At Maat’s Method, we do a lot of claims against the police. Mostly, these are claims for unlawful arrest, excessive force, false imprisonment and other torts. But a question we get asked very often is, “can I do something about police not properly investigating a crime? Can I do something about the police ignoring my pleas for help, or dismissing me?”.
This is actually an uncertain and still developing area of law. Legally, the question translates to:
Is there a civil claim/cause of action that can be brought against police for failing to prosecute a crime and/or failing to properly investigate a crime?
The supplementary questions are:
a. Is there a statutory duty that applies to police which we can say has been breached/neglected?
b. Is there a duty of care that arises that we can say has been breached, thus making a claim for damages on the basis of negligence?
Is there a Statutory Duty?
In NSW, the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) deals with the powers and responsibilities of the NSW Police. It provides police with a suite of powers, which are subject to the limits in that Act.
Part 9 of LEPRA deals with investigation and questioning powers, but only with respect to placing limits on those powers for suspects already in custody. Otherwise, LEPRA does not place any positive statutory duty onto police to investigate or prosecute crimes, take evidence into account, etc.
The Police Act 1990 governs the administration of the NSW Police. Section 201, titled “Neglect of duty etc” states as follows (emphasis added):
A police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence.
Construed broadly, “carry out any lawful duty” may be taken to apply to any common law duty and/or duty of care that could be established. This section has never been applied in any case to hold this meaning, and is instead used internally by the NSW Police Force as a means of disciplining its officers.
It is a civil penalty provision carrying a maximum penalty of 20 penalty units, and Section 207 deals with the proceedings for such offences, which are criminal in nature. Nonetheless, Section 201 may be used to argue that there exists a statutory duty for police to carry out their lawful duties, which may include properly investigating and taking into account evidence of serious offences.
It is worth noting that Section 213 protects police officers from personal liability in circumstances where they act in good faith, as follows:
A member of the NSW Police Force is not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law (whether written or unwritten).
So, in summary:
1. If a “lawful duty” (including a duty of care) can be established; and
2. The police officer can be shown not to have acted in good faith; then
3. There may be a pathway to a civil claim for damages against Police for failure to carry out that duty.
Do Police Owe a Common Law Duty of Care?
There have been several cases on this question over time in NSW. In 2015, Michael v Chief Constable of NSW Police [2015] AC 1732 saw a statement that “the general law of tort applies as much to the police as to anyone else” [at 37].
However, a UK case (Hill v Chief Constable of West Yorkshire (Hill) [1989]) created the “doctrine of immunity”, being that police do not owe a duty to members of the public generally to protect against harm caused by criminal conduct. This had led to a number of cases alleging that police do owe such a duty being summarily dismissed on this basis.[1]
Then, Smith v State of Victoria [2018] VSC 475 (Smith) and Fuller-Wilson v State of New South Wales [2018] NSWCA 218 (Fuller-Wilson), whilst not going so far as to firmly establish a novel duty of care owed by police, did allow the plaintiffs to argue that police owed a duty of care in each case, and acknowledged that it was possible that one could be owed.
The facts in Smith are helpful to consider. The plaintiffs in this application were a mother and three children. They were the victims of multiple acts of family violence by the children’s father over the course of a decade. The plaintiffs allege that Victoria Police officers owed the family a duty of care and that police subsequently breached that duty, causing the plaintiffs psychological harm. The plaintiffs also allege that Victoria Police acted contrary to its obligations as a public authority under the Victorian Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) and in doing so breached the family’s human rights as protected by the Charter.[2] They argued that a duty of care is owed to a person by a police officer in the particular circumstances and the current case law does not deny the potential existence of this duty. The plaintiffs contended that the law in Australia regarding police officers’ duty of care is in a state of development. The defendants refuted these arguments claiming there was no duty at law.
Justice Dixon noted that as the existence of a novel duty of care is alleged the court must apply the salient features approach, per Crimmins v Stevedoring Industry Finance Committee 1999 (200 CLR 1). His Honour said that this involves:
A close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor… affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.
Ultimately, the defendant’s application was dismissed by Dixon J. His Honour found that the plaintiffs’ claims regarding the duty of care may be arguable once the facts have been established on close analysis at trial. In dismissing the defendant’s application, His Honour referred to Hill’s ‘doctrine of immunity’.
In Fuller-Wilson, there are two salient points:
First, Basten JA commented on s14 of the Police Act 1990 (NSW), which reads:
[i]n addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State.
His Honour noted the above provision ‘may provide a reasonable argument that all police functions have a statutory basis’ [at 31]. He also went on to comment that it is ‘not possible to identify with precision the scope of duties of a constable under the general law, as adopted by s14 of the Police Act’.
