The Court of Appeal of the Supreme Court of Victoria considered the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to jury deliberations and damages, in an appeal relating to claims of false imprisonment and battery against Victoria Police.
Read MoreOn 25 September 2020, the Victorian County Court held that use of body-worn camera footage (‘BWC footage’) obtained from police, ambulance, prison officers, and other prescribed persons under the Surveillance Devices Act 1999 (Vic) (‘the Act’) cannot be used by courts in civil proceedings.
Read MoreThe High Court of Australia unanimously held that the search warrant relied upon by the Australian Federal Police to enter and search the residence of journalist, Ms Annika Smethurst, was invalid. The invalidity of the search warrant rendered the AFP's entry into and search of Ms Smethurst's residence unlawful and an act of trespass.
Read MoreThe recent decision in Cruse v State of Victoria [2019] VSC 574 concerns the use of force by police during a raid to arrest an individual suspected of committing a terrorist offence. The target of the raid sued the State of Victoria for injuries sustained during his arrest by police.
Read MoreIn a recent interlocutory ruling, Justice Bell of the Supreme Court of Victoria excluded from evidence admissions obtained from an elderly Italian man who spoke limited English during a police interview conducted without an interpreter.
Read MoreThe UK Court of Appeal has upheld the exercise of a police power under Schedule 7 of the Terrorism Act 2000 (UK) (the Act) to stop and question a person to determine whether they are or have been 'concerned in the commission, preparation or instigation of acts of terrorism'. Importantly, the Court has also declared that Schedule 7 is incompatible with the right to freedom of expression under article 10 of the European Convention of Human Rights (the Convention), insofar as it applies to journalistic material.
Read MoreIn the recent decision the Supreme Court of Appeal of South Africa overturned a decision of the High Court of Johannesburg to hold that the Minister of Police was vicariously liable for the wrongful conduct of certain members of the South African Police Service towards a domestic violence victim.
Read MoreThe Supreme Court of the Northern Territory has upheld the right to liberty by excluding evidence of offences committed after a legal, but improper, arrest by police officers for drinking in a public place.
Read MoreOn 29 July 2015, the Court of Appeal, by majority, allowed an appeal by Nassir Bare against a decision of a single judge of the Supreme Court. The trial judge upheld the original decision of the Director (Director) of the Office of Police Integrity (OPI) not to investigate a complaint against a member of Victoria Police of cruel, inhuman or degrading treatment. The Court of Appeal quashed the Decision and ordered the Independent Broad-based Anti-corruption Commission (IBAC) – which has since replaced the OPI – to reconsider Mr Bare's complaint in accordance with the Charter of Human Rights and Responsibilities Act 2006 (Charter).
Read MoreTo be covered by the Equal Opportunity Act 2010 (Vic) (the Act), members of the public alleging discrimination by police need to prove that the discrimination occurred in the provision of ‘goods and services’. A recent Victorian Civil and Administrative Tribunal (VCAT) decision clarifies the definition of ‘services’ in the Act as it relates to policing.
Read MoreThe Ontario Court of Appeal in Canada has unanimously held that Toronto Police breached the appellant’s rights to freedom of expression and liberty during the 2010 G20 summit when preventing him from entering a certain part of the city after he did not consent to a search of his belongings. The Court found that such conduct was not authorised as a common law police power.
Read MoreThe United Kingdom Supreme Court has rejected a challenge to the long-standing rule that the police owe no duty of care in negligence in the context of protecting victims from potential future crimes.
Read MoreThe Supreme Court of Victoria found that while the police did have the power to conduct a random stop and license check of Mr Kaba, the officers’ subsequent coercive questioning of him disproportionately limited his rights to privacy and freedom of movement under the Victorian Charter and was therefore unlawful.
Read MoreThe UK High Court has found that systemic failures by police during a criminal investigation may amount to torture, inhuman or degrading treatment under article 3 of the European Convention on Human Rights. The Court held that in cases of particularly severe violent acts, such as rape, the police have a duty to conduct an investigation in a timely and efficient manner. Operational failures by the police meant that a rapist was not apprehended as early as he could have been, leaving him at large to continue to rape a significant number of women. The manner in which the police behaved towards the victims of such crimes was also found to amount to a breach of article 3.
