The recent increase in civil litigation against police officers has caused the Police Association of NSW grave concern. Accordingly, association representatives have held discussions with Police Minister John Watkins.
He agreed that: “NSW police officers
should not be held personally liable for actions taken against the
NSW police force whilst performing their duties in good faith.”
Minister Watkins undertook to examine expeditiously legislative
amendments that would rectify the problem. The association welcomed
this step, as no minister had been prepared to take it previously.
The association trusts that Minister Watkins will receive the requisite
support within Government for this initiative. The experience of Leading
Senior Constable Bill Nankervis reveals that the issue of police officer
liability cannot be resolved soon enough.
Bill Nankervis performed mainly single-unit policing duties as lockup
keeper in a small country town, from 1995 to 2000. In 1998, a member
of the public with a lengthy criminal history, and penchant for claiming
victim compensation, alleged that he was a victim of an aggravated
armed robbery.
Nankervis instigated an investigation of the allegations. Subsequent
inquiries, over a number of weeks – including numerous witness statements
– corroborated and established that the alleged victim’s allegations
and statements were entirely false.
“The history of this person claiming victim’s compensation,” says
Nankervis, “combined with information from various members of the
community that this person had boasted of claiming compensation for
prior fraudulent claims, led me to believe that the motive of the
current allegation – aggravated armed robbery – was to make a fraudulent
claim to the Victim’s Compensation Tribunal.”
The offender was subsequently arrested and cautioned. Nankervis also
wanted to try to establish his motive for the offence by questioning
him. At the time of the arrest, the offender resisted police.
The usual diatribe then began, with threats against police. These
continued at the custody police station. Then, under video surveillance,
the offender began to spit, punch, kick, and head-butt the dock repeatedly.
The offender requested that he be interviewed – with a relative present.
ERISP was prepared and contact made with the relative, who later attended.
While the relative was present in the charge rooms, the offender recommenced
his abuse and attempts to harm himself by punching and head-butting
the dock. He then refused the interview. The ERISP tapes were returned
and the offender charged with make false statement resulting in police
investigation, DUI and resist police.
Video surveillance
To the NSW Police, the offender subsequently made a complaint that
he had been assaulted by police at the station. The allegations were
that, over lengthy periods, and repeatedly through his time in custody
at the police station, he was continually and severely beaten. These
allegations were made despite the fact that he was, at all times,
under video surveillance in the dock of the charge room until his
release. He also asserted that senior police stood around and watched
the ongoing assaults and did not intervene. An internal investigation
was initiated and, after some months, Nankervis was advised that he
had been cleared of all allegations.
At defended hearing, the offender was convicted of the offences for
which he had been arrested. A small fine was imposed.
In November 2001, Nankervis received a departmental e-mail form
the Civil Litigation Unit. It informed him that he had failed to submit
application for representation by the Crown Solicitor’s Office in
relation to litigation against him.
“Unfortunately,” says Nankervis, “this was the first I had heard
of it. I had received no notification of proceedings, and no process
had been served upon me. I contacted the Litigation Unit, and they
faxed notice upon me, consisting of a statement of a claim, launched
by this convicted offender, for $750,000.
“I was identified as the first defendant; the second defendant being
the State of NSW. The claim was based on allegations of assault, unlawful
imprisonment etc, with the plaintiff seeking damages in relation to
all the usual tick-the-box conditions he was suffering as a result
of his 22nd arrest – anxiety, depression, unable to perform home duties,
work or hold employment, and so on.
“Not knowing what to do or how to respond, I was advised by a member
of the Litigation Unit to consult the Commissioner’s Handbook
on how to make application for representation. I immediately complied
and the application was duly recorded as passing through the chain
of command.
“I was advised by the Litigation Unit to basically sit tight and
not worry too much about it, as suing police is becoming an ever-increasing
national pastime of criminals and lawyers.”
Some months later, Nankervis was advised that the Litigation Unit
had not received his application for representation. Further, court
appearances were imminent, and he had no representation.
Says Nankervis: “I was assisted by senior members of my command,
who made representation on my behalf to the Litigation Unit, as all
records indicated my application had been forwarded months prior.
It eventuated that the application was lost/misplaced and eventually
located at the Litigation Unit.
“...I suffered a great deal of stress and inablility
to focus on work.”
“I was further advised by the Litigation Unit that a conference with
legal defence counsel had been arranged for January 2002. However,
I was precluded from attending that conference, as my application
for representation had not yet been processed and approved – as a
result of it going astray for months. I was advised not to worry because
it would be processed within a short time.”
In January 2002, Nankervis received written notification from the
Sydney District Court registrar to appear at the court on a date in
February. Some 20 hours before he was due to appear, he received written
correspondence from the Crown Solicitor’s Office instructing solicitor
that she had received no instruction to appear on his behalf – he
was therefore unrepresented. The notification also advised that he
should urgently arrange his own private representation.
“I immediately contacted the Police Association,” says Nankervis,
“and the matter was resolved in a number of hours, whereby the Crown
Solicitor’s Office would provide me with representation on that date.
However, any further representation was dependant upon my application
being assessed.
“The usual to-and-fro then occurred to locate my application in the
system. Eventually, in March 2002, I was notified that Crown representation
had been granted by the Attorney-General’s Department.
“Between the date of notification of civil action against me and
the granting of representation by the Attorney-General’s Department,
I suffered a great deal of stress and inability to focus on my work.
“There was no support from the service, apart from the occasional:
‘Don’t worry about it. It’ll be all right’. This was combined with
the fiasco of the lost/missing application for representation, and
facing imminent court proceedings without consultation or legal representation.
