Attorney-General's Reference No 1 of 2012
[2013] TASCCA 14
•23 December 2013
[2013] TASCCA 14
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Attorney-General's Reference No 1 of 2012 [2013] TASCCA 14
PARTIES: ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
and
WRIGHT, James Philip
FILE NO: 1009/2012
DELIVERED ON: 23 December 2013
DELIVERED AT: Hobart
HEARING DATES: 15 May, 20 August 2013
JUDGMENT OF: Blow CJ, Porter and Wood JJ
CATCHWORDS:
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Illegally obtained evidence – Generally – Police Commissioner to publish Manual containing orders, directions, procedures and instructions – Statutory provision requiring police officers to comply with "all orders in the Manual" and with "any lawful direction or lawful order given by a senior officer" – Whether breach of provision of the Manual other than an order is a contravention of an Australian law.
Police Service Act 2003, ss42(3), 43, 93.
Evidence Act 2001 (Tas), s138.
Tasmania v Woodberry [2012] TASSC 89, considered.
Aust Dig Criminal Law [2685]
REPRESENTATION:
Counsel:
Attorney-General: D G Coates SC and S Karpeles
Respondent: G A Richardson and C Scott
Solicitors:
Attorney-General: Director of Public Prosecutions
Respondent: G A Richardson
Judgment Number: [2013] TASCCA 14
Number of paragraphs: 47
Serial No 14/2013
File No 1009/2012
ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2012
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
PORTER J
WOOD J
23 December 2013
Order of the Court
Question referred for determination:
"Does a breach of the provision of the Tasmania Police Manual but which is not a breach of an order in the Police Manual published under s93 of the Police Service Act 2003, amount to a breach of an Australian law for the purposes of s 138(1)(b) of the Evidence Act 2001?"
Answer:
"No"
Serial No 14/2013
File No 1009/2012
ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2012
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
23 December 2013
I agree with Porter J.
I confirm that in Tasmania v Woodberry [2012] TASSC 89, I was asked to make a determination as to the admissibility of evidence on the basis of oral evidence as to the contents of the Police Manual, without the production of the manual itself, and without any argument as to "directions, procedures and instructions" not amounting to "orders".
File No 1009/2012
ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2012
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
23 December 2013
Introduction
At his trial before Tennent J in November 2011, James Philip Wright was acquitted by a jury of two counts of attempted aggravated robbery. Pursuant to s388AA of the Criminal Code, the Attorney-General referred to this Court for determination a question of law which had arisen at the trial.
When the reference first came before this Court, the scope and adequacy of the question posed were raised, and the hearing was adjourned. On resumption, a second question was added to the reference by consent, and was later amended. During the hearing of the reference however, senior counsel for the Attorney-General said that it was only the additional question which required an answer.
In its final form, that question is:
"Does a breach of the provision of the Tasmania Police Manual but which is not a breach of an order in the Police Manual published under s93 of the Police Service Act 2003, amount to a breach of an Australian law for the purposes of s 138(1)(b) of the Evidence Act 2001?"
Background
At the respondent's trial, objection was taken to the admissibility of evidence of an identification of the respondent by one of the complainants at an identification parade conducted by police officers. Counsel for the respondent submitted to the trial judge that the identification parade was conducted in breach of Pt 4.5.5.2(1)(f) of the Tasmania Police Manual (the Manual). The relevant parts of the Manual which was provided to this Court[1] are as follows:
[1] The version provided to this Court was published on 11 November 2010. There may be later versions, but this seems to have been the version current at the time of the respondent's trial.
"4.5.5 IDENTIFICATION
4.5.5.1 GENERAL
ORDER
When it is necessary to ascertain whether a suspect can be identified by a witness an identification parade shall be held
(1)The safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group the person whom they saw on the occasion relevant to the crime or offence.
