R v TERRY IAN POLLEY No. SCCRM 96/230 Judgment No. 6091 Number of pages - 23 Procedure - subpoenas - [1997] SASC 6091 - SASC 1997 case summary — Zoe

SASASC

R v TERRY IAN POLLEY No. SCCRM 96/230 Judgment No. 6091 Number of pages - 23 Procedure - subpoenas

[1997] SASC 6091

Supreme Court of SA|1997-04-03|Before: Nyland JJ

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Court

Supreme Court of SA

Decision date

1997-04-03

Before

Nyland JJ

Source

Original judgment source is linked above.

Judgment (105 paragraphs)

[1]

R v TERRY IAN POLLEY No. SCCRM 96/230 Judgment No. 6091 Number of pages - 23 Procedure - subpoenas (1997) 68 SASR 227 [1997] SASC 6091 (3 April 1997)

[2]

Procedure - subpoenas - subpoenas in criminal jurisdiction - whether files subpoened by the defendant from the Police Complaints Authority regarding complaints against the arresting officers should be disclosed to defence. Whether subpoened files contained material of "evidentiary value" - whether subpoened files were embraced by public interest immunity - whether subpoena was fishing. Whether Trial Judge was entitled to adopt earlier ruling of another Judge who was initially intending to conduct the trial - whether cross-examination on the propensity of the arresting officers to act in a certain (unlawful) manner was allowable. Criminal Law Consolidation Act 1935ss285a, 353; District Court Act 1991s25; Police (Complaints and Disciplinary Proceedings) Act 1985ss5, 48, referred to. Attorney-General's Reference (No 1 of 1988) (1988) 49 SASR 1; Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404; Carter v Hayes ; Maddison v Goldrich ; National Employer's Mutual General Association Ltd v Waind ; Hunt v Judge Russell ; Sankey v Whitlam & Others ; ; Mraz v The Queen ; , applied. R v Saleam ; R v Busby ; Knight v Jones, ex parte Jones ; R v Harmer ; R v Edwards ; Rogers v Home Secretary ; Conway v Rimmer ; ; Zarro v Australian Securities Commission ; ; R v Chief Constable of West Midlands Police, ex parte Wiley ; ; Bunning v Cross ; ; Carr v The Queen ; ; McKinney v The Queen ; , discussed.

[10]

The appellant was associated with a motorcycle club, said to have had poor relations with the police. It was suggested that there had been repeated victimisation of the appellant and other members of the club. As to this, His Honour said, "that may lay a basis for ill will and lack of candour in the present case". The judge said he was a little troubled with this. He indicated that the material before him indicated one complainant, against one of the police officers, was "probably a member of a motorbike club". His Honour said that this person had made a number of complaints. His Honour added that there was nothing in the documentation he had seen to indicate that any other complainant had an association with the club. His Honour also said there was no indication that club members, as a group, had been the subject of attention by police or of complaints by club members against the police. His Honour said that he had seen some transcripts and decisions on matters in the Magistrates Court. He indicated that none of them appeared to be of either direct or indirect relevance to the matter then before him, save that in one case there was transcript of evidence given by one of the police officers. The judge saw this as having no relevance to the issues in the case, although he conceded that it could become relevant if that officer were asked what he had then said and disputed the transcript. His Honour must have had in mind the provisions of ss28 and 29 of the Evidence Act, 1929. Those provisions require previous statements to be "relative to the subject matter of the cause". One other category mentioned by His Honour was that of records of interviews by senior police officers with one of the officers mentioned in the subpoena. The judge said that that officer was directed to answer questions or face disciplinary proceedings. His Honour indicated that the height of the relevance of those records, "would be as to credit, if their contents were to be denied". His Honour said that the limited potential relevance to credit was not enough to make him think that he should order the production of otherwise irrelevant material. His Honour's conclusion was that none of the material he had seen was properly to be regarded as evidentiary material. He declined to order disclosure of the material to the appellant's counsel. He said that he would bear in mind what he had seen as the case proceeded and that should some issue emerge to which anything he had seen appeared relevant he would raise it with counsel for further consideration.