Read MoreThe European Court of Human Rights has found that the failure by Romanian authorities to adequately investigate whether a police officer who shot Mr Gramada in the thigh had used excessive force was violation of the prohibition on torture, inhuman or degrading treatment (article 3, European Convention on Human Rights).
The Romanian authorities and courts had concluded that the police officer was justified in using force in the circumstances, even though his actions were disproportionate to the threat he faced, because he thought he was being threatened by armed men, and was scared and confused. However, the ECtHR noted that this conclusion was based on acceptance of the police officer’s testimony despite its inconsistency with other evidence, and highlighted serious flaws in the investigation, including the failure to obtain a ballistics report, and the failure to reconstruct the events on-site, which was normally standard procedure in these kind of cases. In these circumstances, the criminal investigation that had been conducted did not provide sufficient redress for the violation of Mr Gramada’s rights under article 3.
Read MoreThe South African Supreme Court of Appeal (SCA) held that, in terms of the Implementation of the Rome Statute of the International Criminal Court Act 22 of 2002 (ICC Act), the South African Police Service (SAPS) is competent and required to investigate acts of torture that constitute a crime against humanity, committed in Zimbabwe by Zimbabweans.
Read MoreBare v Small [2013] VSCA 204 (9 August 2013)
The Victorian Court of Appeal granted an application for a Protective Costs Order (PCO) brought by Mr Nassir Bare. Mr Bare had brought an appeal against the orders of Williams J in the Victorian Supreme Court and applied for a PCO to limit his liability to pay costs in the event that the appeal was unsuccessful. The Court granted an order limiting recoverable costs to $5,000, following submissions by Youthlaw that they would be able to raise this amount to support Mr Bare’s appeal.
Read MoreHer Majesty The Queen v Stephanie Mok, 2014 ONSC 64 (2 August 2013)
The Ontario Superior Court of Justice held that videotaping a detainee using the toilet in a police cell was a breach of her right to be free from unreasonable search and seizure. However, this breach of her privacy did not warrant a stay of the criminal proceedings against her.
Read MoreBare v Small [2013] VSC 129 (Unreported, 25 March 2013)
The Supreme Court of Victoria dismissed an application seeking judicial review of two decisions by the Office of Police Integrity not to investigate a complaint of cruel, inhuman or degrading treatment by an officer of Victoria Police.
Read MoreCatt v ACPO and Ors; T v Commissioner of Police of the Metropolis and Anor [2013] EWCA Civ 192 (14 March 2013)
The English Court of Appeal upheld two appeals from the Divisional Court regarding the right to respect to private life under article 8(1) of the European Convention of Human Rights and the retention of information by the police. The Court found that, even in cases where the collection of information did not breach the right to privacy or the information was publicly available, systematic collation and retention of such information may amount to an unjustifiable infringement of the right to privacy.
Read MoreKinloch (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2012] UKSC 62 (19 December 2012)
The UK Supreme Court held that an unauthorised police surveillance operation did not breach an individual’s right to respect for their private life under article 8 of the European Convention on Human Rights. This was because the surveillance occurred in public places and the subject of the surveillance had no reasonable expectation of privacy.
Read MoreR v Aucoin, 2012 SCC 66 (30 November 2012)
The Canadian Supreme Court found that, although minor vehicle infractions should not lead to the detention of the driver or the search and seizure of their property, and that those actions are in breach of the driver’s fundamental rights, the particular circumstances of this case are such that the seized substances, in this case cocaine, are admissible as evidence.
Read MoreCaripis v Victoria Police (Health and Privacy) [2012] VCAT 1472 (27 September 2012)
The Victorian Civil and Administrative Tribunal has ruled that a protestor’s right to privacy was not violated by the Victoria Police’s retention of photographs and video footage taken during a protest. The Tribunal accepted that the records were still needed by Victoria Police for legitimate purposes including planning and briefing for further protests and therefore their retention did not violate Victorian privacy laws.
