Over the years, my firm has acted for many, many clients who have been charged with offences they did not commit, have pleaded not guilty to those charges, and have ultimately been acquitted on those charges by a magistrate or a jury. In many cases, a judge or magistrate has ruled that the evidence was not even sufficient to justify the charge, so as a matter of law the defendant should never have even been charged. Results of that kind are not uncommon, but they do not mean that any of those successful defendants would necessarily succeed in a civil suit against the police or anyone else for negligence.
In fact, a verdict of not guilty in our criminal courts is not a finding that the defendant is innocent of the charge and did not commit the crime. It consists of no more than a decision by the magistrate or jury that, on the evidence presented to them, they could not be satisfied beyond any reasonable doubt the defendant did it. That falls well short of finding the defendant didn’t do it.
However, to be successful in any civil negligence suit, the plaintiff must first establish three vital elements. Firstly, they must show the defendant owed them a duty of care, secondly that the defendant breached that duty, and thirdly that damages resulted from that breach.
Here in Australia, the High Court has not yet recognised that a duty of care is owed by police officers to citizens to properly investigate crimes. There are several recent cases which suggest the Courts may, at some stage, come to acknowledge such a duty of care in extraordinary circumstances, but that concept has not yet been embraced by our Common Law. Moreover, even if such a duty were ever to be acknowledged, it would likely be confined to a duty to protect victims of crime from further harm, rather than a general duty to competently investigate crime.
Some Common Law jurisdictions, such as Canada, recognise the tort of ‘negligent investigation’, which invests Police Officers with a duty of care to criminal suspects. But, to date, our courts have preferred to adopt the general proposition that well-intentioned police should be able to do their job – however incompetently – free of any threat of litigation against them.
However, that’s not quite the end of the story. Here in Australia, our courts do recognise the tort of ‘Malicious Prosecution’, but that is a somewhat higher hurdle to leap. To prove Malicious Prosecution, a plaintiff must establish much more than simple ineptitude on the part of the officer/s involved. They must prove that the officer’s decision to charge them was made maliciously and with malicious intent. Establishing that a Police officer charged someone for an improper purpose is generally quite difficult to establish, but history has proved it to be not impossible. While such suits are relatively rare, there have actually been a number of successful Malicious Prosecution claims prosecuted here in Queensland over the last decade and more.
Frist published in Ocean Road Magazine: www.oceanroadmagazine.com.au
