If you or someone you know is considering suing or taking action against the Police, State of New South Wales, Western Australia, ACT Government or another person or organisation, you should seek legal advice as soon as possible.
At Hugo Law Group holding police accountable for any illegalities or overreach in power is at the heart of our ethos. Successfully defending charges arising from an unlawful arrest or other forms of police brutality is often only the first step towards a just outcome for clients. Seeking proper compensation for the deprivation of liberty and any physical or psychological injuries can be just as important.
You can only make a claim in certain circumstances, and there are often time limits on bringing such action, which is why you need an experienced lawyer in your corner. Seeking comprehensive and practical advice at an early stage will best ensure that your rights and interests are protected. It is important that your lawyer properly prepares and presents your claim to assist you in getting the best possible outcome.
If a police officer has used unreasonable force while interacting with you, you may have a cause of action against the State of New South Wales.
If you are alleging that the conduct of a police officer amounts to battery, you must prove that:
Once you have proved these elements, the State will need to prove that the touching was NOT intentional or negligent. If the State proves this on the balance of probabilities, you will be required to provide evidence disproving the State.
What does ‘balance of probabilities mean’?
Balance of probabilities is the standard to which you must prove your case. To satisfy this standard, you must convince the Judge that your version of events is more likely than not to be the correct version.
What is a ‘limitation period’?
Limitation period refers to the time in which you must bring your claim before the Court. It is a period defined by law. If you fail to bring your claim within the limitation period, your claim expires. That is, you will not be able to sue the State outside of this period unless exceptional circumstances exist. The limitation period for battery is 3 years.
When will it be ‘unlawful’ for an officer to touch me?
A police officer is permitted to use reasonable force only if it is reasonably necessary to do so. What is reasonable varies from case to case and depends on the circumstances of your matter. For example, it will be unreasonable for an officer to tackle a person who is not fleeing or resisting arrest. In these circumstances, the touching may be unlawful.
What does ‘negligent’ mean?
In this context, the officer would have negligently touched you if a reasonable person in the circumstances would have known that the conduct of the officer would result in physical contact.
What is the process involved in suing the State?
As you are suing the State, you are the person starting a civil claim. As such there are forms and fees which must be filed and paid. It is important that you seek legal advice as lodging the incorrect form may result in your matter being thrown out.
Once you have filed your documents, the State will respond to those documents within 28 days. As this is a civil case, your matter may be resolved through mediation and settlement conferences, a trial, or a combination of both.
What will mediation and settlement conferences involve?
Mediation takes place when both parties agree to resolve the matter outside of the Courts. Alternatively, the Court may order both parties to attend mediation. Simply put, mediation is a formal meeting were your legal representatives and the State’s legal representatives will attempt to reach an outcome that is favourable to both sides. If successful, the parties will then go to Court for a Consent Judgment. This alternative to litigation is much cheaper and time efficient. If mediation is unsuccessful, the matter will then return to Court and proceed to Hearing.
What will a trial involve?
A trial also referred to as a hearing will involve both parties going to Court and arguing their case. The hearing will generally proceed in the following order:
Damages that can be sought:
Damages (more commonly known as compensation) is a sum of money paid to a person who has been injured or harmed in some way. Depending on the nature of your injuries, you may be awarded:
What are ‘general damages’?
General damages are to compensate you for the consequences of the defendant’s actions. It includes financial loss of earnings (i.e. wages), as well as any inconvenience caused by the defendant’s conduct such as distress, loss of liberty, humiliation and damage to your reputation/character.
What are ‘aggravated damages’?
Aggravated damages are to compensate you for additional damage caused as a consequence of the defendant’s actions. To be awarded aggravated damages, the defendant’s actions must constitute serious misconduct. What is serious misconduct varies from case to case. However, it appears that serious misconduct involves maltreatment and lack of remorse.
What are ‘exemplary damages’?
Exemplary damages is a sum of money paid to you by the defendant as a form of punishment. It is paid in circumstances where the defendant had consciously and actively sought to disregard your rights.
What are ‘special damages’?
Special damages must be applied for. It is an application to recover costs arising from previous criminal proceedings, this may include loss of wages, cost associated with defending charges, etc.
Will I be compensated for legal costs associated with suing the police?