Read MoreVictoria Police v Anderson & Ors (2012) Magistrates' Court of Victoria (23 July 2012)
In the Magistrates' Court of Victoria, Magistrate Garnett dismissed charges against the 16 accused for the offences of trespass and besetting premises under the Summary Offences Act 1966 (Vic) (the SOA) in relation to a demonstration that occurred at Max Brenner's chocolate bar in Melbourne. Relevantly, in dismissing the charge of trespass, Magistrate Garnett took into account the protection of the rights to freedom of expression and association under sections 15 and 16 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). This case note focuses in particular on the Charter aspects of the decision.
Read MoreVictoria Police v Anderson & Ors (2012) Magistrates’ Court of Victoria (23 July 2012)
In the Magistrates’ Court of Victoria, Magistrate Garnett dismissed charges against the 16 accused for the offences of trespass and besetting premises under the Summary Offences Act 1966 (Vic) (the SOA) in relation to a demonstration that occurred at Max Brenner’s chocolate bar in Melbourne. Relevantly, in dismissing the charge of trespass, Magistrate Garnett took into account the protection of the rights to freedom of expression and association under sections 15 and 16 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). This case note focuses in particular on the Charter aspects of the decision.
Read MoreR (on the Application of RMC and FJ) v Commissioner of Police of the Metropolis [2012] EHWC 1681 (22 June 2012)
In the recent case of R (on the Application of RMC and FJ) v Commissioner of Police of the Metropolis and Others (RMC and FJ), the High Court of England and Wales held that the indefinite retention of photographs of persons who are arrested, but not subsequently prosecuted, breaches the right to private life protected in article 8 of the European Convention on Human Rights. The case applies and extends the earlier European Court of Human Rights decision of S v United Kingdom (2009) 48 EHRR 50, which concerned the retention of DNA samples and fingerprints.
Read MoreMounted Police Association of Ontario v Canada, 2012 ONCA 363 (1 June 2012)
In Mounted Police Association of Ontario v Canada, the Ontario Court of Appeal considered the scope of the freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms. The question for the Court was whether a statutory employee relations regime imposed on the Royal Canadian Mounted Police violated section 2(d) of the Charter. Justice Juriansz, with whom Justices Doherty and Rosenberg agreed, held that this statutory regime did not make it impossible for members of the Police to exercise their fundamental freedom of association. Consistent with this freedom, Police members were able to form independent employee associations to collectively achieve their workplace goals.
Read MoreThe Queen (on the application of Medihani) v HM Coroner for Inner South District of Greater London [2012] EWHC 1104
The High Court of England and Wales held that the decision of the District Coroner to close down an inquest into the death of a teenager was unreasonable and unlawful. This error of law resulted from the Coroner’s failure to consider the obligations of the Metropolitan Police under article 2 of the European Convention on Human Rights, which protects the right to life.
Read MoreAustin & Ors v United Kingdom [2012] ECHR 459 (15 March 2012)
In 2001, in the context of a demonstration in central London, up to 2000 people were contained within a police cordon (a measure known as "kettling") at Oxford Circus in London without access to food, water or toilets.
The Grand Chamber of the European Court of Human Rights held that this did not amount to a deprivation of liberty under Article 5(1) of the European Convention of Human Rights.
Read MoreZH v The Commissioner of Police for the Metropolis [2012] EWHC 604 (QB) (14 March 2012)
The England and Wales High Court has held that police who applied excessive force to a 16 year old autistic boy infringed several laws, including the European Convention on Human Rights. The Court found that the treatment of the boy by the police amounted to assault and battery, false imprisonment, unlawful disability discrimination, inhuman or degrading treatment, deprivation of liberty, and interference with private life.
Read MoreWK v The Queen [2011] VSCA 345 (30 November 2011)
In a recent appeal from an interlocutory decision of the County Court, the Victorian Court of Appeal held, by a majority of 2:1, that s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is applicable to the interpretation of the Surveillance Devices Act 1999 (Vic). Only His Honour Nettle JA considered the implications of the recent High Court decision in Momcilovic v The Queen [2011] HCA 34.
Read MoreJude v Her Majesty’s Advocate (Scotland) [2011] UKSC 55 (23 November 2011)
In this case, the Supreme Court of the United Kingdom held that admitting evidence of unsolicited statements made to the police by an accused who had waived his right to access legal advice did not deny him a fair trial contrary to article 6(1) of the European Convention on Human Rights.
