Police Misconduct, disability and domestic violence in Costello v State of NSW [2017] NSWDC 152

Ms Costello, 32, suffers from cerebral palsy and an acquired brain injury (ABI) which impact her speech, walk and cognitive functions. The police were called to a report of domestic violence at Ms Costello’s home in which it was alleged that Ms Costello had physically abused her ex-partner and caused damage to his vehicle. Two members of the New South Wales police force attended the property where they arrested Ms Costello and forcibly placed her into the back of a police station wagon.

All charges were later withdrawn against Ms Costello. As a result, Ms Costello bought a claim in the New South Wales District Court for false imprisonment, assault and battery caused by the unlawful arrest and subsequent period in police custody.

Judge Levy SC found that the police had unlawfully arrested Ms Costello and failed to take into account her disability. The extent and nature of Ms Costello’s disability should have been obvious to one or more of the arresting officers and once the officers had realised Ms Costello’s disability, she should have been treated as a ‘vulnerable person’ under the NSW Police Code.

As a vulnerable person, the officers were required to take into account her disabilities at all stages of the arrest process and provided a support person while in custody. The failure to do so caused Ms Costello to become bruised while en-route to the police station as she was unable to support and brace herself in the police wagon.

In awarding damages, Judge Levy took into account the distress and discomfort Ms Costello experienced during the journey to the police station by the polices failure to take into account her injuries.

The court also found that the officers had been ‘heavy-handed’ in their investigation of the reported domestic violence. The officers had failed to take a statement from Ms Costello and made no efforts to check if she had been injured in the reported altercation. Judge Levy SC found that the behaviour of the police suggested that they had prejudged the situation and had already decided that Ms Costello was not the victim, but the perpetrator. This was evidenced by the officer’s decision to take out an Apprehended Violence Order (AVO), known as an Intervention Order (IVO) in Victoria, before they had reached Ms Costello’s home and made any inquiries.

In response to the police failures, Ms Costello was awarded $25,000 in exemplary damages.