If your matter is finalised by way of a hearing, the losing party will be ordered to pay a large percentage of the winning party’s costs. That is, if you win, the State will be ordered to pay a portion of your legal fees. On the other hand, if you lose, you will be ordered to pay the State for a portion of their legal fees.
If you are alleging that the conduct of a police officer amounts to an assault, you must prove that:
What does ‘balance of probabilities mean’?
Balance of probabilities is the standard to which you must prove your case. To satisfy this standard, you must convince the Judge that your version of events is more likely than not to be the correct version.
What is a ‘limitation period’?
Limitation period refers to the time in which you must bring your claim before the Court. It is a period defined by law. If you fail to bring your claim within the limitation period, your claim expires. That is, you will not be able to sue the State outside of this period unless exceptional circumstances exist. The limitation period for assault is 3 years.
When will it be ‘unlawful’ for an officer to use threaten to use force or violence?
A police officer is permitted to use reasonable force only if it is reasonably necessary to do so. What is reasonable varies from case to case and depends on the circumstances of your matter. For example, it will be unreasonable for an officer to threaten that they will arrest you in circumstances where an arrest is not permitted or justified.
What does ‘reasonable ground to fear that the threat will be carried out’ mean?
In this context reasonable grounds means that based on the circumstances you were in, an ordinary person would have believed that the threat made by the officer would have been carried out and this threat would have made an ordinary person fearful.
What is the process involved in suing the State?
As you are suing the State, you are the person starting a civil claim. As such there are forms and fees which must be filed and paid. It is important that you seek legal advice as lodging the incorrect form may result in your matter being thrown out.
Once you have filed your documents, the State will respond to those documents within 28 days. As this is a civil case, your matter may be resolved through mediation and settlement conferences, a trial, or a combination of both.
What will mediation and settlement conferences involve?
Mediation takes place when both parties agree to resolve the matter outside of the Courts. Alternatively, the Court may order both parties to attend mediation. Simply put, mediation is a formal meeting were your legal representatives and the State’s legal representatives will attempt to reach an outcome that is favourable to both sides. If successful, the parties will then go to Court for a Consent Judgment. This alternative to litigation is much cheaper and time efficient. If mediation is unsuccessful, the matter will then return to Court and proceed to Hearing.
What will a trial involve?
A trial also referred to as a hearing will involve both parties going to Court and arguing their case. The hearing will generally proceed in the following order:
Damages that can be sought:
Damages (more commonly known as compensation) is a sum of money paid to a person who has been injured or harmed in some way. Depending on the nature of your injuries, you may be awarded:
What are ‘general damages’?
General damages are to compensate you for the consequences of the defendant’s actions. It includes financial loss of earnings (i.e. wages), as well as any inconvenience caused by the defendant’s conduct such as distress, loss of liberty, humiliation and damage to your reputation/character.
What are ‘aggravated damages’?
Aggravated damages are to compensate you for additional damage caused as a consequence of the defendant’s actions. To be awarded aggravated damages, the defendant’s actions must constitute serious misconduct. What is serious misconduct varies from case to case. However, it appears that serious misconduct involves maltreatment and lack of remorse.
What are ‘exemplary damages’?
Exemplary damages is a sum of money paid to you by the defendant as a form of punishment. It is paid in circumstances where the defendant had consciously and actively sought to disregard your rights.
What are ‘special damages’?
Special damages must be applied for. It is an application to recover costs arising from previous criminal proceedings, this may include loss of wages, cost associated with defending charges, etc.
Will I be compensated for legal cost associated with suing the police?
If your matter is finalised by way of a hearing, the losing party will be ordered to pay a large percentage of the winning party’s costs. That is, if you win, the State will be ordered to pay a portion of your legal fees. On the other hand, if you lose, you will be ordered to pay the State for a portion of their legal fees.
If you are alleging that you have been falsely imprisoned or wrongfully arrested, you must prove that:
What does ‘balance of probabilities mean’?
Balance of probabilities is the standard to which you must prove your case. To satisfy this standard, you must convince the Judge that your version of events is more likely than not to be the correct version.
What is a ‘limitation period’?
