Court of Appeal of Supreme Court of Victoria decision holds that Charter of Rights relevant to jury deliberations but not to damages
Gebrehiwot v State of Victoria [2020] VSCA 315
Summary
The Court of Appeal of the Supreme Court of Victoria considered the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’) to jury deliberations and damages, in an appeal relating to claims of false imprisonment and battery against Victoria Police.
On appeal, Mr Gebrehiwot (‘the applicant’) argued that the Charter could allow grounds for consideration of breach of Charter rights in a situation where the applicant already had grounds for a claim in damages (including exemplary damages) arising from tortious conduct. The applicant did not seek to argue that the Charter gave rise to a claim in damages in and of itself.
Other grounds of appeal that the applicant advanced were:
that the trial judge had misdirected the jury on lawful justification on the conduct of the police officers, and did not direct the jury on section 462A of the Crimes Act;
that trial judge’s directions to the jury on the applicant’s attack on one of the police officer’s credibility was unfair to the applicant;
that there was no evidence in support of the jury’s verdict that the police officer’s conduct was lawfully justified, or that the evidence weighed so heavily against the verdict, that the verdict was unreasonable and unjust; and
the jury’s verdict that the police officer ‘taking the applicant to the ground’ was a ‘use of force not disproportionate to the objective’ was an unreasonable verdict, because the evidence weighed so heavily against it.
It was held that the County Court judge was correct to conclude that a breach of section 38 of the Charter could not be used as a basis on which to seek damages, including exemplary damages, or to expand an independently existing damages claim. The Court of Appeal found, however, that the judge was incorrect to hold that section 32 of the Charter was irrelevant to the jury’s deliberations because it may have affected its consideration of whether section 462A Crimes Act 1958 (Vic) (‘Crimes Act’) applied in the circumstances. But as there was no ground of appeal that identified an error by the judge in the application of section 32 of the Charter, a human rights-compatible interpretation of s 462A was not considered.
Facts
In November 2014, the applicant was questioned by four police officers at Maddern Square in Footscray who had attended the square in the course of investigating an unrelated attempted armed robbery in the vicinity. The applicant was known to one of the officers, Senior Constable Miller (‘SC Miller’), and was not suspected of being involved in the attempted armed robbery.
Details of the interaction between police and the applicant were contested at trial, including whether the applicant spat at the officers, was otherwise physically aggressive, and whether the applicant had been told he was under arrest.
CCTV footage of the incident showed the applicant was pushed and then taken to the ground by SC Miller in what was described by SC Miller as a ‘neck sling’ manoeuvre. The applicant was restrained and handcuffed whilst on the ground. The applicant remained handcuffed until paramedics arrived on the scene around 30 minutes later and transported the applicant by ambulance to hospital, where he received surgery for his injury. The applicant had suffered a compound fracture of his right index finger distal phalanx. The applicant’s finger subsequently developed osteomyelitis, an infection in the bone, and consequently in March 2015, he underwent partial amputation of his right index finger.
In November 2017, the applicant brought proceedings in tort in the County Court against the State of Victoria (‘the defendant’) claiming damages for battery and false imprisonment. Specifically, the conduct was alleged to constitute ‘police torts’ for which the defendant was liable, pursuant to section 74 of the Victoria Police Act 2013 (Vic). The applicant also claimed that police had acted incompatibly and/or failed to give proper consideration to his human rights, in contravention of section 38(1) of the Charter. The defendant admitted that force was used but relied on the defence that police had lawful justification to use force, in accordance with section 462A of the Crimes Act.
The verdict of the jury at first instance showed it accepted the defence.
Decision
Was the Charter ruling made in error?
The applicant claimed aggravated and exemplary damages based on several elements of the defendant’s conduct. One of the grounds upon which the applicant argued exemplary damages should be awarded was ‘to recognise the unlawfulness of the conduct by the police members, which was in breach of [the applicant’s] human rights under the Charter’.
The County Court judge ruled that unlawfulness under the Charter is not relevant in any way to the question of exemplary damages. On appeal, the applicant argued that the sections 39(1), (3) and (4) of the Charter preclude a claim for damages based solely on breach of the Charter. The applicant argued that it was open for breach of the Charter to be taking into account in a damages claim against a public authority, where the claim has arisen for reasons other than the Charter, such as the tortious conduct here.
The Court of Appeal found that the judge was correct to conclude that a breach of section 38 is not relevant to a claim for damages, noting that the prohibition on damages in the Charter is unequivocal, and includes compensatory as well as aggravated and exemplary or punitive damages. The Court of Appeal found that it would be contrary to the plain language of the prohibition in section 39(3) to read it as permitting an award of damages in any of those categories.
The applicant also submitted that any direction the County Court judge gave to the jury about the meaning and application of section 462A had to be informed by an interpretation that was compatible with the human rights that were engaged (in accordance to section 32 of the Charter). The County Court judge’s failure to give a direction on section 462A meant Her Honour did not consider and apply the interpretive obligation under the Charter in construing section 462A.
The Court of Appeal considered that the County Court judge was indeed incorrect to hold that section 32 of the Charter was irrelevant to the jury’s deliberations. However, their Honours did not deliberate on this question themselves, noting that there was no ground of appeal that identifies an error by the County Court judge in the application of section 32 of the Charter.
The issue of lawful justification under section 462A
Section 462A of the Crimes Act provides that ‘a person may use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence.’
The Court of Appeal found that section 462A contained two requirements:
Whether the person genuinely had a subjective belief that what they were doing was necessary for the outcome they sought to achieve; and
An objective requirement that the force used is not disproportionate to what the person wants to achieve.
It was held that, in the circumstances of the trial, to properly instruct the jury, the County Court judge must explain the subjective and objective requirements of section 462A and the ways in which they differ. It was necessary for the judge to apply those requirements to the circumstances of the case. Furthermore, it was necessary for the judge to explain that the jury had to assess, as an additional requirement, whether the degree of force used was objectively not disproportionate to the outcome achieved – namely the arrest.
The Court of Appeal found that the jury received no such instruction, and the absence of a direction on this central issue in the trial was not remedied by the submissions made by counsel for the respondents. The jury was left to undertake an ‘uninformed and impressionistic’ assessment on whether the force used by the police officer in the takedown of the applicant was justified. Having found that the jury would not have necessarily reached the same verdict if directed in accordance with the law, the Court of Appeal found that it was a substantial wrong or miscarriage of justice.
The Court of Appeal found that the jury verdict should be set aside and the matter remitted to the County Court for a retrial.
Commentary
This case is significant as it is a police tort case which discusses the role of the Charter in jury deliberations and damages. It was held that a breach of section 38 of the Charter could not be used as a basis for an entitlement to damages in and of itself, but that section 32 of the Charter is relevant to a jury’s deliberations. The Court of Appeal has also left open the determination of an interpretation of section 462A that is human rights-compatible.
The full case can be read here.
Tracey Yeung is a graduate lawyer on secondment at the Human Rights Law Centre.