[22]

The evidence in this case was that the three officers were on general patrol. They were in uniform. They were each then members of the Special Task and Rescue Division or Star Force, as it is commonly known. When cruising past the Hell's Angels Clubrooms they saw a woman standing at a car, in the car park. This woman was the appellant's girlfriend. Constable Pearce said that she told him that she was waiting for her boyfriend. She gave the appellant's name. Pearce said that name did not mean anything to him then. The police radio was used to do a vehicle and warrants check. As a result, the police officers were aware that the appellant, identified by police radio as the owner of the vehicle, had two outstanding warrants for non-payment of fines. Pearce's evidence was that the officers decided to "try and sweat off on" the appellant. Pearce gave evidence of leaving the police car and seeing the appellant come out of the Clubroom and walk to his vehicle, carrying something. Pearce returned to the police car. The police officers pursued the appellant's car. Pearce said his intention was to stop the vehicle and speak to the appellant about the warrant. The police officers pursued the appellant for a short distance, putting on blue lights to get the appellant's vehicle to stop. The vehicle stopped. Pearce and Walker-Roberts said they had a brief conversation with the appellant about the outstanding warrant for non-payment of fines and costs. It was Pearce's evidence that the appellant seemed less anxious when that was their declared purpose of speaking to him. They also spoke of being able to smell a very strong cannabis smell, as the window was put down and Pearce started to speak with the appellant. Pearce's evidence was that the appellant got out of the vehicle and paid the amount claimed with respect to the outstanding warrant. After a receipt was made out, Pearce says he went to look through the back window of the vehicle. He said the appellant became very aggressive, after which Pearce claimed he told the appellant that he had reasonable cause to suspect there was a prohibited substance in his vehicle and that he was going to search it.

[45]

The material produced to this court differs in one respect. The Complaints Authority was correct, in July 1995, to report that there were no adverse assessments made against either officer. On 21 February 1996, the Authority made an assessment with respect to the behaviour of one of these officers at the Adelaide Oval on 12 December 1993. The Authority made a finding of conduct by a member of the police force falling within the categories referred to in s32(1)(a) of the Police (Complaints Disciplinary Proceedings) Act 1985. The officer was said to have unreasonably exercised a power of arrest when arresting a person for offensive language at the Adelaide Oval. A question now arising is whether such an exercise of a power of arrest within a month of the occasion the subject of the charges before the court, is a matter of sufficient relevance on the issues specifically identified in this case that the complaint could and should have been disclosed. The views of judges in Edwards and Knight v Jones in particular do not persuade me that the behaviour of this officer on that occasion could have been used to test his credibility on the November 1993 occasion. None of the other matters, disclosed by the Authority, were matters that could have been put in evidence. They were too remote in time and not with respect to searches in the exercise of a statutory power. The first judge's suggestion that a complaint by someone, probably a member of a motorcycle club, might have satisfied the test of sufficient relevancy, is difficult to accept. An issue arose in February 1991with respect to which the Authority made a suggestion that the power of arrest should not generally be effected for minor offences. Reporting and complaints were preferable. That comment is equally capable of relating to the December 1993 matter. However, both the events of February 1991 and November 1993 are different and distinguishable from this case. The power of search giving rise to the appellant's arrest was exercised with respect to a suspicion with respect to an indictable offence, hardly to be compared with offensive language, whether outside a tattoo shop in Hindley Street or in the course of crowd behaviour at a cricket match at the Adelaide Oval. In my opinion, none of the occasions identified in the material produced in answer to the subpoena was sufficiently relevant to the issue the appellant sought to pursue. Nor can I identify, in the material produced, what Mullighan J describes as complaints suggesting behaviour "in disregard, in a serious way, of pre-conditions for the exercise of statutory or common law powers regarding the rights or liberty of the subject".

[70]

In an affidavit Mr Boyce described features of the procedures and function of the Police Complaints Authority. Information given to the Authority is confidential and unauthorized disclosure is prohibited: s48 of the Police (Complaints and Disciplinary Proceedings) Act 1985. According to him, disclosure of the contents of the files would be "extremely" detrimental to the effective functioning of his office as persons providing information about the two police officers could not be taken to have done so in expectation that it would be divulged in criminal proceedings. They have supplied information for a strictly limited purpose, namely the resolution of a complaint against police officers and their privacy should not be impinged without their knowledge. Disclosure of the information, Mr Boyce claimed, would set a precedent and he would not be able to assure future complainants of the confidentiality of the complaints process which, he believed, would cause many complainants to refrain from making complaints, thereby resulting in instances of improper conduct not being notified. Further, he deposed that complainants may not participate in the process if their identities and complaints were made known to parties in a criminal trial. He contended that the procedure provides for anonymity of complaints which could be threatened by disclosure in this way. Also, he said that police officers who are the subject of complaints are compelled to truthfully answer questions and there would be an element of unfairness in disclosing records of interviews of them as to whether their participation was not truly voluntary. Lastly, he expressed the view that disclosure of the files to the prosecution or the defence would provide them with an oblique method of gaining access to material to which they would not otherwise be entitled. He said "they would gain through the back door what they could not gain through the front door. The complaint process should not be, and was not, intended to be utilised as an information gathering process for unrelated court proceedings".

