By Meghana Sharma
If you are victimised by a member of the police force in Victoria, fighting for compensation can be an arduous and ultimately fruitless exercise.
A recent communication by the United Nations Human Rights Committee (UNHRC) brings this defect in the Victorian legal system to light. The findings refer to the case of Corinna Horvath, whose story is not unique.
On the night of 9 March 1996, police officers arrived at the home of 21-year-old Corinna Horvath, wanting to inspect her car. As they did not have a warrant, Horvath and her partner used force to compel them to leave.
The officers did leave, but returned a short time later with reinforcements. In the raid that ensued, Horvath was brutally assaulted. She was pulled to the floor and repeatedly punched in the face, breaking her nose and causing her to lose consciousness. Her other injuries included bruising to the face and body, a chipped tooth, cuts and abrasions.
Despite the fact that she was unconscious and bleeding, Horvath was handcuffed and dragged to the van. The way she was handcuffed prevented her from reducing the blood flow from her nose or from tending to herself in any way. Horvath was not taken to a hospital or given any sort of immediate medical treatment, but instead was left in a cell, screaming in pain. Eventually, she was taken to hospital after being discovered by a police doctor. Although she recovered, she has some ongoing health issues arising from the assault.
At trial and appeal
Horvath, along with others who were assaulted that night, sued the individual officers responsible for the assaults and the State of Victoria. They won and were awarded damages, but this was rendered meaningless by an idiosyncrasy in the law of Victoria that prevented them from accessing their full compensation.
An established principle of law in Victoria is that the State is not liable for the actions of police officers when they are exercising an independent discretion. In allocating liability, much turns on the interpretation of section 123 of the Police Regulation Act 1958. The phrase carries two components, that the conduct be “necessary and reasonable” and that it be “done in good faith.”
The rationale behind the legislation is that the police, who are uniquely vulnerable to civil liability in the tasks they perform, should be insured in cases where they have acted with good intentions. But the State escapes liability where the conduct of the police force it arms, trains and empowers to act, is excessive and malicious.
If the relevant conduct satisfies both the “necessary and reasonable” and “done in good faith” requirements, the State must accept liability. If not, police defendants are personally liable and the plaintiff depends on the limited financial circumstances of an individual police officer.
At trial, Judge Williams construed “necessary and reasonable” broadly, applying to any action that had some connection to the duty being carried out. Despite this broad interpretation, the main assault of the night on Horvath was not “necessary and reasonable”, and for other reasons was clearly not done in good faith. For this assault, liability fell to the individual police defendants, limiting the amount Horvath could access.
The broad interpretation of “necessary and reasonable” did impose liability on the State for the negligent planning and supervision of the raid. His Honour held that as there was a connection between this negligent conduct and the discharge of police duties, it fell into the “necessary and reasonable” category. As the State conceded that the actions in question were done in good faith, both the “necessary and reasonable” and “in good faith” requirements were fulfilled, conferring liability. His Honour also found that this negligent conduct facilitated some of the lesser assaults that had occurred and liability for these also transferred to the State.
On the State’s appeal, however, “necessary and reasonable” was construed more narrowly. It was held that surrounding circumstances and the specific nature of the conduct must be considered, rather than simply categorizing acts as falling within or without the duty being discharged. By this reasoning, the negligence in planning and supervision was not deemed to be necessary and reasonable, despite it being done in good faith.
Furthermore, the link between the negligence and the assaults was considered too tenuous when all the facts of the case were taken into account. In particular, it was considered that the cause of the assaults was primarily the independent decisions made by the police officers rather than the decisions made by an individual officer in a planning and supervisory role. The State was absolved of liability.
This meant the Horvath’s full award of $143,525 was payable by the individual police defendants, one of whom declared bankruptcy and the others not having the means to pay. Horvath walked away with a marginal proportion of what she was owed.
The problem with the state of the law for victims is obvious. The more flagrant the transgression, the more difficult it is to be compensated by the State by virtue of section 123.
A new mechanism for full compensation?
The law in Victoria will change in December this year requiring the state to pay full compensation to a claimant against a police officer who has acted wrongfully. However, in order to be eligible for payment through this mechanism, the Minister must be satisfied that the claimant has exhausted all other avenues for accessing compensation
This is unsatisfactory because the claims process is costly and onerous, with few legal practitioners willing to take on a long-term case where the payout often does not match the legal fees accrued. This is usually compounded by the fact that victims are often from a disadvantaged background and may be dealing with physical and psychological trauma during the ordeal.
The new law will not comply with UN standards. According to UNHRC jurisprudence, avenues for claiming remedies that are unacceptably lengthy, or have minimal prospects of success, cannot be expected to be exhausted. In its argument, the State of Victoria claimed that Horvath had not exhausted all domestic remedies, such as claiming under the Victims of Crime Assistance Scheme. The Committee was not convinced that this was an effective vehicle for redress.
The inadequacy of the current state of the law is recognised by the UNHRC. In its communication, section 123 was deemed incompatible with article 2, paragraph 2, of the International Covenant of Civil and Political Rights (ICCPR), which states that a State party cannot avoid responsibility for violations of the covenant by its agents.
Article 2, paragraph 3, also requires States to make reparation to individuals whose rights have been violated. “Making reparation” means both the awarding and enforcing of remedies. In the present case, the award of compensation to victims of crime has been undermined by the practical impossibility of having the award enforced.
From the would-be claimant’s point of view, the benefits of a simple State-pays-all system is clear. For members of the police force, there would be peace of mind in the knowledge that the family home is safe should an unfortunate event lead to a civil suit.
While it may be argued by the taxpayer that the State should not be liable for the excessive conduct of “a few bad eggs”, it must be borne in mind that the conduct of individual police officers is the business of the State, and improper conduct is a failure of the State.
Victoria is bound by the ICCPR, and is required to incorporate its recommendations into domestic law to provide victims of abuse like Corinna Horvath with an effective remedy, but there is no way this can be enforced. The onus is now on grassroots organisations and the community legal sector to keep this issue on the political agenda and ensure that the momentum for change is harnessed.
Meghana Sharma is a law student at the University of Melbourne. She is a volunteer for the Police Accountability Project at Flemington and Kensington Legal Centre.
Acknowledgements: Dyson Hore-Lacy SC; Sophie Ellis, Solicitor, Flemington and Kensington Legal Centre.