Imagine you went to court with your partner and your mum and a judge estimated your compensation  claim at $3 million, but you won’t see a cent of it. Legal columnist HUGH SELBY exposes an arcane reality of the ACT Crimes Act.

Imagine that you went to court with your partner and your mum. You are all seeking compensation for a range of physical injuries and resultant mental injuries and loss of employment income. You can’t work any more. Add trespass and wrongful imprisonment. 

This is the result of an “incident” in your home after uninvited people came in at night.

There was a lot of violence and a lot of shouting. Some of the violence may have reflected your recent use of illegal drugs. You were taken to hospital and kept there for 12 days, followed by another eight days in custody.

Just shy of five years after the event, the hearing before Supreme Court Justice Mossop went for 12 days. After four months the judge gave his decision, all 87 pages of it, much of it very technical.

He writes that your compensation entitlement would be a little over $2 million, that for mum it would be around $400,000, and for your partner around a half million dollars. All up around $3 million.

A lot of money, but neither you nor the two other claimants will ever see one cent of it.

Worse, the three of you have to pay the winning defendants’ legal costs. That’s usual until you realise that you’re paying at a much higher rate than losers usually pay.

How could this happen?

It happened because there’s a provision in our Crimes Act, section 435, dating back to the late 19th century, around 150 years ago, that gives police officers in the ACT a protection, namely that in some situations – the events at your home (as found by the trial judge) being one of them – the police have immunity from claims even when they are wrong about the facts, the law, or both.

Historically the provision gives effect to early to mid 19th English case law that gave immunity from claims to “persons acting illegally, but in supposed pursuance, and with a bona fide intention of discharging their duty under [the relevant statute]”.

Just after World War II, Justice Dixon (who later became Chief Justice and is widely regarded as one of the best legal minds in Australian legal history) restated the interpretation as giving protection “where an illegality has been committed by a person honestly acting in the supposed course of the duties or authorities arising from an enactment”. 

Following an exhaustive historical explanation and analysis of a series of English and Australian cases Justice Mossop concluded: “The language of s 435 ‘or reasonably supposed to have been done’ involves a subjective question with an objective qualification… It is a subjective question because it enquires as to what the person (ie, the police officer) supposed they were doing. It involves an objective qualification because effect will only be given to what the person “supposed” they were doing if that supposition was reasonable. 

“However, having regard to the purpose of the provision, it must accommodate circumstances in which the person has made a mistake of fact or law about, or in the purported exercise of, statutory powers. If that was not the case, then the provision would be of little or no utility.” 

Section 435 goes even further to protect police officers from claimants such as you. First, if you are going to claim you must do so within six months. Second, you must give the police notice that you are going to claim a month before you claim; and, third, if you lose you’ll be paying the successful police and their employer (the government) at a higher rate of costs than is usual.

Lawyers working for police might be expected to know about this section, but otherwise its existence is barely known: not by criminal defence lawyers, not by injury compensation lawyers, not by legal academics, not by bodies handling complaints against police.

Court congestion delays, prosecutors overworked so that the brief of evidence takes months to deliver to the defence, delay often being the best defence for criminal accused, compensation lawyers telling their clients to be patient until the extent of their injury is clear (which may be a year or two or more) – these all work to ensure that no one turns their mind to sending a notice to police at the five-month mark after an “ incident” that a claim against them is coming within a month.

Legal complexities

Glavinic v Commonwealth (and four police officers) [2023] ACTC 361 was decided last year. The judge’s reasons for decision are interesting because:

1. There is a detailed setting out of the evidence of each witness as to what happened at the home of the three plaintiffs;

2. The reasons for the judge preferring the police accounts are clearly set out;

3. There is a detailed, exhaustive and impressive analytical account of the history of the “protection given to police”, both as legislated and as interpreted by judges in England and in Australia;

4. The judge was satisfied that the police officers held the belief that it was necessary to enter the home immediately for some or all of the reasons required by the Crimes Act, section 190. 

5. Section 190 allows police entry into a home when such entry is based upon a “belief on reasonable grounds” of an offence being, or likely to be committed AND entry is necessary to prevent such offence or to protect life or property. Hence the critical question for the section 435 immunity was whether there were or were not “reasonable grounds for such a belief”.