[80]

Of course it must be recognised that public confidence in the Police Complaints Authority, and the scheme administered by it, should be maintained. Some people with a genuine grievance may only be prepared to complain about a police officer in confidence. Others may only do so if their complaints are kept within the Authority. These considerations are not new and are a basis for well known privileges, such as the protection from disclosure of informers and the source of a police officer's information. Even accepting Mr Boyce's concerns at face value, such matters give rise to no more than the balancing exercise discussed in Sankey v Whitlam (supra) and Alister's case (supra). It is for the judge in a criminal trial to balance the two important interests: the public interest in preserving the efficacy of the system of the making and resolution of complaints against police officers and the public interest and the need for disclosure to ensure justice in an individual case. Other matters to be considered include the seriousness of the charge against the accused, the nature of the issues likely to arise at the trial, the nature of the evidential material disclosed in the documents and, in particular, whether the materials may assist in the preparation and development of the defence. Obviously, the files and records of the Authority would not be disclosed as a matter of course, but in cases involving serious charges, as is the case here, and where the documents do contain material of evidential value, it may be expected that they will be disclosed to an accused person. It is as well to keep in mind the observations of Brennan J in Alister's case (supra), at p456: "It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole" [the public interest relevant in that case] "and the safeguards that are necessary to ensure individual liberty. But in the long run, the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man's liberty, and the balance must tilt that way: cf Sankey v Whitlam (supra) at pp42, 61-62."

[95]

It appears that it was the demeanour of Sgt Williams in the witness box which carried the day. Often demeanour of an experienced witness reveals little about whether a witness is telling the truth and is accurate and reliable. In accordance with common sense, juries are commonly warned to have regard to the experience of a witness in giving evidence when assessing the witness and the evidence. Usually it is profitable to consider the evidence of a witness against the other evidence in the case, including any notes or documents made contemporaneously with the events which are the subject of the testimony. Here the trial Judge has simply rejected the notes as significant without saying why he reached that decision. The appellant had a substantial hurdle to overcome in practical terms. On the voir dire, he had to establish that the version of events given by the police officers was false. That is no easy task where there is little more than oath against oath. At the trial, the task could be even more difficult. It may not be an easy matter to persuade a jury that it is reasonably possible that a police officer would behave in such a manner and particularly when his evidence is confirmed by other police officers. These observations accord with views expressed by Deane J in Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314 in the context of oral confessions. He said, at pp337-338: "An accused person who is confronted, on his trial, with fabricated evidence of an oral confession is placed in an extraordinarily unfair predicament. The police witnesses are likely to be practised in giving evidence. The accused is not. The police will enter the witness box with the respectability of officialdom. The accused will enter it from the dock. The police evidence of an alleged oral confession is likely to appear to some jurors as being safe to act upon to an extent which those with greater experience of the administration of criminal law would know to be unwarranted. The area of effective cross-examination of those who give evidence that the alleged admissions were made or confirmed is limited. If the accused has a bad record, he or his counsel will be under further special constraints which, if disregarded, could, in some cases, effectively preclude the accused from giving sworn evidence: see per Jacobs J, Wright (1977) 15 ALR at p317. If the evidence of the alleged oral confession is the main evidence against an accused, his denial that the confession was made may involve a real risk that the issue at the trial will effectively become whether the police witnesses have combined in a criminal conspiracy to pervert the due administration of justice by perjury. However carefully a trial judge may direct a jury about the real issues and about questions of onus of proof, some jurors may be predisposed to see a verdict of not guilty as an aspersion upon the police force or the police officers of their State, city or town. And this in a context where the fact that the confession was allegedly made while the accused was held in police custody is likely to produce a situation where the only means available to the accused of disputing that he made it is by his own denial."