Second, and problematically, Basten JA said that the voluntary assumption of responsibility is a ‘recognised exception’ to the common law doctrine that there is no duty to protect persons against harm caused by a third party (quoting from Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4; [2018] 2 WLR 595, [69]). However, there is an exception to this principle that arises where an officer has made a representation to an individual, who has placed a reliance on that representation. So, an important question becomes: did police ever make representations that they would investigate/prosecute?
The judges in both cases were firmly of the view that the duty will not arise other than in exceptional circumstances. The most relevant paragraphs are [49] and [50] which read as follows (citations included):
There are numerous cases in different jurisdictions where claims based on the failure of police to respond effectively to calls for help, or based on allegedly negligent investigations, have been dismissed because there was no duty of care. [53] Of these, two are worthy of further consideration. The first, Cran v State of New South Wales (2004), [54] involved a person charged with supply of a drug, who was remanded in prison where he remained for a period of nine weeks during which time he said he was repeatedly bashed and witnessed a rape and murder. The plaintiff was known to be vulnerable and had been identified by police as a suicide risk. Police failed to inform the laboratory which was testing the substance, thought by police to be a prohibited drug (LSD), that the plaintiff was in custody. The tests proved negative and the plaintiff was released.
53. These include Hill (supra); Wilson v State of New South Wales (2001) 53 NSWLR 407; [2001] NSWSC 869; Quintano v State of New South Wales [2002] NSWSC 766; Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92; State of New South Wales v Klein (supra); Halech v State of South Australia (2006) 93 SASR 427; [2006] SASC 29; Rush v Commissioner of Police (supra); Cumming v New South Wales [2008] NSWSC 690; Rickard (supra); Australian Capital Territory v Crowley (2012) 7 ACTLR 142; [2012] ACTCA 52; Gesah v Ross [2013] VSC 165; Groom v State of South Australia [2017] SASCFC 35.
54. See fn 53.
The Court held no duty of care was owed because (a) the plaintiff was not in their custody at the time the injury was suffered and (b) relying on the principle stated by the High Court in Tame v New South Wales, [55] no duty was owed with respect to “any aspect of police investigation and in particular what might be described as purely ministerial tasks”. [56]
55. (2002) 211 CLR 317; [2002] HCA 35.
56. Cran at [50] (Santow JA); see also [74] (Ipp JA).
Finally, and more recently, in Cullen v State of New South Wales [2023] the Supreme Court of NSW found that police officers owed a bystander at a rally a common law duty of care, breached that duty by recklessly knocking him to the ground, and thus caused injury to the Plaintiff. This case is useful in that a duty of care is acknowledged, but such acknowledgement was based on the close proximity of the plaintiff to the police and the fact that police were in the commission of a statutory power (trying to arrest somebody else) but did it negligently, causing injury to the plaintiff. It would be difficult to apply this case to one where a plaintiff is trying to argue that Police should have exercised a power (to investigate), rather than having done so negligently. There also isn’t actually any specific ‘power to investigate’, but only corollary powers to arrest, search, seize etc.
Conclusion:
The Courts have found that it is open to argue that the common law in Australia should recognise a wider scope of liability for police in respect to a duty of care owed to the public. However, this has never actually been successfully done. In order to succeed, you would at least want a case with “exceptional circumstances”, where:
1. Police are exercising a statutory power;
2. That exercise is done negligently or unlawfully; and
3. This causes direct harm to an individual.
In many cases, police were not exercising a statutory power, but instead a member of the public is saying that they should have. There is precedent in Tame v NSW that no duty was owed with respect to “any aspect of police investigation and in particular what might be described as purely ministerial tasks”. There is also a recognised exception to the common law doctrine of negligence that there is no duty to protect persons against harm caused by a third party which, in addition to the ‘doctrine of immunity’ explained above and the precedent of Tame v NSW, would in my opinion make such a case difficult, if not impossible, to run.
If we found out a bit more about the evidence that was available to police, and whether they were explicit in ignoring it, maybe there is some potential, particularly if a direct representation was made to a member of the public that an investigation would occur and we have evidence of same (see Fuller-Wilson at [40]).
In the absence of such representation, if the Court found police liable for not properly and fully investigating an alleged crime, it would in essence create a positive duty for police to investigate every potential crime before them; being a duty which I think they’d be very reluctant to establish.
[1] See State of New South Wales v Spearpoint [2009] NSWCA 233; New South Wales v Klein [2006] NSWCA 295; Rickard v State of New South Wales [2010] NSWSC 151.
[2] NSW does not have an equivalent Act to the Charter.