Limitation period refers to the time in which you must bring your claim before the Court. It is a period defined by law. If you fail to bring your claim within the limitation period, your claim expires. That is, you will not be able to sue the State outside of this period unless exceptional circumstances exist. The limitation period for false imprisonment/wrongful arrest is 3 years.
When amounts to a ‘deprivation of liberty’?
In this context, you must prove that your liberty (i.e. will to move freely) was totally restrained as a result of your detention. Examples of this include:
When will my detention be unlawful?
Police have the power to arrest and detain you only if certain conditions are satisfied. If those conditions are not satisfied, the arrest is unlawful. As such, it is important that you seek legal advice to determine whether the arrest was unlawful.
NOTE: once you prove that the officer intentionally deprived you of your liberty, the burden is on the officer to prove that your detention was lawful. However, it may be ideal to strengthen your case by proving that it was unlawful.
What is the process involved in suing the State?
As you are suing the State, you are the person starting a civil claim. As such there are forms and fees which must be filed and paid. It is important that you seek legal advice as lodging the incorrect form may result in your matter being thrown out.
Once you have filed your documents, the State will respond to those documents within 28 days. As this is a civil case, your matter may be resolved through mediation and settlement conferences, a trial, or a combination of both.
What will mediation and settlement conferences involve?
Mediation takes place when both parties agree to resolve the matter outside of the Courts. Alternatively, the Court may order both parties to attend mediation. Simply put, mediation is a formal meeting were your legal representatives and the State’s legal representatives will attempt to reach an outcome that is favourable to both sides. If successful, the parties will then go to Court for a Consent Judgment. This alternative to litigation is much cheaper and time efficient. If mediation is unsuccessful, the matter will then return to Court and proceed to Hearing.
What will a trial involve?
A trial also referred to as a hearing will involve both parties going to Court and arguing their case. The hearing will generally proceed in the following order:
Damages that can be sought:
Damages (more commonly known as compensation) is a sum of money paid to a person who has been injured or harmed in some way. Depending on the nature of your injuries, you may be awarded:
What are ‘general damages’?
General damages are to compensate you for the consequences of the defendant’s actions. It includes financial loss of earnings (i.e. wages), as well as any inconvenience caused by the defendant’s conduct such as distress, loss of liberty, humiliation and damage to your reputation/character.
What are ‘aggravated damages’?
Aggravated damages are to compensate you for additional damage caused as a consequence of the defendant’s actions. To be awarded aggravated damages, the defendant’s actions must constitute serious misconduct. What is serious misconduct varies from case to case. However, it appears that serious misconduct involves maltreatment and lack of remorse.
What are ‘exemplary damages’?
Exemplary damages is a sum of money paid to you by the defendant as a form of punishment. It is paid in circumstances where the defendant had consciously and actively sought to disregard your rights.
What are ‘special damages’?
Special damages must be applied for. It is an application to recover costs arising from previous criminal proceedings, this may include loss of wages, cost associated with defending charges, etc.
Will I be compensated for legal cost associated with suing the police?
If your matter is finalised by way of a hearing, the losing party will be ordered to pay a large percentage of the winning party’s costs. That is, if you win, the State will be ordered to pay a portion of your legal fees. On the other hand, if you lose, you will be ordered to pay the State for a portion of their legal fees.
If you are alleging an individual engaged in misfeasance in public office, you must prove that the defendant:
What does ‘balance of probabilities mean’?
Balance of probabilities is the standard to which you must prove your case. To satisfy this standard, you must convince the Judge that your version of events is more likely than not to be the correct version.
What is a ‘limitation period’?
Limitation period refers to the time in which you must bring your claim before the Court. It is a period defined by law. If you fail to bring your claim within the limitation period, your claim expires. That is, you will not be able to sue the defendant outside of this period unless exceptional circumstances exist. The limitation period for misfeasance in public office is 6 years.
Who is a ‘public officer’?
There is no single definition of who a public officer is. A recent NSW Court of Appeal decision indicated that the definition varies across various governmental departments and therefore to be determined on a case by case basis. Not all public servants are public officers. Generally, a public officer is a person is entitled to exercise certain powers that the ordinary citizen cannot.
What is a ‘public power’?
A public power refers to powers given to public officer. Generally, these powers are conferred upon the officer through legislation and regulations.
