R v FERRI No. SCCRM-02-214 [2002] SASC 217

2. The Commissioner and Constable Kitto appeared by counsel, on the return of the subpoenas, as did the Police Complaints Authority, in person.

3. The Court was informed that no relevant records are held in relation to Constable Axon.

4. However, records were produced in respect of some 13 separate complaints related to Constable Kitto, although it must be said that, in all but two or three instances, the complaint had been directed at two or more officers said to have been acting in concert.

In my view, four of them are, generically, quite irrelevant to any potential issue in these proceedings. Although Constable Kitto, an officer of almost 20 years service, is named, in reality, the complaints concern either the Police operational system, as such, or raise what are essentially legal issues. Three of these were effectively dismissed and one - related to a closure of War Memorial Drive for a special event and a refusal to permit persons vehicular access to premises due to the closure - was resolved by conciliation.

A further seven were, in substance, dismissed - in most instances, utilising the standard jargon of the Police Complaints Authority to the effect that the likelihood of there being shown any substantial misconduct or other conduct warranting disciplinary action, did not justify further examination or committal of resources beyond what had already taken place. A perusal of the pertinent files readily reveals the validity of that assessment in each instance.

The remaining two files relate to what I would regard as complaints which, on the face of them, were trivial. One was actually withdrawn, after the complainant admitted abusing the police concerned. It related to the attendance of four police officers at the Rio Night Club, as a result of a disturbance and the consequent eviction, inter alia, of the complainant, who had been consuming alcohol.

The other concerned an incident when an aggressive motorist made excessive use of his warning device in relation to what proved to be Constable Kitto and one other police officer on plainclothes bicycle patrol. It was resolved by conciliation.

Objection was taken to the disclosure of the files in question to the defence, on the basis that the test established by the present s 48(7)(c) of the Police (Complaints and Disciplinary Proceedings) Act 1985 had not been satisfied. I upheld that objection and indicated that I would publish reasons at a later date. I now do so.

The relevant portion of s 48, in its present form, was enacted in 2000, subsequently to the events which were the subject of the decision of the Court of Criminal Appeal in R v Polley [1997] SASC 6091; (1997) 68 SASR 227. In my opinion, that decision does not bear on the proper construction of the section as it now stands.

So far as relevant, the section provides that neither the Commissioner nor the Authority can be required to disclose records of the type here in question, unless the Court is satisfied that there are special reasons requiring the making of an order for disclosure and that the interests of justice cannot adequately be served, except by the making of such an order.

A consideration of the history of legislation, as particularly revealed by relevant second reading speeches, indicates that the confidentiality provisions of the statute were directed towards what was, on the occasion of the 2000 amendment, described as the "sometime practice of defence counsel in a criminal trial subpoenaing the records of the Police Complaints Authority in relation to officers involved in the case in order to see if there was anything discreditable in their records which could be used to attack police testimony". The section was therefore sought to be amended to "tighten this up", by requiring the existence of special reasons and satisfaction that the interests of justice could not adequately be served, except by the making of an order for disclosure.

It is to be noted that this explanation was given subsequently to what was said in a second reading speech related to earlier amendments to s 48, in 1998. At that time the Minister commented:

"This provision was amended in 1996 to provide that it must be in the interests of justice before the Court can require information to be divulged. This change was a result of defence counsel conducting 'fishing expeditions' in the hope of finding something in Police Complaints Authority files that would discredit police witnesses in criminal trials. These 'fishing expeditions' are disruptive not only to the Authority and the Police but also to the trials of criminal matters, when subpoenas are sought as a matter goes to trial.

'Fishing expeditions' have not ceased and the provision is now further amended to require applicants to satisfy the court that there are special reasons requiring the making of an order and the interests of justice cannot be adequately served except by making the order. Where the information in the files is necessary to ensure that justice is done the information will be made available to the defence, but only then."

