Shaw v Police Integrity Commission

Background 3 The background facts are that on 13 October 2004, a motor vehicle accident involving the plaintiff occurred in Louisa Road, Birchgrove. 4 The Commission had before it the investigation of "the conduct of NSW police officers and others involved in events arising from a motor vehicle accident at Louisa Road, Birchgrove on 13 October 2004 at approximately 2330 hours." No-one argues that that matter was not properly before the Commission. 5 Under s 32 of the PIC Act, the Commission may hold hearings for the purposes of an investigation. The Commission decided to hold a hearing and that hearing was held in public before the second defendant, the Commissioner, on 15 November 2004. An edited copy of the transcript is in evidence before me. 6 At the commencement of the hearing, the Commissioner said: "Today, pursuant to s 32 of the Police Integrity Commission Act, the Commission commences a public hearing in relation to an investigation codenamed Banff. The hearing is of an interim nature and part of an investigation which is continuing. In coming to the decision to hold this hearing in public, the Commission has had regard to relevant matters of public interest. I have appointed Mr Rushton, senior counsel, to assist the Commission in relation to this matter." 7 Mr Rushton SC then opened the matter. In his opening he said at p 3 of the transcript: "I should indicate what is the focus of this investigation and what is not. The focus or purpose of the Commission's investigation concerns the conduct of New South Wales police officers and others following the accident to which I have referred. The focus is not on whether, at the time of the crash, Mr Shaw was or was not under the influence of alcohol. That is a matter which I anticipate will be referred to the New South Wales Police by the Commission and dealt with as it deems appropriate in due course." 8 At p 4, counsel referred to the disappearance of a blood sample and commented: "The disappearance of the sample cast a considerable shadow over the New South Wales Police. Had the sample disappeared as a consequence of human error or, alternatively, police corruption or misconduct?" 9 At p 6, the opening referred to a statement given by the Police Minister to a radio journalist named Alan Jones. According to counsel, the Police Minister "frankly said", "Alan, it's unbelievable that this one sample would go missing. It's shocking, but it's absolutely unbelievable. There is either a major stuff-up, or a criminal act has occurred, and we have to get to the bottom of it, if it is humanly possible." 10 Counsel then continued: "The New South Wales Police Service was not the only body to be engulfed in a pall of innuendo and speculation. The staff of Royal Prince Alfred Hospital came to be tarred with the same brush. Was it possible, Commissioner, that one or more of those persons had, either alone or in concert, been involved in what the Police Minister described as 'a major stuff-up' or had they been involved in a 'criminal act'?" 11 The introduction into the opening of an on air discussion between the Minister and Mr Jones was, in my view, unfortunate. This is for at least two reasons. First, it meant that the opening was being given a sensationalist flavour. The decision to use the words of a talkback radio interview to express the impetus for the investigation did not befit the independent role of counsel assisting, and carried a tone of "jury rhetoric" rather than disinterested inquiry. 12 Secondly, instead of the prime thrust being whether there had been misconduct by police, the attention was diverted to whether the Minister was correct that there might have been a major stuff up or a criminal act perhaps by hospital staff or the present plaintiff. 13 Picking up the thought in [10], it is of course, clear, that there could be no public investigation into a "stuff up", major or minor or the commission of a criminal act by a person unless either the PIC or ICAC had power to do so under its Act. 14 The opening may have been the prelude to the alleged miscarriage of the inquiry. I do not know whether that opening was presented on the initiative of counsel or on the instruction of the Commissioner. However, it shows the wisdom of the accepted view of counsel assisting a Royal Commission is as set out in Dr Hallett's book "Royal Commissions and Boards of Inquiry" (Law Book Co, Sydney, 1982) at pp 217-218. 15 Ordinarily counsel assisting is not presenting the case for one side or the other. He or she is assisting the inquiry by soberly outlining the facts which counsel properly regard as reasonably clear, outline the procedure to be adopted and then let the evidence unfold. Dr Hallett makes this particularly wise observation: "There is the additional consideration that inquiries are usually very fully reported in the press and public interest is very high at the outset of an inquiry. There is often a build-up which arouses public suspicions which can be inflamed by counsel's opening statement. However, as an inquiry progresses, it could be expected that interest might wane, particularly if there is a lack of foundation to the initial suspicion. In those circumstances much harm can be done, particularly if names have been mentioned by counsel in his opening statement. A person might be exonerated from all blame or guilt, but irreparable harm done by the original allegations." 16 The PIC Act does not clearly differentiate the various roles of the Commissioner, his or her staff and counsel assisting. It is clear, however, that the hearing under s 32 is for the purposes of an investigation and is only part of the investigation. 17 Whilst, for some purposes, the PIC is akin to a Royal Commission, for many purposes it is not. The investigation is performed by the Commission, its staff and consultants and it by no means follows that every fact or probable fact that it considers it has discovered is revealed to public gaze. 18 The only limitation on the investigation is that the PIC is bound by rules of natural justice which require it, amongst other things, to give an opportunity of answering the allegations to people to be accused of misconduct. 19 As to the role of counsel assisting, in the case of what I might call the old style royal commission, matters were considered by the secretary of the Commission, statements from witnesses and others were forwarded to counsel assisting, and counsel assisting then made an independent assessment of what material would be placed before the Royal Commissioner. The reason for this is as was said by John Donaldson QC as he then was to the Salmon Royal Commission in 1966, that it is extremely difficult for the same person to assess the worth of the evidence objectively that has to be presented and also to make an objective and dispassionate assessment of that evidence when given. 20 However, with the PIC, it is unclear what the role is save that counsel has the task of conducting examination of witnesses and making submissions.