The marathon case of Slaveski v Victoria [2010] VSC 441 ran for several months longer than planned, and covered a lot of ground over 115 days.

Mr Slaveski was originally self-represented, and then represented by his wife who was appointed as a litigation guardian. Self-represented litigants (and other lay people) present particular problems for courts balancing precious court time and resources when others wait their turn for those same scare resources, and providing procedural fairness to the self-represented person who wants their day in court.

The AIJA covered this topic in 2004, and many courts and other legal bodies have considered it in detail since then. A quick google search will return a lot of information — much of it provided by the courts themselves — to assist the self-represented person navigate an unfamiliar court system. The Victorian Supreme Court has a page of its website for unrepresented litigants, and the County Court has an information guide for self-represented litigants.

Slaveski’s case is a massive 664 pages long — 2385 paragraphs! Despite that, it’s an easy read. Probably because its intended audience partly comprises Mr Slaveski and his wife — and also the police involved — it’s written in a very clear and accessible style, and provides some very good restatements of legal principles about police powers. I don’t mean that in any way to be dismissive — I suspect Slaveski will be the first port of call for many years to come when lawyers and police have what’s-that-authority-for-x questions on the scope and content of police powers. Even though it’s ‘only’ a Supreme Court judgment of a first-instance trial, I reckon it’ll be reported. I hope so.

I’m not going to try to canvass many of the issues: that would require many pages. Instead, I’ll just highlight the topics the Kyrou J covered, and then delve into three particular areas that haven’t previously received much judicial consideration: reasonableness of searches under warrant; video recording searches under warrant; and liability of supervising police officers in negligence.

(The opening pages discuss possibly contemptuous behaviour by the plaintiff, including threatening to photograph a witness: [66] and [72]. I discussed this uncommon form of contempt Digital Contempt in June this year.)

Parts 2 and 3 of the judgment — yup, it’s big enough to be divided into parts! — deal with police powers, and civil actions against police. Part 3 isn’t exhaustive, but the ones discussed are the most common against police. For this reason, Slaveski should be essential reading for the police, and probably practitioners involved in cases that raise questions about the propriety of police conduct. The contents of those Parts are:

PART 2 – POLICE POWERS

• Arrest without warrant
• Power of arrest conferred by s 459 of the Crimes Act
• Common law requirements for arrest
• Deprivation of liberty Communication of arrest
• Communication of the reason for the arrest
• Use of force
• Use of handcuffs
• Detention of arrested person in custody
• A lawful arrest is not vitiated by subsequent unlawful conduct by the arrester

• Entry onto premises to effect arrest
• Search of property pursuant to warrant
• Common law background
• Crimes Act, Magistrates’ Court Act and relevant regulations
• Execution of search warrant
• Belief on reasonable grounds required to seize items under warrant
• Obligation to act reasonably in executing search warrant
• Factors affecting reasonableness of a search
• Photographing and filming the execution of a search warrant
• Duty to carry seized items before Magistrates’ Court

• Relevant provisions of the Victoria Police Manual
• Legal status of the Victoria Police Manual
• Conducting and reporting investigations
• Police identification
• Effecting arrest
• Use of handcuffs
• Execution of search warrant
• Non involvement in private civil disputes
• Conflict of interest
• Communicating outcome of investigation
• Return of seized property

PART 3 – CAUSES OF ACTION AGAINST THE POLICE DEFENDANTS

• Assault and battery
• Assault
• Can mere words constitute assault
• Battery
• Defences to an action in assault or battery
• False imprisonment
• Malicious prosecution
• Malice
• Absence of reasonable and probable cause
• Defamation
• Trespass to land
• Defence of consent
• Implied licence
• Defence of lawful authority – search warrant
• Trespass to goods
• Conversion
• Wrongful dispossession
• Use
• Refusal to surrender on demand
• Detinue
• Negligence
• Liability for failing to investigate a complaint of criminal activity
• Conflicting duties principle
• Principles based on public policy
• Summary of principles
• Liability of a supervising police officer

Reasonableness of searches under warrant

At [175] – [178] Kyrou J discussed restrictions implied to the power of search conferred by a search warrant, and provided a helpful checklist of things to consider when determining if the search is reasonable.

