This case concerns the unlawful arrest of a First Nations elder who was peacefully protesting roadworks on his country in regional New South Wales. He was sitting on a mound of dirt, calling upon his ancestors for the protection of the land. No charges were ever laid.
O’Brien Criminal & Civil Solicitors acted for our client in a civil claim against NSW Police and a civil claim against the State of New South Wales.
Background To The Unlawful Arrest
Our client was a First Nations elder with deep cultural ties to his country in regional New South Wales.
In early 2022*, a local council commenced roadworks on a road that runs through his country. However, no Aboriginal site officers were present to oversee the works.
Our client attended the site to peacefully protest. He brought an Aboriginal flag. He laid it on a mound of dirt on the side of the road. He sat cross-legged on top of the mound. He also called upon his ancestors and the Great Spirit for the protection of the land.
Our client was not obstructing the flow of traffic or the work being carried out.
Three police officers approached him. They issued a move-on direction under s 199 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).
Our client did not comply. He was placed under arrest and physically taken to a police paddy wagon. Officers drove him to the local police station.
He was held in custody for over three hours. He was released on conditional bail. He was charged with failing to comply with a move-on direction.
Court Case For Suing Police For Unlawful Arrest In Sydney
The matter was heard in the Local Court where the Magistrate dismissed the charge with a finding of not guilty.
The Magistrate found that our client’s actions constituted an apparently genuine demonstration or protest under s 200(2)(a) of LEPRA. The move-on direction was not valid. The arrest was not lawful.
The Impact Of The Unlawful Arrest On The First Nations Elder
The unlawful arrest had a profound impact on our client.
He was arrested in his ceremonial clothing. In his culture, this was deeply disrespectful. It was not the proper way.
He was arrested in front of other protestors and bystanders, making him feel humiliated and embarrassed.
As a First Nations elder with strong ties to country, he had attended the site to fulfil a cultural and spiritual obligation. He was forcefully removed from land he was seeking to protect.
He suffered mental distress, anguish, and a loss of dignity.
Aboriginals Right To Protest
First Nations peoples in Australia have a long and continuing tradition of peacefully protesting the destruction of country. The Australian Human Rights Commission recognises that Aboriginal and Torres Strait Islander peoples’ rights to cultural and spiritual life must be protected, including the right to peaceful protest and assembly.
Read our other Civil Law Case Studies.
The Civil Claim Against NSW Police
O’Brien Criminal & Civil Solicitors commenced proceedings in the District Court of New South Wales on behalf of our client. The claim was brought against the State of New South Wales, which is vicariously liable for the conduct of NSW Police officers under the Law Reform (Vicarious Liability) Act 1983 (NSW).
The causes of action included:
- False Imprisonment: the arrest was unlawful. The move-on direction was not valid under s 200 of LEPRA because our client was engaged in an apparently genuine protest. There were no reasonable grounds to suspect he had committed an offence under s 99 of LEPRA.
- Assault and Battery: the physical force used to detain, grab and drag our client to the paddy wagon was an unlawful and non-consensual use of force. Our client had a sore back and told the officers so.
- Trespass to Goods: our client’s wallet was seized and held without lawful basis for over three hours.
The claim sought general damages, aggravated damages, and exemplary damages.
Subpoena material obtained during the proceedings revealed that, following our client’s removal, excavation equipment and council workers commenced work on the site. This created a risk to the proceedings. It suggested our client’s presence may have been obstructing the works. The parties agreed to resolve the claim before the Hearing.
Outcome Of The Civil Claim Against NSW Police
The matter was resolved by way of confidential settlement.
While no settlement can undo the harm caused by this unlawful arrest, or restore the dignity taken from our client on that day, the resolution acknowledged the wrong done to him.
Speak To Our Unlawful Arrest Lawyers In Sydney
If you have been unlawfully arrested, falsely imprisoned, or subjected to police misconduct in New South Wales, you may have a right to claim compensation.
At O’Brien Criminal & Civil Solicitors, our experienced civil law team acts for clients who have suffered at the hands of police misconduct. We have a strong record in cases involving First Nations clients, protests, and civil claims against NSW Police.
Contact O’Brien Criminal & Civil Solicitors today for a confidential consultation.
*We always change the names and other identifiable details in case studies to protect client privacy.
Read our other Civil Law Case Studies.