4.5.5.2 IDENTIFICATION PARADES
(1)Provided a suspect agrees to participate, an identification parade shall be conducted at a police station in accordance with the following procedures:
…
(f)whenever practicable, the services of not less than six (6) persons should be obtained for the identification parade. In selecting such persons, care should be taken that they are, as far as possible, of similar age, height, and general appearance as the suspect;
…".
The trial judge heard evidence on a voir dire, and took in as an exhibit Pt 4.5.5 of the Manual, but no other parts of it. Her Honour found that only five persons (foils) were obtained for the identification parade, and that the persons selected were not foils who were of similar age, height and general appearance to the respondent. Counsel submitted that Pt 4.5.5.2(1)(f) was an order within the meaning of s42(3) of the Police Service Act 2003, and that accordingly there had been a breach of an Australian law as referred to in s138(1)(a) of the Evidence Act 2001. Counsel submitted that the evidence ought not be admitted under that section, and alternatively, that the trial judge should refuse to admit the evidence by virtue of s137 on the basis that its probative value was outweighed by the danger of unfair prejudice.
Section 42 of the Police Service Act creates a code of conduct. Amongst other things, it requires a police officer to behave honestly and with integrity, and to act with care and diligence, in the course of his or her duties in the police service. Section 42(3) provides as follows:
"42 Code of conduct
…
(3) A police officer must comply with —
(a)all orders in the Police Manual; and
(b)any lawful direction or lawful order given by a senior officer."
Further, s42(11) of the Police Service Act prohibits an officer from conducting himself or herself in such a manner that is likely to be prejudicial to, or bring discredit to, the Police Service. Section 43 requires the Commissioner to establish procedures for the investigation into any alleged breach of a provision of the code of conduct. If the Commissioner determines that a police officer has breached a provision, the Commissioner may take one or more of a number of specified actions ranging from directing counselling or reprimanding, or to recommending the officer's appointment be terminated.
Section 138 of the Evidence Act is in the following terms:
"138 Discretion to exclude evidence improperly or illegally obtained
(1) Evidence that was obtained —
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law —
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained."
"Australian law" is defined in the Evidence Act as a law of the Commonwealth or a State or Territory of the Commonwealth, and in a reference to a State law, it includes written and unwritten law: Evidence Act, s3(1), (11). The core meaning of "contravention" in s138 involves disobedience of a command expressed in a rule of law which may be statutory or non-statutory, involving doing that which is forbidden by law or failing to do that which is required by law to be done: Parker v Comptroller General of Customs (2009) 83 ALJR 494 at 501 [30].
The trial judge's ruling
Having made the findings of non-compliance with Pt 4.5.5.2(1)(f), the trial judge referred to the decision of Blow J (as he then was) in Tasmania v Woodberry which had, at that time, not been generally published. Counsel had a copy and it was tendered. The trial judge noted that in Woodberry his Honour had considered that a breach of a provision of the Manual amounted to a breach of an Australian law having regard to the provisions of the Police Service Act.
The trial judge said that having had the opportunity of reading the reasons in Woodberry, the breaches found to have occurred amounted to breaches of an Australian law. (The reference to "breaches" seems to have been a reference to the two ways in which par(1)(f) had been breached.) Her Honour went on to address the question of whether the desirability of admitting the evidence outweighed the undesirability of admitting it, having regard to the way in which it was obtained. Her Honour held that it did not, and ruled the evidence inadmissible.
The decision in Tasmania v Woodberry
The judgment in Woodberry was made generally available after the trial of the accused in that case. The medium neutral citation is [2012] TASSC 89. The proceedings were determinations pursuant to s361A of the Criminal Code before the empanelment of a jury. In issue was the admission or exclusion of certain pieces of evidence. The reasons for the determinations were not generally published until after the trial of the accused in that case. One of the issues was the admissibility of evidence of admissions at the accused's place of work when the questions and answers had not been audio-visually recorded.
