not required, or a police dog bite.

Defences to Assault and/or Battery

A claim for assault or battery against a police officer will not be successful if a police officer can show their use of force was necessary in the circumstances. This has to be judged in a realistic manner, having considered the reality that police officers often have to make quick decisions in emergency situations (Woodley v Boyd [2001] NSWCA 35, 37; Walker v Hamm [2008] VSC 596.)

Deaths in Police Custody

Where there has been a death in police custody, the police must follow the steps set out in the NT Police Force (NTPF) General Orders on Critical Incidents and Homicide. Usually, this involves immediate reporting to a senior executive in the NTPF, who will then report the matter to the Office of the NT Coroner. The Director of Public Prosecutions will usually commence investigations into whether an officer is criminally liable and will lay charges if they think that is appropriate. While the criminal investigations are ongoing, the family member of a deceased person still only has 2 months to commence civil action against the NTPF (eg./for nervous shock under the Compensation (Fatal Injuries) Act 1974 (NT)). Coronial inquests are investigations into the cause of a death i.e. separate to criminal and civil proceedings, and are mandatory for deaths in custody. Where there is a death in custody, the matter will be listed for an inquest in the Northern Territory Coroner’s Court. The unduly short limitation period to the action means family members of a person who has died in police custody should seek legal advice as soon as they are informed of the death.

Damages for Civil Claims

For the civil torts described above, a number of damages may be available to a plaintiff, including general, compensatory, exemplary and aggravated damages.

Where the civil wrongs of a member of the NTPF has caused a ‘personal injury’ to a plaintiff (eg./ a fatal, pre-natal, psychological/psychiatric injury, an exacerbation or acceleration of a pre-existing injury or a disease), damages under the Personal Injuries (Liabilities and Damages) Act 2003 (NT) (PILDA) may be available to a plaintiff. Medico-legal expert reports will almost always be required to show that a personal injury has resulted due to the actions of the police.

It is important to note that where a plaintiff is an offender under the Correctional Services Act 2014 (NT) (i.e. a youth/adult prisoner or an individual subject to a non-custodial offender) Part 4A of the PILDA limits the damages that can be awarded for the torts of assault, battery and false imprisonment. Specifically, section 32E limits the award of damages in the following manner:

• In relation to assault constituted by strip searching the offender without lawful reason, limits the award of damages to $5,000, and in any other case of assault to $2,500;
• In relation to battery, limits the award of damages to $5,000;
• In relation to false imprisonment of one day or less, limits the award of damages to $2,000;
• In relation to false imprisonment of periods exceeding one day, decreases the amount progressively, with a maximum award of $250 per day for periods of 60 days or more; and
• stipulates that total damages for a series of related civil wrongs (i.e. where 2 or more civil wrongs are committed against an offender that occur at approximately the same time or occur over a period of time are committed by the same person or group of persons) are capped at $15,000.

Further, the PILDA also stipulates that a court must not award aggravated or exemplary damages in relation to civil wrongs against offenders.