Read MoreR v Larson, 2011 BCCA 454 (10 November 2011)
In this case, the Court of Appeal for British Columbia overturned Mr Larson's conviction for unlawful production of cannabis under s 7(1) of the Controlled Drugs and Substances Act, SC 1996, c 19. The decision was based on the finding that the warrantless search of Mr Larson's residence, which uncovered his marijuana growing operation, was unlawful under s 8 of the Canadian Charter of Rights and Freedoms, which confers the right “to be secure against unreasonable search or seizure”. Evidence obtained in this and subsequent searches was excluded by the court under s 24(2) of the Canadian Charter, which provides for exclusion of evidence obtained in a manner that infringes any Charter rights if admission of the evidence would bring the administration of justice into disrepute.
Read MoreCastle & Ors v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin) (8 September 2011)
The High Court of England and Wales has dismissed claims made on behalf of three school children that their containment at last year’s demonstrations in central London was in breach of their rights under the European Convention on Human Rights (‘EHCR’). The High Court held that the police action taken on the day, “having regard to the need to safeguard children and to promote their welfare, was necessary, proportionate and lawful”.
Read MoreZhumbaeva v Kyrgyzstan, UN Doc CCPR/C/102/D/1756/2008 (19 July 2011)
In this case, the United Nations Human Rights Committee held that Kyrgyzstan was responsible for injuries to, and the death of, a man held in police custody. The Committee based its decision on the principles that a State assumes responsibility for a person that it takes into custody, and that, where that person's rights are violated, the State must properly investigate and prosecute those responsible to remedy the violation. The Committee's decision is relevant in a Victorian context because deaths in custody have been and remain an important issue in the Australian political landscape.
Read MoreGubacsi v Hungary [2011] ECHR 1044 (28 June 2011)
In this case, the European Court of Human Rights (the Court) confirmed that ill-treatment of persons in custody by police, if sufficiently serious, may amount to inhuman and degrading treatment in breach of article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). In circumstances where a person enters police custody in good health, and is injured when released, the State bears the onus to provide a plausible explanation of how the injuries were caused.
Read MoreValerie Morse v The Police [2010] NZSC 45 (6 May 2011)
The Supreme Court of New Zealand has found that the right to freedom of expression contained in s 14 of the Bill of Rights Act 1990 (NZ) requires an objective approach to the determination of charges of offensive or disorderly behaviour for the purposes of s 4(1)(a) of the Summary Offences Act 1981 (NZ). The provision is directed at behaviour which, when objectively assessed, disrupts order in, or within view of, a public space. Whether those present are offended as a matter of fact, is only one consideration to be taken into account.
Read MoreDPP v KW [2011] VCC (2 May 2011)
The County Court recently handed down a decision in relation to the use by Victoria Police of ‘pretext conversations’ to gather evidence. The matter involved an application by KW to have evidence of a recording of a phone conversation between himself and the complainant excluded in his trial. This recording had been made at a police station using police equipment, although that equipment was operated by the complainant. No warrant had been obtained for the use of this equipment on the basis of Victoria Police’s view that the ‘participant surveillance’ exemption under the Surveillance Devices Act applied to this method of evidence gathering.
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Moos & Anor, R (on the application of) v Police of the Metropolis [2011] EWHC 957 (Admin) (14 April 2011)
The England and Wales High Court recently concluded that action taken by the police to contain and then later disperse G20 protestors constituted an unlawful use of force, in the circumstances.
Read MoreGiuliani and Gaggio v Italy [2011] ECHR 513 (24 March 2011)
The Grand Chamber of the European Court found no violation of the European Convention of Human Rights arose out of the killing of a demonstrator by Italian armed forces during the G8 summitNotably, however, there were divergent views regarding the State's obligations (both substantive and procedural) to protect life, including in relation to making specific provisions governing the use of firearms during police operations, issuing non-lethal weapons, and whether there is a higher level of responsibility where large-scale, high risk demonstrations are planned.
