UN: Victoria's Police Compensation Restrictions Breach Human Rights

Tuesday 13 May 2014 @ 11.12 a.m. | Torts, Damages & Civil Liability

A Victorian woman who was beaten by police in 2004 has successfully taken her case for compensation to the United Nations.  Corinna Horvath argued that Australia had breached articles 2, 7, 9, 10 and 17 of the Optional Protocol to the International Covenant on Civil and Political Rights by denying her right to an effective remedy for the events of 9 March 1996.  In Communication No. 1885/2009, (the HRC judgment), the Human Rights Committee agreed, declaring that Australia has an obligation to provide Ms Horvath with an effective remedy.  The decision gives Australia 180 days to give the Committee information about the measures it will take to give effect to the Committee’s views.

The Events

Ms Horvath, who was aged 21, was issued with an unroadworthy certificate for her car.  Two constables arrived at her house the next day to inspect the car for evidence that it had been recently driven.  Since they did not possess a warrant, Ms Horvath and a companion “used force to make them leave”.  The police officers gathered reinforcements, resulting in a total of eight officers arriving at 10:30 that night and kicking the door in.  They assaulted a companion with a baton, and punched Ms Horvath in the face.  She suffered injuries including a fractured nose, bruising and a chipped tooth, and was not taken to hospital, but rather to a police cell.  A week later, an artery in her nose shattered, which required surgery.

Ms Horvath and her companions would later file proceedings against the police officers and the State of Victoria under s 123 of the Police Regulation Act 1958.  Justice Roland Williams of the Victorian County Court made several strong statements about the conduct of the police officers, including Constable David Jenkin:

"Overall it was a disgraceful and outrageous display of police force in a private house, and I consider Christensen did indeed show a contumelious disregard for the rights of the plaintiffs in planning and executing the raid as he did and I find that Jenkin in his conduct showed a most high handed approach accompanied by excessive and unnecessary violence wrought out of unmeritorious motives of ill will and desire to get even. ..." [quoted in Victoria v Horvath and Ors [2002] VSCA 177 at 15]

His Honour awarded substantial damages to the parties, including to Ms Horvath: $120,000 for negligent supervision by a police sergeant (transferred to the State), $90,000 for assault against Constable Jenkin, $30,000 for trespass, wrongful arrest and false imprisonment against all defendants (transferred to the state), and $30,000 for malicious prosecution against Constable Jenkin.  

The Appeal

The State of Victoria won an appeal against this decision in Victoria v Horvath and Ors [2002] VSCA 177.  They overturned the damages decisions that had been transferred to the State, finding that the negligent supervision was not the cause of Ms Horvath’s injuries.  Rather, the constable’s intentional actions had severed the causal chain of liability, so that the State was no longer liable to pay damages.  

The Human Rights Committee was particularly troubled by the way s 123 of the Police Regulation Act 1958 was framed – so that the State is liable only where police act reasonable or in good faith.  The Committee said:

“[T]he Act creates an exceptionally narrow class of State liability for actions or omissions of police officers.  In order for the State to be liable, the actions of the police must be negligent, yet also the police must be acting in good faith, and the action or omission must be “necessarily or reasonably done” in the course of their duty.  It is very difficult to imagine a class of case that satisfies such criteria.” [at 8.5 of the HRC judgment]

The remaining damages were thus the responsibility of the individual police officers.  But shortly after the decision was handed down, Constable Jenkins declared bankruptcy, and the other officers involved were found to have ‘minimal assets’.  In the end, Ms Horvath accepted her counsel’s advice to negotiate a settlement, and the co-plaintiffs between them accepted $45,000.

Ms Horvath also filed a complaint to the Ethical Standards Department of Victoria Police.  Disciplinary proceedings were commenced against the officers involved, but “were subsequently dismissed for lack of evidence, despite the strong findings of fact made against police during the court proceedings” [at 2.7 of the HRC judgment].  None of the parties involved were called as a witness and no disciplinary action was taken against any of them.

At the UN

Australia’s counter-argument to the claims at the UN was that Ms Horvath had not completely exhausted the legal avenues available to her domestically.  They argued that Ms Horvath should have continued to pursue the judgment against Constable Jenkins, whose bankruptcy had been lifted after three years.  She also had not pursued compensation from the Victims of Crime Assistance Tribunal.  They also disputed that her treated amounted to cruel, inhuman or degrading treatment or punishment to a degree that would breach Article 7.

The UN found that the disciplinary proceedings against the Police Department were not a satisfactory remedy, as despite the strong court findings, neither Ms Horvath or any of her companion were called to give evidence, or allowed to see the file.  There was no public hearing and no opportunity to appeal the evidence.

The UN spoke strongly about the Victorian legislative regime, saying:

“the Committee considers that Section 123 is incompatible with article 2, paragraph 2, as well as with article 2, paragraph 3 of the Covenant, as a State cannot elude its responsibility for violations of the Covenant committed by its own agents.” [at 8.5 of the HRC judgment]

Four committee members, in separate judgments, found explicitly that the treatment of Ms Horvath in the case did breach Article 7 by constituting cruel, inhuman or degrading treatment.

 Ms Horvath’s barrister, Dyson Hore-Lacy QC, told ABC News that the UN decision should be respected:

“We expect the Japanese to comply with the decision of the International Court of Justice on whaling… It would be very hypocritical for the state to say: 'Oh no, we're not going to abide by this decision because we don't like it."

A Coalition spokeswoman told The Age that “the government was considering the decision”.

Section 73 of the Victoria Police Act 2013, which is due to commence in December this year, will alter the current law, so that the State could be liable for a police tort which is unlikely to be recovered, providing the Minister is satisfied that “the claimant has exhausted all other avenues”. Given the arguments presented by Australia at the UN, it is not clear if that would include pursuing a case at the Victims of Crime Assistance Tribunal. The UN accepted Ms Horvath’s argument that awards from this Tribunal "are symbolic and not intended to reflect the level of compensation to which victims of crime may be entitled."

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