What does ‘knew or recklessly indifferent’ mean?
To argue that the defendant knew that their actions will cause you harm, you must be able to convince the Court that at the time of the alleged unlawful conduct, the defendant was aware of the harm that their conduct may cause you. Alternatively, you may wish to argue that the defendant was recklessly indifferent to any risk of harm. To argue the alternative, you must convince the Court that the defendant turned their mind to the possibility of you suffering yet continued to carry out their conduct.
What is the process involved in bringing a civil claim?
As you are suing the defendant, you are the person starting the civil claim. As such there are forms and fees which must be filed and paid. It is important that you seek legal advice as lodging the incorrect form may result in your matter being thrown out.
Once you have filed your documents, the defendant will respond to those documents within 28 days. As this is a civil case, your matter may be resolved through mediation and settlement conferences, a trial, or a combination of both.
What will mediation and settlement conferences involve?
Mediation takes place when both parties agree to resolve the matter outside of the Courts. Alternatively, the Court may order both parties to attend mediation. Simply put, mediation is a formal meeting were your legal representatives and the defendant’s legal representatives will attempt to reach an outcome that is favourable to both sides. If successful, the parties will then go to Court for a Consent Judgment. This alternative to litigation is much cheaper and time efficient. If mediation is unsuccessful, the matter will then return to Court and proceed to Hearing.
What will a trial involve?
A trial also referred to as a hearing will involve both parties going to Court and arguing their case. The hearing will generally proceed in the following order:
Damages that can be sought:
Damages (more commonly known as compensation) is a sum of money paid to a person who has been injured or harmed in some way. Depending on the nature of your injuries, you may be awarded:
What are ‘general damages’?
General damages are to compensate you for the consequences of the defendant’s actions. It includes financial loss of earnings (i.e. wages), as well as any inconvenience caused by the defendant’s conduct such as distress, loss of liberty, humiliation and damage to your reputation/character.
What are ‘aggravated damages’?
Aggravated damages are to compensate you for additional damage caused as a consequence of the defendant’s actions. To be awarded aggravated damages, the defendant’s actions must constitute serious misconduct. What is serious misconduct varies from case to case. However, it appears that serious misconduct involves maltreatment and lack of remorse.
What are ‘exemplary damages’?
Exemplary damages is a sum of money paid to you by the defendant as a form of punishment. It is paid in circumstances where the defendant had consciously and actively sought to disregard your rights.
What are ‘special damages’?
Special damages must be applied for. It is an application to recover costs arising from previous criminal proceedings, this may include loss of wages, cost associated with defending charges, etc.
Will I be compensated for the legal cost associated?
If your matter is finalised by way of a hearing, the losing party will be ordered to pay a large percentage of the winning party’s costs. That is, if you win, the defendant will be ordered to pay a portion of your legal fees. On the other hand, if you lose, you will be ordered to pay the defendant for a portion of their legal fees.
If you are alleging that you have been maliciously prosecuted, you must prove that:
What does ‘balance of probabilities mean’?
Balance of probabilities is the standard to which you must prove your case. To satisfy this standard, you must convince the Judge that your version of events is more likely than not to be the correct version.
What is a ‘limitation period’?
Limitation period refers to the time in which you must bring your claim before the Court. It is a period defined by law. If you fail to bring your claim within the limitation period, your claim expires. That is, you will not be able to sue the State outside of this period unless exceptional circumstances exist. The limitation period for malicious prosecution is 6 years.
What does ‘terminated in my favour’ mean?
Criminal proceedings are said to have terminated in your favour if the proceedings did not result in a conviction. There are a number of ways in which criminal proceedings can be terminated in your favour, these include:
What does ‘without reasonable and probable cause’ mean?
Without reasonable and probable cause means that the Prosecutor commenced or continued criminal proceedings against you despite the fact they did not honestly believe that the evidence against you was sufficient.
What does ‘maliciously’ mean?
Proving malice required that you prove that the prosecutor’s motivations were not to achieve justice. Rather the prosecutor’s motivations were ill and intended to cause you harm or were otherwise in bad faith. Proving malice can be a notoriously difficult element. Although there may be strong suspicions of malice it is often a very difficult task to obtain some piece of evidence that proves a prosecutor’s actual malice.
