Can police officers be sued if they exercise their powers unlawfully?

1. State can be sued, and can claim indemnity or contribution from officers for their actions: Ibbett

2. Trespass? (Consider whether there was a right to entry – class 5)

   1. Trespass

3. If trespass, aggravated damages for intangible harm?

   1. AD are a form of damages given by way of compensation of injury to the plaintiff which may be intangible. (Interests of P against invasion extends to freedom from disturbance of those persons present with leave of P as least as family members or as an incident of some other bona fide domestic relationship). The affront to persons may aggravate the infringement of the right to enjoy exclusive and quiet possession: Ibbett

   2. In Ibbett Police in plain clothing without a warrant or lawful reason dived under closing garage door, yelled and pointed guns at plaintiff and son, would not leave when asked. Mrs IBbett over 70 years old, never seen a gun before, petrified.

4. If trespass, exemplary damages? Serves a valuable purpose in restraining arbitrary and outrageous use of executive power: Kuddus ; Ibbett

   1. Exemplary damages in law of tort – its about punishment – if you’d conducted yourself with contumelious disregard for the law –

   2. in very stressful conditions – an individual solider/officer may on occasion act in gross breach of discipline and commit an unlawful act which is oppressive/arbitrary and in such cases exemplary damages have been awarded: Kuddus

   3. Power to award exemplary damages serves to uphold and vindicate the rule of law because it makes clear that the courts will not tolerate such conduct. Serves to deter future actions because it brings home to officers in command of individual units that discipline must be maintained at all times: Kuddus

   4. The court noted that the reeducation the police officer was limited – so exemplary damages given. (inadeqauy of subsequent counseling, just a debrief where it was said that they ‘’better do better next time’.

      1. If there had been more evidence that the state understood how serious the incident was then the award was not necessary.

      2. So the court said they would deal with this through the use of exemplary damages – to send a message.

5. Statute under which to sue:

   1. Persons could sue under civil liability act 2003 (NSW). Under s 9B a person can sue for damages for a tort committed by a police officer in the performance or purported performance of the officer’s functions as a police officer. But the person must make the claim under the Crown (s 9B(2) CLA).

   2. Under s 6 Law Reform (Vicarious Liablity) Act 1983 (NSW) police officer are deemed to be persons in service of the Crown, and s 8 renders Crown vicariously liable in respect of torts committed by persons in course of service and in performance of purported performance of an independent function.

S 10:

10 Power to enter to arrest or detain someone or execute warrant

(1) A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant.

(2) However, the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling.

(3) A police officer who enters premises under this section may search the premises for the person.

(4) This section does not authorise a police officer to enter premises to detain a person under an Act if the police officer has not complied with any requirements imposed on the police officer under that Act for entry to premises for that purpose.

(5) In this section:"arrest" of a person named in a warrant includes apprehend, take into custody, detain, and remove to another place for examination or treatment.

1. Did the two plain clothes police officers have power to enter Ibbetts house under s 10?

   1. They only reasonably suspected that he had committed a driving offence so on that basis no.

   2. But if According to PHegan they actualy have seen him exceed the speed limit and that gave justification for the arrest, then they could only enter the house and stay for a reasonable time to arrest him. Meaning they weren’t allowed to search the premises for

2. What are the threshold issues that must be satisfied before the power under s 10 can be exercised? S 201

   1. Must have brelief on reasonable grounds that person to be arrested is in the dwelling

   2. S 201 -

3. If s 10 Lepra does not give the police the power to enter Mrs Ibett’s house to arrest her son consider Halliday v Nevvill – does this case provide support for proposition they had a common law right to enter Mrs Ibbett’s house?

   1. Answer: No because Halliday v Nevill is only about having an implied licence to enter paths in dwellings left unobstructed and that licence is revoke at any time by withdrawal of it.