6. The judge noted that the relevant sources of information that might provide such “reasonable ground for belief” were:

• the first radio transmission to the police on patrol about the information from the concerned neighbour as to what she heard;
• the second radio transmission about the further information from the same neighbour as to what she later heard;
• police observations of Mr Glavinic and Mrs Glavinic; 
• what police were told by Mr Glavinic at the front door;
• the female voice heard by one police officer; and
• what, if anything, the same police officer told the other police officers.

7. The judge reached the conclusion that this collection of facts could only amount to “reasonable grounds for such a belief” on the bases of physical injury suffered or imminent.  Given his exhaustive presentation of the evidence before him I respectfully disagree with these findings of fact because of the significance to the attending police of the neighbour’s two reports, and the male person’s refusal to allow entry to check on the welfare of the female who had been crying and screaming. In my opinion (uninformed by judicial experience but otherwise long informed from life experience) it was open on the evidence to find that the police held a reasonable belief that went beyond a suspicion.

Please note, first, that this comment is offered to show how facts can be interpreted differently without any suggestion of shortcomings in those reaching different conclusions; and, second, that if such “reasonable grounds for such a belief” had been found by the judge then the question of the immunity protection would not arise.

8. Applying his legal analysis to the facts as found by the judge, the police – despite their errors of fact and law – were entitled to the protection of the provision. As the judge wrote: “I conclude that having regard to the subtlety of the distinction between belief and suspicion and the complexity of the formulation of s 190, the mistake that the police officers made was not an unreasonable one in the factual circumstances that they faced. I accept that they held the belief in good faith, hence not merely ‘colourable’ and that, although erroneous, it was not an absurd belief.”

9. It followed that the three claimants failed and would have to pay the defendant’s legal costs;

10. The judge, who has many years of experience in assessing financial compensation, then assessed how much each of the claimants would have received for the trespass into their home, their detention, their physical and mental injuries, and loss of employment prospects if, against his finding about the applicable law, they had proved their claim.

He did this because in his view the police had erred in entering the home. But for the legal protection, they would be liable for trespass and all the proven physical and mental injuries and the loss of income that flowed into the future from those injuries. He used the medical and employment evidence presented at the hearing.

What now?

The ACT Bar Association has called twice this year for section 435 to be repealed, as happened in NSW some decades ago.

However, that approach does not reflect the mix of policies that are in play.

First is the important question of whether police and other emergency service workers (ambulance, fire services, first aid) should have protections against being sued for damage done to persons or property while they are performing their job. 

Second, if they are to have any protection then what are the circumstances that are inside and outside that protection? Put another way, where does the protection stop?

It’s important to note that while “belief” requires more information than a “suspicion”, informed opinions can vary as to which state is established. 

Arguably, but not accepted by this judge, the police were justified to believe that a domestic violence offence had been committed and was continuing.

There are training lessons for police in this decision. These go to the use of their powers of entry, and – critically – to the difference between having a suspicion that something untoward might happen, as distinct from a factually based belief that it will happen.

Third, if they are not to have any protections then who or what is to be responsible for paying any successful claims? Doctors, lawyers, engineers, accountants, etcetera must pay insurance premiums to “protect” against claims for imperfect work. If government emergency services employees are to be liable for errors then we, as taxpayers, will be footing the bill for successful claims.

Fourth, if claims are to be allowed then is the assessment of how much is to be paid to be determined by a court or by a tribunal?

Fifth, is the assessment of such claims to be “at large”, or is it to be determined by a schedule – updated regularly – that sets out for what payments can be made, the criteria for making those payments, and any cap on those payments?

Sixth, what is the appropriate time limit in which a claim must be lodged? Given the timeline for litigation these days, be that criminal, compensation claims, or inquests, the present arbitrary six months is way too short. The period should be brought into line with those applicable in other compensation matters. 

There should also be a procedure to argue that the circumstances justify the action commencing at an even later time.

Finally, if the costs of the action are to be awarded against the losing party on anything other than the usual basis then there needs to be clear and cogent justification.

All of which means that before our politicians tackle this issue they should refer it to the ad hoc law reform group for advice. The sooner the better.

Hugh Selby, a former barrister, is the CityNews legal affairs commentator. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.