Who is the ‘prosecutor’
It can be a crucial part of a malicious prosecution suit, and not always easy, in identifying the appropriate ‘prosecutor’. It is usually the Officer in Charge of the investigation of the matter but can instead, or also, be the Director of Public Prosecutions (DPP). Whether the Officer in Charge is included as the ‘prosecutor’ can depend on how involved they remain in a proceeding as it travels through the court and trial process. The person bring the suit must identify each prosecutor, through evidence, responsible for initiating and/or maintaining the prosecution.
What is the process involved in suing the State?
As you are suing the State, you are the person starting a civil claim. As such there are forms and fees which must be filed and paid. It is important that you seek legal advice as lodging the incorrect form may result in your matter being thrown out.
Once you have filed your documents, the State will respond to those documents within 28 days. As this is a civil case, your matter may be resolved through mediation and settlement conferences, a trial, or a combination of both.
What will mediation and settlement conferences involve?
Mediation takes place when both parties agree to resolve the matter outside of the Courts. Alternatively, the Court may order both parties to attend mediation. Simply put, mediation is a formal meeting were your legal representatives and the State’s legal representatives will attempt to reach an outcome that is favourable to both sides. If successful, the parties will then go to Court for a Consent Judgment. This alternative to litigation is much cheaper and time efficient. If mediation is unsuccessful, the matter will then return to Court and proceed to Hearing.
What will a trial involve?
A trial also referred to as a hearing will involve both parties going to Court and arguing their case. The hearing will generally proceed in the following order:
Damages that can be sought:
Damages (more commonly known as compensation) is a sum of money paid to a person who has been injured or harmed in some way. Depending on the nature of your injuries, you may be awarded:
What are ‘general damages’?
General damages are to compensate you for the consequences of the defendant’s actions. It includes financial loss of earnings (i.e. wages), as well as any inconvenience caused by the defendant’s conduct such as distress, loss of liberty, humiliation and damage to your reputation/character.
What are ‘aggravated damages’?
Aggravated damages are to compensate you for additional damage caused as a consequence of the defendant’s actions. To be awarded aggravated damages, the defendant’s actions must constitute serious misconduct. What is serious misconduct varies from case to case. However, it appears that serious misconduct involves maltreatment and lack of remorse.
What are ‘exemplary damages’?
Exemplary damages is a sum of money paid to you by the defendant as a form of punishment. It is paid in circumstances where the defendant had consciously and actively sought to disregard your rights.
What are ‘special damages’?
Special damages must be applied for. It is an application to recover costs arising from previous criminal proceedings, this may include loss of wages, cost associated with defending charges, etc.
Will I be compensated for legal cost associated with suing the police?
If your matter is finalised by way of a hearing, the losing party will be ordered to pay a large percentage of the winning party’s costs. That is, if you win, the State will be ordered to pay a portion of your legal fees. On the other hand, if you lose, you will be ordered to pay the State for a portion of their legal fees.
Hugo Law Group is a law firm that is focused on protecting and defending your rights. Drawing on decades of experience, our team of criminal lawyers will guide you through the legal process, providing comprehensive, honest and strategic advice – qualities that give us our renowned reputation.
Whether you want to plead not guilty, you are looking to secure the best possible sentence, or a loved one wants to apply for bail, it is essential to have an experienced team of criminal defence lawyers in your corner.
Seeking comprehensive and practical advice at an early stage will best ensure your rights and interests are protected. Our lawyers will properly prepare and present your case to assist you in getting the best possible outcome.
At Hugo Law Group, we will clearly explain what your rights and obligations are so that you can make informed decisions about how to deal with the police and the court process.
Even if you have not yet been charged with a criminal offence, you should seek advice from a lawyer at an early stage to ensure that your rights and interests are protected.
Hugo Law Group is the market leader in criminal defence law, providing exceptional representation to people facing serious criminal charges.
As leaders in criminal defence, we know that every story has two sides. We defend yours.
Get in contact with us today or feel free to call us at 02 9696 1361 (Sydney), 02 5104 9640 (Canberra), 08 6255 6909 (Perth), or 07 5552 1902 (Northern NSW) and find out how we can help you.