Terror raids and police brutality: Supreme Court of Victoria finds arrest of Melbourne man unlawful
Cruse v State of Victoria [2019] VSC 574
Summary
The 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.
Facts
On 18 April 2015, police executed a search warrant at the family home of Eathan Cruse (Cruse). The raid was one of several coordinated raids conducted to disrupt a plot to attack police and members of the public on Anzac Day the following week. During the raid, Cruse was handcuffed and beaten. He sustained significant physical injuries and subsequently developed psychiatric injuries. While Cruse was arrested during the raid, he was released the following day without being charged.
Cruse complained to Victoria Police, however his complaint was held not to be substantiated. He subsequently brought proceedings against the State of Victoria (State) claiming that he sustained injuries as the result of a vicious battery and assault by police.
Decision
Justice Richards made findings in respect of each of the issues in the case as follows:
(a) What force was used by police against Cruse?
Justice Richards made several findings of fact in relation to the force used by police after hearing evidence from Cruse, his father David Cruse, his sister Layaleeta Smith, and 3 police officers involved in the raid, including the team leader (Operator 37) and 2 arresting officers (Operators 27 and 127). The key findings were as follows:
Cruse was handcuffed by police and struck on his head, causing him to bleed.
While handcuffed, Cruse was lifted and moved into the kitchen of his parents’ home and slammed into a fridge. This was contrary to evidence of police to the effect that Cruse was handcuffed once in the kitchen.
While Cruse lay face down in the kitchen, police struck him numerous times, including 10 – 15 blows to the head.
While Cruse lay face down in the kitchen, a police officer held him by his hair and said “there’s more to come”, or words to that effect.
While Cruse was being escorted from the house, a police officer twisted his wrist and said “don’t fucking say a word”.
In making these findings, Justice Richards accepted the account given by Cruse and his family members. Her Honour rejected the account given by the testifying police officers to the extent that their evidence conflicted with that given by Cruse in light of the factual inconsistencies between their evidence. Justice Richards also considered the fact that 2 of the testifying police officers had shared their contemporaneous statements with each other. Justice Richards held that this was a “calculated attempt” to ensure consistency between their statements.
(b) Was the arrest of Cruse lawful under section 3WA of the Crimes Act 1914 (Cth) (Crimes Act)?
Section 3WA of the Crimes Act relevantly provides that a constable may, without warrant, arrest a person for a terrorism offence if they suspect on reasonable grounds that the person has committed or is committing the offence.
Justice Richards held that the officers arrested Cruse because they were directed to do so by the Joint Management Committee (JMC). On this basis, her Honour held that the arresting officers did not suspect on reasonable grounds that Cruse had committed or was committing the terrorism offence for which he was arrested, and that the arrest was therefore not lawful. Justice Richards also noted that she was not satisfied the JMC had reasonable grounds to suspect Cruse of committing a terrorism offence.
(c) Was the force used by police against Mr Cruse no more than was necessary and reasonable to make the arrest, and hence justified under s 3ZC(1) of the Crimes Act?
Section 3ZC(1) of the Crimes Act provides that a person must not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
The State conceded it could not establish that the use of force was necessary and reasonable if the allegations made by Cruse were upheld. Accordingly, Justice Richards held the State had not justified the batteries and that the force used was not necessary or reasonable. Further, her Honour held that the use of force would not have been justified even if the arrest of Mr Cruse had been lawful.
(d) Did police assault Cruse by words, as alleged by him?
Justice Richards held that the conduct of the police officer who said to Cruse that there was “more to come” amounted to an assault by words. This was on the basis that, upon hearing those words, Cruse feared that the police would beat him further.
(e) Has Cruse suffered injury as a result of an unjustified use of force by police and/or the alleged assaults by words?
Justice Richards held that Cruse suffered physical and psychiatric injuries as a result of the batteries and assault by police. Although his physical injuries included relatively minor cuts and bruising and left no permanent damage, Justice Richards held that Cruse was suffering from post-traumatic stress disorder and untreated major depression. The State argued that the cause of Cruse’s psychiatric injuries was his shame at being accused of terrorism. Justice Richards rejected this submission on the basis that it was made without reference to the law of causation and was not supported by medical opinion.
(f) If so, what damages should be awarded to compensate Cruse for his injury?
Justice Richards awarded damages for pain and suffering and loss of enjoyment of life associated with Cruse’s physical and psychiatric injuries in the amount of $200,000. Her Honour also awarded damages in respect of future medical expenses in the amount of $20,000.
(g) Should aggravated damages be awarded?
The State conceded that, if the allegations made by Cruse were accepted, Cruse would be entitled to an award of aggravated damages.
Justice Richards held that the circumstances of the attack, including the fact that Cruse was handcuffed during the battery and assault, and was threatened with further violence, aggravated his injuries. Her Honour also referred to the fact that the State had failed to establish that the police had any factual basis for arresting Cruse, yet had defending the proceeding on the basis that Cruse was lawfully arrested. Accordingly, Justice Richards awarded aggravated damages in the sum of $80,000.
(h) Should exemplary damages be awarded?
The State conceded that, if the allegations made by Cruse were accepted, Cruse would be entitled to an award of exemplary damages.
Justice Richards held that an award of exemplary damages was necessary to mark the Court’s disapproval of the treatment of Cruse by the arresting police officers. Justice Richards also referred to the fact that the arrest involved a “misuse of the very considerable powers given to police to combat terrorist activity”. In this context, her Honour referred to the measures introduced by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth), including the introduction of section 3WA of the Crimes Act, and noted:
These measures conferred on police, and other law enforcement agencies, extensive powers to interfere with the liberty, privacy and personal integrity of suspected terrorists. Legislators were conscious of the need to protect the human rights of individuals who might be the subject of these powers … It is imperative that police exercise these powers with care and discretion, and only when the conditions for their exercise exist.
Justice Richards awarded exemplary damages in the sum of $100,000 on the basis that the misuse of police power had caused serious harm to Cruse.
Commentary
This decision illustrates the risks associated with the enhanced powers conferred on law enforcement agencies by legislative and other measures introduced to address the global threat of terrorism. The ability of legislators and law enforcement agencies to respond appropriately to this threat while maintaining respect for human rights is an evolving challenge.
Further, Justice Richards in the present case held that the conduct of the police represented “a shocking departure from the standards set for police officers by Parliament and expected of them by the community”. Australia has previously been criticised for failing to comply with international human rights law in the context of excessive use of force by police.[1] This case serves as a reminder that excessive use of force by police officers continues to warrant human rights concern in Australia.
A link to the full text of the decision can be found here.
Julia Nikolic is a Law Graduate at King & Wood Mallesons
[1] See, for example, Human Rights Committee, Communication No. 18885/2009: Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights, 110th sess, UN Doc CCPR/C/110/D/1885/2009 (5 June 2014), available at: http://www.worldcourts.com/hrc/eng/decisions/2014.03.27_Horvath_v_Australia.pdf.