[176] The factors that will inform the reasonableness of the manner in which a search is conducted are likely to include – but are not limited to – the following:

(a) the nature and quantity of the items described in the warrant;

(b) the nature of the conduct under investigation;

(c) the size, layout, physical features and nature of the use of the premises being searched;

(d) the likely location of the items described in the warrant;

(e) in the case of a search for documents in an office area, whether the office area appears to have an orderly filing system;

(f) in the case of a search for bulky or uniquely identifiable items, whether there are any obvious places where such items are likely to be located;

(g) the time required to secure the premises and to set up an exhibits kit to enable the search to be conducted;

(h) the number of officers conducting the search;

(i) the number of people on the premises when the search is conducted and whether they are hindering the search;

(j) whether the occupier of the premises is a suspect or a third party;

(k) the history of police dealings with the occupier of the premises, including whether he or she is considered to be trustworthy or dangerous;

(l) whether the occupier of the premises is cooperative;

(m) whether any information that the occupier initially provides about the location of the items described in the warrant proves to be accurate and reliable; and

(n) any prior intelligence that the police obtained lawfully about the premises, the items described in the warrant, the occupier and any other matters that are relevant to the search.

For example, the sort of search that leaves a house and contents up-ended wouldn’t be necessary or justified if the police were using a search warrant to obtain material from a bank.

When a search is unreasonable and hence outside the scope of the search warrant, it’s potentially a tortious trespass: [291] – [292]. A more immediate consequence would be conduct contrary to Charter 13 (right to privacy), 20 (property rights), 21 (right to liberty and security of the person), and 38 (acting compatibly with human rights), and possible exclusion of evidence under Evidence Act Part 3.11.

Video recording searches under warrant

The AFP has video recorded its searches for some time now. Victoria Police doesn’t always do it, but it’s becoming more common. One reason to do it — and a darn good one at that — is to try to reduce or prevent factual arguments about who said or did what. (I discussed this last year in Disputed confessions to police.) It seems this was at least one reason for video recording a search at Mr Slaveski’s property on 13 December 2005. But, at [1058] and following, it turns out this was also a source of controversy because of what wasn’t recorded!

In any event, Kyrou J provided a detailed analysis of the legality of video recording searches under warrant, and in general terms held it was legal, subject to observing certain requirements.

[192] …a search warrant, in addition to conferring on police officers the express powers set out in it, also implicitly confers on them the power to do anything that is incidental to, and for the purpose of, exercising those express powers. This includes an implied power to take video footage or photographs of the execution of the warrant, provided that:

(a) the activity, object or part of the premises being filmed or photographed is incidental to the exercise of the express powers conferred by the warrant (‘incidental nexus requirement’); and

(b) the filming or photographing of that activity, object or part of the premises is for the purpose of exercising those express powers (‘proper purpose requirement’).

[193] It will be noted that this principle comprises two limbs. Strictly speaking, both limbs are elements of a single requirement because the failure to satisfy either limb will sever any nexus between the conduct in question and the express powers set out in the warrant. Nevertheless, for clarity of exposition, I will maintain the bifurcation.

[194] In my opinion, the incidental nexus requirement will be satisfied where the video footage shows:

(a) the police knocking on the door of the premises, introducing themselves to the occupier and then entering the premises;

(b) the officer in charge introducing the search team to the occupier, serving the warrant and explaining its terms to the occupier;

(c) the police conducting an initial security sweep of the premises;

(d) the exhibits officer setting up the exhibits kit;

(e) officers searching the premises and conducting discussions with the occupier;

(f) any seized items in their original locations;

(g) seized items being moved from their original locations, being photographed, being entered in the property seizure record, being labelled and being placed in exhibit bags;

(h) the arrest of any person apparently having possession, custody or control of a seized item; or

(i) the police packing up the exhibits kit and departing the premises with the seized items in their possession.

This list, which is intended to be illustrative only and not exhaustive, is also applicable to the taking of still photographs.

…

[196] The proper purpose requirement will be satisfied where, for example, the execution of the search warrant was filmed or photographed for the purpose of creating a record for use as evidence in support of charges that may be laid against the occupier of the premises or another person. On the other hand, the requirement will not be satisfied where, for example, the filming or photographing was carried out for the purpose of selling the images for profit.

[197] An improper purpose will render the taking of the video footage or photographs unlawful, and thus a trespass, even if the images are confined to activities, objects or parts of the premises that are incidental to the exercise of the express powers conferred by the search warrant and would therefore satisfy the incidental nexus requirement.

[198] Where the taking of video footage or photographs satisfies the incidental nexus and proper purpose requirements, that conduct will not constitute a trespass merely because it was also motivated by concurrent subordinate purposes.

