Practical steps to gather evidence and proceed with a case in the criminal jurisdiction
When you get your clients instructions in a case where you suspect police misconduct here are some things to consider gathering:
Full proof of evidence from the client
Photographs of injuries
Records from any doctors/medical professionals
CCTV/Surveillance records from the scene
Witness Statements
Any mobile footage from the scene
Impact statements from family/friends
Incident re-construction. Go to the scene of the incident with your client and get them to describe step by step what has happened. Take photos.
If you see the client before any police charges have been issued, or when the person has been issued with a fine, consider obtaining documents from the police via an FOI application. You can FOI (or attempt to FOI):
Body Worn Camera footage; (see also a 2022 report by the Rights Advocacy Project)
Incident fact sheet;
LEAP records/forms/L19C forms/LEDR forms;
Diary notes/Running Sheets/Patrol Duty Return records;
ESTA records/000 call records, all police communications;
Custody records/Attendance sheet;
Use of force forms/Use of force code sheet;
Internal police emails; Text messages; Teams meeting chats;
Copies of search warrants. (See VPM search property and search persons)
FOI can be a fairly ineffective means of gathering information, but is still very worth considering and can return a different set of documents than other methods.
If the client has been charged, you have two additional options for gathering evidence. Firstly you should write to the police seeking a full brief of evidence under s39 of Criminal Procedure Act 2009 (Vic). Include a list of the items mentioned above. Ella Keogh from Robinson Gill has written a useful piece on Victoria Police disclosure obligations here. The case of Ragg v Magistrates' Court of Victoria & Corcoris [2008] VSC 1 (24 January 2008) from paragraph 45 onward, also contains some very useful passages on the obligations of the prosecution to provide documents.
It may also be necessary to consider issuing a subpoena for evidence from the police. For example, if the case involves a vehicle stop and search that you allege involved racial profiling, you might want to subpoena the particular officer’s history of vehicle stop/search forms by racial appearance to examine whether this officer has a tendency to search racialised people. Vic pol search forms are called L19C forms and they contain an ethnic appearance field. You could ask for the forms to be redacted for all identifying material other than ethnic appearance, search reason and search outcome. Similarly you could seek ‘use of force’ forms by ethnic appearance for that officer or even complaints against the officer, if you know this is a particularly notorious officer.
If you seek police complaint histories by subpoena the police could challenge your subpoeana on public interest immunity grounds. In the case of Ahmet v Chief Commissioner of Police [2014] VSCA 265, [21], the Victorian Court of Appeal found that police complaints are not a ‘class’ of documents that attract public interest immunity and that the Chief Commissioner must make a very clear content claim for why the documents should not be produced (such as safety of an informer, but see AB v CD, EF v CD [2018] HCA 58, [12]).
In addition to information specific to the case and the police officer involved, the other thing you will need to consider gathering is social context evidence about racial profiling. Because racial profiling manifests slightly differently for different communities (but with broad continuities) it’s worth thinking about the type of social context evidence you need. For an Aboriginal person, an expert that can speak to the history of colonisation and the historical and contemporary role of police in enforcing colonial rule is likely to be important. For Muslim/Middle-eastern appearing defendants, understanding of impact of anti-terrorism laws on police suspect selection may be needed.
The Evidence Act 2008 refers to two types of evidence that are relevant to building social context evidence. The first type of evidence is ‘common knowledge’ evidence that the court can use to make findings using judicial notice. You should consider the documents you will want to tender and make submissions about that the court could consider as common knowledge.
In addition you may wish to call on experts, community members etc to give opinion evidence about racial profiling in area. You will need to give the prosecution 14 days notice of the evidence you intend to call. Opinion evidence can be given by a person who has specialised knowledge based on the person's training, study or experience. A person’s experience, through being a local person (community member or youth worker) with knowledge of policing in the local community could meet this definition.
Consider: Are there any local community members you could call? Are there any people with specialised knowledge gained from training, study or experience you could call?
I have included a list of experts you could think about at the end of this page.
What to think about when seeking and instructing an expert to give an opinion:
Josic v State of Victoria (Ruling No. 1) [2024] VCC 1108 [paras10-21].
The determinative issue in many police misconduct/racial profiling criminal cases is whether:
a) the police were acting in the execution of their duty when they arrested a person, if not, the arrest is unlawful; In fact, if relevant you can use any of the 7 common law grounds described here to invalidate the arrest.
OR
b) that the court should use its discretion under s138 of the Evidence Act to exclude the evidence obtained during the arrest (ie admissions or physical evidence).
The allegation of racial profiling could be used as a basis to run either of the above arguments.
Which option to choose?
When the police are engaged in racial profiling, they are acting unlawfully (under the RDA, the Charter and the ICCPR) and not in the execution of their duty. Consequently, the arrest becomes unlawful without the court engaging in any weighing up exercise as about whether or not to exclude evidence. This is a good option for resist/assault/hinder police type charges.
However, if the charge relates to something based on evidence obtained as a result of the arrest, you may need to ask the Court to exclude evidence of it under s138 of the Evidence Act. This involves a two step process: 1. proving that the police acted improperly or incontravention of an Australian law to obtain the evidence. 2. Establishing that the desirability of admitting the evidence does not outweighs the desirability of not admitting it.
Critical tips for court:
Consider not revealing the basis for your case until the hearing. This is because it is reasonable to assume that the police may modify their evidence to take into account what you are alleging if they are on notice of it. While you need to mention that the case is an exclusion of evidence case (or what ever it is), it may not be advisable to clarify the basis on which the unlawfulness is put. For example, if you are alleging that the police failed to communicate the basis of the arrest as the reason for its illegality, unless it is clearly apparent they haven’t communicated the basis for the arrest on BWC evidence, don’t let them know until after they have given evidence on this point. If you allege that they stopped the accused because of their race, make this clear in cross-examination. You must put these allegations to the police in cross examination to satisfy the rule in Browne v Dunn. If you fail to do so you may be prevented from making submissions on it.
It may be advisable to keep discussions with the prosecutor to a minimum. You need to notify the prosecution 14 days before the hearing of the expert report, but in many cases may be advisable to keep your detailed case theory under wraps until the police have given evidence in chief.
Consider the intersection of the client’s complaint, civil claim and discrimination case options as you are preparing the case. For example, a discontinued or dismissed prosecution may lay a foundation for a malicious prosecution claim.
Possible expert witnesses to call in a racial profiling case include (but are not limited to):
Venonica Gorrie - (Aboriginal elder/former police officer)
Emeritus Professor Jude McCulloch