Read MoreBennett v United Kingdom - 5527/08 [2010] ECHR 2142 (7 December 2010)
An essential safeguard to the right of life enshrined in art 2 of the European Convention on Human Rights is that effective official investigations are conducted when individuals are killed through the use of force. In Bennett, the European Court of Human Rights examined the requirements of this safeguard in the context of a coronial inquest investigating a fatal police shooting of a 39-year-old male suffering from mental health problems. Unanimously, the European Court found that the inquest conducted by the United Kingdom constituted an effective investigation in accordance with art 2 and the application was dismissed. This case provides guidance on the interpretation of the investigative requirements attached to the right to life outlined in s 9 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Read MoreDuring the coronial inquest into the fatal shooting of a teenager by the Victoria Police, the Victorian State Coroner considered an application by the Chief Commissioner of Police (‘CCP’) for an order prohibiting the publication of certain documents. The application was made pursuant to s 73(2)(b) of the Coroners Act 2008, which states that a coroner must order that a report about any documents, material or evidence provided to the coroner as part of an inquest not be published if the coroner reasonably believes that the publication would be contrary to 'the public interest'. In deciding whether or not to grant the application, the Coroner considered how s 73(2)(b) ought to be approached in light of the Charter of Human Rights and Responsibilities Act 2006 (Vic), in particular, the impact of the Charter in weighing up what is in the 'public interest.'
Read MoreR v Cornell, 2010 SCC 31 (30 July 2010)
The Supreme Court of Canada has considered the level of inquiry and analysis required to be conducted by police when determining whether a forced entry into a premise is reasonable, consistent with the right to be secure from unreasonable search and seizure.
Read MoreXYZ v Victoria Police [2010] VCAT 255 (16 March 2010)
In a significant decision, Bell J has held that the right to freedom of expression under s 15(2) of the Victorian Charter ‘incorporates a positive right to obtain access to government-held documents’. His Honour found, however, that the Freedom of Information Act 1982 (Vic) is substantively compatible with this right and that the Charter does not ‘call for any different manner of applying’ the public interest override where access to documents is refused.
Read MoreInquest into the Death of Tyler Cassidy: Ruling on applications to be granted leave to participate as Interested Parties pursuant to s 56 Coroners Act 2008 (4 March 2010)
The Coroner's Court of Victoria recently considered applications by three public interest bodies for leave to appear as interested parties in the inquest into the death of Tyler Cassidy. The applications were made pursuant to s 56 of the Coroners Act 2008 (Vic), which states that the coroner may give a person leave to appear as an interested person at an inquest if the coroner is satisfied that the person: (1) has a sufficient interest in the inquest; and (2) it is appropriate for the person to be an interested party.
Read MoreR v Nasogaluak, 2010 SCC 6 (19 February 2010)
The Canadian Supreme Court has held that the excessive use of force by police officers in conducting an arrest was a breach of the accused’s right to security of the person and warranted a reduction of his sentence.
Read MoreGillan and Quinton v United Kingdom [2009] ECHR 28 (12 January 2010)
The European Court of Human Rights held that stop and search powers granted to police under the ss 44-47 of the Terrorism Act 2000 (UK) were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. As such, the Court found the powers not to be ‘in accordance with the law’, in violation of art 8 of the European Convention on Human Rights.
Read MoreMcIntosh v Victoria Police [2009] VCAT 1868 (16 September 2009)
In this case, Bell J held that the Freedom of Information Act 1982 (Vic) should be interpreted consistently with the s 15 of the Charter, which recognises that the right to seek, receive and impart information is an aspect of the human right of freedom of expression.
Read MoreGiuliani and Gaggio v Italy [2009] ECHR 23458/02 (25 August 2009)
The European Court of Human Rights has found that Italy failed to adequately investigate the death of a protestor by a member of the military police, or carabinieri, and this failure to investigate breached Italy’s obligations to safeguard the right to life. The Court was, however, not satisfied that the death itself involved a breach of human rights.
Read MoreDe Simone v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2009] VCAT 888 (13 May 2009)
For the first time, VCAT has referred a question of law arising under the Charter for determination by the Supreme Court, by way of s 33 of the Charter. The referred question is whether VCAT's implied statutory power to stay a civil proceeding (in particular, the McMahon v Gould guidelines applicable to that power) should be revised in light of ss 24 and 25 of the Charter, and if so, how.
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