Children sue over arrest flaw

Nick Ralston | SMH | March 25, 2012



Class action ... Musa Konneh was the first to sign up to legal action against the NSW government over the database errors. Photo: Ben Rushton

TWENTY-ONE children wrongfully arrested because of a computer error have joined a class action against the NSW government.

The move comes after the government failed to deliver on a promise made last June to fix the problem with the Department of Justice computer system, which police use when making arrests. Solicitors involved in the class action said that since then at least 11 children had been wrongfully arrested because of out-of-date information on the system.

Vavaa Mawuli, a senior solicitor with the Public Interest Advocacy Centre who is co-ordinating the action, said young people continued to be wrongfully detained, despite the class action. The Department of Justice's computer system, known as JusticeLink, did not fully sync with the police computer database. This meant police did not immediately have access to changes in a person's court records after they had appeared before a magistrate and had their bail conditions varied or dropped.

A police source said it was frustrating for officers, who were acting in good faith on the information that was available to them.

Last June, Musa Konneh became the first young person to join the class action seeking compensation over his wrongful detention.

Mr Konneh was arrested, strip-searched and spent a night in jail because the police computer database failed to recognise that all charges against him had been dismissed in the Children's Court four days earlier.

The Sun-Herald can reveal 30 young people have complained to the solicitors involved in the class action about being wrongfully arrested because of the system error, which dates back to 2005. Of the 30, 21 have instructed them that they want to be part of the action.

The law firm Maurice Blackburn, which is involved in the class action, said it believed the number involved could grow to as many as 200.

A young person involved in the class action was arrested at his Caringbah flat at 11.30pm on a Thursday in 2010 because he had not been home when police called at 8pm. But the then 17-year-old's bail conditions had been altered by a magistrate a month earlier, and his curfew had been extended to 9pm - a condition he had complied with. The teenager was taken to a juvenile justice centre, detained overnight and then taken and held in a cell at Parramatta Children's Court until the matter was thrown out by a magistrate.

Last June, the Minister for Police, Mike Gallacher, said the problem needed to be fixed urgently and that he did not believe it would be an issue in a year's time.

A spokeswoman for the minister yesterday said the government was seeking a response from the NSW Police Force and the Department of Justice. NSW Police said new safeguards had been put in place and it was working to fix the problem with the support of the government.

Last financial year, police were forced to pay more than $5 million to compensate people it had falsely imprisoned and assaulted. It was a $1 million increase on the previous year.

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.

Taser Finding: Bugmy Case

Damien Carrick | The Law Report | 28 February 2012

A decision in the Broken Hill Magistrates Court has made it clear that a policeman used excessive force and breached standard police procedures when he tasered Mr Bugmy in February 2011.

Guests: Felicity Graham, Lawyer with the Aboriginal Legal Service, NSW & ACT

Listen to episode here

Williams v Director of Public Prosecutions (NSW) [2011] NSWSC 1085

In the matter of Williams v DPP, the Supreme Court of New South Wales this week handed down a hugely important decision clarifiying the arrest power of Police under s.99 of the Law Enforcement (Power and Responsibilities) Act ("LEPRA").

The Court was required to decide:

(1) whether the power of an officer to arrest without warrant on the basis of reasonable suspicion  - the power found in s.99(2) - is constrained by s.99(3), which states that arrest must be not be carried out unless Police suspect it is necessary to achieve one of the stated purposes in the subsection, examples of which include to ensure the attendance of the person at Court; and

(2) where an arrest does not comply with s.99(3) whether the arresting officer was acting "in the execution of duty".

Prior to LEPRA, an arrest could be challenged as being 'improper'-  rather than 'unlawful' - on the basis that arrest was unnecessary, for example, where the offence was trivial, where Police knew the person's name and address or had established their identity, and there was no concern they either would not attend Court, or continue to commit the offence. 

The principle relied upon is that arrest is a measure of last resort, and that, where appropriate, less intrusive mechanisms, such as the issue of a summons (or later Court Attendance Notice), should be employed to commence proceedings.

In Fleet v District Court of NSW and DPP v Carr the Supreme Court established clear authority for these propositions, which also appear in the NSW Police Handbook. However, the only available sanction against an improper arrest is the exclusion of evidence improperly obtained, via s.138 Evidence Act (NSW). 

Rather than 'real' evidence, the evidence sought to be excluded by defence practitioners following an improper arrest very often fell into the category of evidence concerning the commission of further offences such as resist arrest, assault police, and intimidate police. 

In order to succeed, defence would need to overcome the argument that even where Police make an improper arrest they generally do not set out to "obtain" evidence of subsequent offences committed against them

In Carr, Smart AJ applied a 'but-for' test to determine the issue: that is, if the Police had not improperly arrested the person, there would have been no subsequent offences committed against Police while the person was under arrest. His Honour also made clear that such a test should be confined only to the facts of that case. 

Following Carr, a series of further decisions by the Supreme Court, most notable among them DPP v Coe and DPP v AM, developed s.138(3) such that evidence of further offences might be said to have been "obtained" by an improper arrest where the commission of such offences either had been intended by the Police or assessed by the Court as having been objectively likely to have followed the improper arrest. 

Cases fought on this basis were won only because the evidence concerning the further offences was excluded, leaving no evidence on which prosecutions could rely.

An easier path to defeat the same sort of charges involving Police is found in the argument that Police were not acting "in the execution of duty" - an essential element of proof for each of the resist, assault and intimidate charges. However, to succeed in this argument, defence must establish that Police were acting "unlawfully" rather than merely "improperly". Provided an arrest was justified by reasonable suspicion, it would not be found to be "unlawful" simply by reason of it being unnecessary.

After the introduction of LEPRA, it has not been clear what consequences will flow from a failure to comply with s.99(3). Although the sub-section says police "must not arrest .. unless", a submission that failure to comply with the sub-section was unlawful - meaning Police were not acting in the execution of their duty - has been met with an inconsistent response from the bench.

However, with the decision of Williams it is now clear that an arrest found to be unnecessary with reference to the s.99(3) criteria may not only be improper in the Carr sense, but will also constitute an illegality and defeat a charge where "execution of duty" is an element.

Congratulations go to the Aboriginal Legal Service for carting the case from Kyogle Local Court to the Supreme Court. Just as they did with Carr, the ALS continue to push the boundaries of the law in this area.