Wednesday, March 21, 2012

False arrest claim against police sparks self-defence laws debate

Louis Andrews | The Canberra Times | March 5, 2012

A Canberra man is suing police for unlawfully arresting him, manhandling him, spraying him with capsicum spray and leaving him languishing in a cell for 10 hours.

It's a case that's sparked political debate, with the Greens accusing Attorney-General Simon Corbell of tabling a bill ''based on a false premise''.

But the Attorney-General has rejected the charge, arguing the Greens have misunderstood the way self-defence laws operate.

Two police protection bills - one from government and one from the opposition - are on hold after the legal community raised fears legal rights could be stripped.

The issue will now come under scrutiny twice: in a Legislative Assembly committee and by a separate body of academics and law enforcement experts.

Meanwhile, lawyers for Danny Andrew Klobucar have filed papers in the ACT Supreme Court accusing the Australian Federal Police and the arresting officer of negligence.

Mr Klobucar, through law firm Ben Aulich and Associates, is seeking damages after he was unlawfully detained by police outside a Civic nightclub in July 2010.

They argue the incident left their client with bruises and abrasions, as well as exacerbating his underlying depression.

Criminal charges - including causing harm to police - against the man were thrown out of the ACT Magistrates Court last year after the magistrate agreed the arrest was unlawful.

In a rare move, Magistrate Beth Campbell awarded indemnity costs in favour of the defendant.

Police figures provided to The Canberra Times reveal the legal bill reached $30,000.

The lower court heard Mr Klobucar was concerned about a fallen friend at the time, believing his friend had been knocked out.

The prosecution alleged Mr Klobucar was taken into custody because they were concerned he might injure the fallen man.

But the court heard police failed to consider alternatives to arrest.

The civil claim alleges a struggle ensued after police tried to force Mr Klobucar towards a police vehicle, and the plaintiff was subdued with capsicum spray.

His lawyers say police ''failed to take any or any adequate steps to decontaminate the plaintiff in a timely manner''.

It is also alleged Mr Klobucar spent about 10 hours in police cells before being released.

The Australia Federal Police and the individual police officer have given formal notice they will respond to the allegations.

Defences have yet to be filed.

Mr Klobucar's acquittal of all criminal charges was cited by Mr Corbell as justification for a new bill designed to protect police from assault.

Currently self-defence provisions, harking back 400 years, allow defendants to use reasonable force to resist what they believe to be unlawful arrest.

The changes would mean so long as police officers successfully argued they honestly believed the arrest was lawful then self-defence could not apply - even if it wasn't lawful.

Defendants would still be able to claim self-defence in the face of harm or threats from police.

But concerns were raised by the ACT Bar Association, Mr Aulich and veteran barrister Jack Pappas, who represented Mr Klobucar in the Magistrates Court.

Greens legal affairs spokesman Shane Rattenbury has written to Mr Corbell urging him to abandon the bill because it was based on a false premise.

Mr Pappas never argued his client acted in self-defence, although he later suggested the case demonstrated how police could act beyond their authority.

Mr Rattenbury urged the government to broaden the inquiry into police protection to include gathering more data or looking at creating a stand-alone criminal offence.

But Mr Corbell said: ''I do not believe that it is appropriate for citizens to be entitled to use of force to resist arrest by a police officer who is acting in good faith.''

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