[199] As video footage or photographs are normally taken over a period of time and in different locations, the application of the incidental nexus and proper purpose requirements may produce different liability consequences for distinct phases of that conduct. For example, a police officer that enters premises and takes photographs of the items to be seized as a record of the proper execution of the search warrant will not commit a trespass for such time as his or her conduct is so confined. If, however, for a period of time, the photographer moves to a different area of the premises in order to photograph the occupier’s artwork for personal artistic gratification, he or she will commit a trespass during that period.

[200] In this proceeding, there was an issue as to whether the police were authorised to take video footage or photographs during the execution of a search warrant for the purpose of gathering intelligence for possible use in future police operations. In my opinion, the position is as follows:

(a) If the incidental nexus and proper purpose requirements are satisfied, a trespass will not be committed merely because an item of interest from an intelligence gathering perspective appears in the footage or photograph.

(b) If an item of interest from an intelligence gathering perspective is located on a part of the premises which is not to be searched, the act of filming or photographing that item will constitute a trespass because it will not satisfy either the incidental nexus requirement or the proper purpose requirement.

(c) If an item of interest from an intelligence gathering perspective is located on a part of the premises which is being searched, the act of filming or photographing that item in isolation from the search activity, or as the item of prime focus, will constitute a trespass because neither the incidental nexus requirement nor the proper purpose requirement will be satisfied.

(d) Where the sole or dominant purpose of the taking of video footage or photographs is to gather intelligence for possible use in future police operations, the conduct will constitute a trespass because the proper purpose requirement will not be satisfied. In addition, the incidental nexus requirement may not be satisfied because the focus of the video footage and the photographs will be on items of interest from an intelligence gathering perspective, rather than on the search activity.

At [1380] ff, Kyrou J found that some of the video footage didn’t meet these requirements, and hence was outside the scope of the warrant and was a trespass.

He was particularly critical of the police for video recording separate conversations between Mr and Mrs Slaveski and their lawyers, at [1095] – [1098] and [1384] – [186].

[1384] The trespass committed by officer Wendt was neither trivial nor inconsequential. In my opinion, it constituted a serious infringement of Mr Slaveski’s privacy and the quiet enjoyment of his property. This is particularly so in relation to the taking of footage of the security features of the Lalor shop and the separate conversations between Mr and Mrs Slaveska and their lawyers. As a person in custody following his arrest and whose property was the subject of a coercive search, Mr Slaveski was entitled to obtain confidential legal advice, directly or through Mrs Slaveska, without the detectives overhearing the relevant communications.

[1385] I note that, when Mrs Slaveska spoke to a lawyer, she had moved away from the detectives in the downstairs office area to an area of the shop which was not intended to be searched. Officer Wendt’s conduct in following Mrs Slaveska, and filming her, was totally unwarranted. He seriously compromised Mr Slaveski’s basic right to seek confidential legal advice.

[1386] An invasion of privacy that is constituted by the recording of a particular item or a particular event in a permanent audiovisual medium is far more serious, and has the potential to be significantly more harmful, than an invasion of privacy that is constituted by the mere observation of the same item or event. For the purposes of legal redress, the serious infringement of Mr Slaveski’s privacy on his land constituted a serious trespass to land.

[1387] Although officer Wendt’s unauthorised filming constituted a serious infringement of Mr Slaveski’s rights, I reject Mrs Slaveska’s allegations that officer Wendt chose what to film as part of a conspiracy with the other detectives or that he engaged in any deliberate misconduct. I find that officer Wendt acted in good faith in taking the unauthorised footage. He simply misunderstood the scope of his legal power to film. His misunderstanding was based, in turn, on a misunderstanding by officer Sadler of the power of police officers to take video footage of the execution of a search warrant.(Footnotes ommitted.)

Liability of a supervising police officer

This is a topic that’s caused a lot of fear and loathing within Victoria Police in the past, much of it due to ignorance and lack of understanding about the law of negligence.

Kyrou J referred to Victoria v Horvath (2002) 6 VR 326, itself a salutory lesson on limits of police power — and still not as widely understood within Victoria Police as it should be. His Honour then reviewed a number of well-known authorities on police negligence — including the Victorian case of Zalewski v Turcarolo [1995] 2 VR 526 — before tentatively concluding in obiter at [356] that supervising police officers might be liable in negligence for supervising subordinate officers. I dare say we’ll see more on this topic in years to come.

Overall

It seems the police defendants successfully defended many of the claims against them. There are more topics highlighting pitfalls for police when they don’t follow their processes, but for the most part, the fairly strong allegations against them weren’t made out. Despite the portions I highlighted above, Salevski is a largely useful judgment for the police, both as a clear statement of their powers and their scope, and a poignant example of what can happen when the police force and individual officers aren’t crystal-clear on those legal principles.