I was in limbo for months, awaiting the outcome of representation.”
Once legal representation had been appointed, the Litigation Unit
of the police service advised Nankervis that the mater was now in
the hands of the Crown Solicitor’s Office, with which any future inquiries
should be made. The Crown Solicitor’s Office advised Nankervis that
a conference would be arranged with the legal counsel in due course.
“The greatest concern I had,” says Nankervis, “was whether I could
be held personally financially liable for any damages sought by the
plaintiff.
“Despite my repeated requests for conference, I did not, at any
stage, have direct discussions with any legal representative. I was
forwarded legal documents from both the court and Crown Solicitor’s
Office that I did not entirely understand, as I am not versed in litigation
processes.
“The instructing solicitor appointed to me was from a non-English-speaking
background, and heavily accented. I had great difficulty understanding
her in conversation over the phone.”
The matter proceeded to trial in the Sydney District Court and was
set down for two weeks in May. Upon receiving the trial notification
in November and in the absence of any legal conference, Nankervis
prepared further written submissions of defence and forwarded them
to the Crown Solicitor’s Office via the chain of command.
In the following February, the instructing solicitor requested further
information in relation to the impending trial and Nankervis attended
the Civil Litigation Unit, at police headquarters, at the request
of members of that unit.
“During that meeting I was berated for having forwarded the correspondence
of November 2002 to the solicitor appointed to act on my behalf,”
says Nankervis. “I was further advised that, had the Attorney-General
become aware of my correspondence – advising of further grounds of
defence and additional information in relation to my defence – my
Crown representation could have been withdrawn.
“I was then advised that the Litigation Unit had made a decision
to settle the matter out of court in favour of the plaintiff, and
that I had forwarded the correspondence of defence indicated I did
not support such settlement.”
Unfortunately, Nankervis had not been advised of any proposed settlement.
“On the contrary,” he says, “all correspondence I had received from
the Crown Solicitor’s Office stated the matter was going to trial.
Even the correspondence of the day before indicated that.”
The reason given for settlements was that Nankervis had arrested
for the purpose of questioning.
Says Nankervis: “I have always asserted in my grounds for defence
that I arrested because I had reasonable cause to suspect that the
offender had committed an offence. I gained that reasonable cause
from a number of weeks of gathering evidence.
“Yes, I had the intention of questioning. Like most cops, establishing
motive and any other information relevant to the offence is important.
Defrauding government departments is a serious offence, and people
are regularly jailed for it. Last time I looked at the Crimes Act,
powers of arrest were still there.”
Costly trial
Cost-effectiveness was another reason for settlement. It was envisaged
that the trial would last three weeks at an estimated cost of $150,000,
and that a convicted criminal would accept less than that in a settlement.
However, Nankervis does not agree with this reasoning. “The way
I see it, it may be cost-effective but it’s morally bankrupt,” he
says. “Your average tax-paying wage-earner in this state may also
have concerns over this policy, and apparent caving in to convicted
criminals and litigation-generating lawyers.
“I inquired as to all the assault allegations made and reminded the
Litigation Unit that there was substantial evidence to refute those
allegations. I was informed that the plaintiff’s lawyers had no interest
in pursuing those allegations. Stupidly, I inquired if I had any redress
in relation to this. No, of course I don’t.”
Nankervis was relieved to hear that settlement meant he was not personally
liable. “After all the allegations, internal inquiries, defended court
hearing, civil action, lack of support, incompetence from individuals,
the right hand knot knowing what the left hand is doing etc, the matter
was finally off my back after four-and-a-half years,” he says.
But Nankervis is, justifiably some would say, indignant. “I did the
wrong thing,” he says. “When this convicted criminal made the false
allegations in the first place, I should not have diligently investigated
the matter. I should have just completed a snappy COPS entry, the
matter not being cleared, the alleged armed robber undetected and
our alleged victim could have claimed his victim’s compensation.
“I don’t know the settlement amount. As usual, no one tells me anything.
I know one thing: it was a lot more than he would have got from a
fraudulent claim on victim’s compensation!”
Nankervis does not want to single out any person or unit within the
service, but has been shaken by his experience.
“Receiving a statement of claim with your name listed next to the
word defendant and, shortly thereafter, the amount of $750,000 leaves
a rather sick feeling in your stomach,” he explains. “That’s the start,
and then it goes on for years.
“Management needs to provide real support and legal information to
those affected. The Crown Solicitor’s Office and Litigation Unit do
not provide direct representation or assistance to the individual.
They are purely looking after the State’s interests, and the individual
– the real person – is just tacked on the end.”
The Police Association of NSW had been lobbying the government and
NSW police force to assume greater responsibility for civil cases
against its members for many years.
Following the recent spate of claims – 82 NSW police officers
were targeted in 44 civil litigation claims filed in 2002-03 –
Police Minister John Watkins agreed to examine legislation to rectify
the problem.
On November 18, 2003, the legislation was passed through the Upper
House of the NSW Parliament. Changes under the new laws mean police
officers carrying out their duties will no longer be sued as individuals.
Further, the legislation confirms that police are Crown employees
and therefore cannot be personally liable for any injury or damage
while carrying out their duties in good faith. Litigants seeking damages
for actions committed by police would have to claim against the Crown.
Police Association president, Ian Ball said: “Previously,
the association has been forced to fund the legal defence of members,
which ought to have been the responsibility of the employer.
“Many members acting in the course of their duties were previously
unsupported by their employer when sued, despite there being no evidence
that they had acted improperly.”
The new legislation came into force on January 1, 2004, and is retrospective
in its nature to cover matters already filed at court.