It is thus abundantly clear as to what was the evil sought to be addressed by the legislation. The phrase "special reasons" has not been judicially defined in the context of s 48 in its present form, but, clearly, it establishes a requirement that an applicant for disclosure must establish the existence of a situation which, to paraphrase the language of Chernov J in Telstra Corporation Ltd v CXA Communications Ltd [1998] VSC 72; (1998) 146 FLR 481, takes the case out of the mainstream of the obvious legislative intent that proceedings under the statute are to be confidential. The reasons must be special to the particular case, the features of which are out of the ordinary; and by reason of which it can also fairly be said that the interests of justice cannot adequately be served, absent the disclosure sought.

This is consistent with the reasoning of King CJ in Goldsmith v Newman and the State of South Australia (1992) 59 SASR 404 at 409-411. As the learned Chief Justice there pointed out at 409, the expression "special reasons" takes its colour, necessarily, from the context in which it is found and, in particular, the purpose which the relevant statutory provision is intended to serve. But, the expression "special reasons" necessarily connotes the existence of some situation which is, patently, a substantial departure from the normal disadvantage of not having access to the restricted information in issue.

It is plain that, in the instant case, the sole purpose of the subpoenas, is simply to cast about to obtain material with which to cross-examine Constable Kitto, in an attempt to portray him as an arrogant person, whose approach to the accused was less than pleasant, appropriate and sensitive in the particular situation which arose. It is sought, as I see it, to demonstrate a propensity, on his part, for arrogant behaviour. Although the material is said, potentially, to go to his credit, it is, in my view, largely a forensic strategy, designed to focus attention on an issue which is somewhat peripheral to the main issues in this case in any event.

Mr Borick QC, of senior counsel for the accused, said that the subpoenas were not a mere fishing expedition, because the defence had some prior knowledge that complaints had been made against Constable Kitto and it was desired to confirm the number and nature of them.

Even if the service of the subpoenas ought not, properly, to be characterised as a "fishing expedition" (a proposition as to which I have some reservations), the plain fact of the matter is that the clear desire of the defence is to trawl through the relevant disciplinary records and then use the material gleaned to attack Constable Kitto's credibility on a propensity basis, regardless of whether complaints made had been dismissed, or not found proved. If permitted, this would be a highly prejudicial strategy so far as the prosecution is concerned and one which would be almost impossible to meet. It is akin to throwing a lot of mud, in anticipation that some of it might stick.

As I have pointed out, my analysis of the complaints reveals that, leaving aside those which are, in any event, generically not relevant, all but two were found not to be substantiated, one being withdrawn. The remaining two were trivial and resolved to the satisfaction of the complainants in an informal manner.

Whilst, having regard to the apparent thrust of the defence case, the credit of the police officers is clearly in question, there is nothing out of the ordinary in such a situation; and there is nothing in the files which I have reviewed which could fairly be said to bear upon a resolution of that issue.

I accept, with respect, the comments of Lord Lane CJ in R v Edwards [1991] 2 All ER 266 at 275 to the effect that this is an area in which it is impossible and would be unwise to attempt to lay down hard and fast rules as to how a discretion ought to be exercised. As he said, the objective must be to present to the jury, as far as possible, a fair, balanced picture of the reliability of witnesses. Other alleged discreditable conduct of a police witness may well be relevant where a positive adverse finding had been made, but evidence of allegations which have not been upheld or substantiated will usually be too remote to permit of proper cross-examination, at least absent some striking and peculiar pattern of them, strongly suggestive of relevant propensity.

In the instant case, the material sought to be accessed in no sense fits the last-mentioned description. It could not possibly serve to demonstrate some propensity relevant to the issues in this case and the credit of Kitto in particular. Moreover, it would be grossly unfair to him and patently contrary to the policy of the legislation to release details of complaints made, spanning a long period of policing service, which were of no substance and quite properly rejected by the independent Police Complaints Authority.

Even if it be thought that the credibility issues and allegations of arrogant conduct on his part constituted special reasons for looking into the past history of complaints against Constable Kitto - as to which I have serious reservations as a bald proposition - it simply cannot be serving the interests of justice to waive the secrecy provisions of the legislation and permit access to complaints of the nature here in question, which were found either not to be of substance or trivial, merely to provide ammunition with which, unfairly, to seek to besmirch an officer's reputation. This is really the point which was being made by Lord Lane in Edwards.

For those reasons I declined to make an order that the relevant files be made available to the defence.