The evidence before his Honour about the Manual was oral evidence of its contents from two witnesses. The evidence from one officer was that the Manual required that when an officer suspected that a person may have committed an indictable offence, and where recording facilities were available, any official questioning of the suspect must be recorded. The second officer gave evidence that there was such a requirement in the Manual, and that it required interviews with suspects on indictable matters to be audio-visually recorded.
On the basis of that evidence his Honour found that the Manual "contained an order requiring any official questioning of a suspect in relation to an indictable offence to be audio-visually recorded": par[42]. Having found that the evidence of admissions at the accused's workplace was evidence of the making of admissions during official questioning, his Honour concluded that the evidence was obtained in contravention of an Australian law, namely s42(3)(a) of the Police Service Act. His Honour went on to find that the evidence had also been obtained improperly, and ruled that it was not admissible.
It can be seen that in Woodberry, his Honour made the finding that the relevant requirement was an order, without having been given the benefit of the Manual itself, and it would appear, without the benefit of argument about what distinctions may be drawn between different aspects of it.
The Manual
Section 7 of the Police Service Act deals with the responsibilities of the Commissioner. Section 7(3) enables the Commissioner to issue orders, directions, procedures and instructions for the efficient, effective and economic management and superintendence of the Police Service. More particularly, s93 provides as follows:
"93 Police Manual
(1) The Commissioner must cause a document known as the Police Manual to be published.
(2) The Police Manual is to contain —
(a) any orders, directions, procedures and instructions issued by the Commissioner as the Commissioner considers appropriate; and
(b) any other matter the Commissioner considers appropriate."
In the Manual provided to this Court, there is a Commissioner's foreword dated 6 September 2010. The Commissioner refers only to "orders, guidelines and procedures", and not to directions or instructions. Given the terms of ss7 and 93 of the Act, the introduction of a description of unspecified provisions as "guidelines" is perhaps unhelpful. The relevant parts of the foreword are as follows:
"The orders, guidelines and procedures contained in this Manual are issued for the guidance of all personnel in the performance of their duties and the effective management of Tasmania Police.
The Police Service Act 2003 requires police officers to act in accordance with the orders in this Manual. Whilst the Manual is designed to provide guidance to all personnel, in some cases non-compliance may be dealt with as a breach of discipline.
As the Manual is not all encompassing, members should seek advice in cases of uncertainty or situations not addressed herein. In any event, members should observe our core values of integrity, equity and accountability and are expected to exercise common sense and discretion to resolve situations and incidents by making decisions that are ethical, lawful and fair in furthering the objectives of Tasmania Police.
We are committed to providing the people of Tasmania with a professional and accountable policing service, and strive to improve our performance in all areas. To assist our members in providing such a quality service, my desire is for the Tasmania Police Manual to be regarded as a practical, contemporary and valued operational tool."
Under the heading "Instructions for Use", the Manual is described as providing "a compendium of orders, instructions and guidelines to assist members of Tasmania Police in fulfilling their responsibilities." There is no mention of directions or procedures. The instructions note that the Manual is divided into parts. There are in fact 14 parts. Part 4 is "Identification Procedures". Examples of other parts are "General Duties and Procedures", "Station and Equipment Procedures", "Emergency Procedures" and "Arrest Custody and Bail".
The instructions for use note that each of the parts is divided into sections, and that within each section a number of headings may be present. Those headings are specified as:
"· Policy
· Rationale
· Legislation
· Commissioner's Orders
· Guidelines/Responsibilities and
· References"
The instructions say that not all sections will contain all of the headings; they will only be present when they are relevant. The instructions go on to state:
"While the Manual is intended as a guide, Commissioner's Orders are to be complied with by all members of Tasmania Police as per the Police Service Act 2003.
Additional content outlining procedures and guidelines is provided to assist members in the discharge of their duties and responsibilities. These additional provisions are not intended to be prescriptive and may not necessarily provide the optimum solution in all circumstances. Members are expected to apply judgement and discretion and, on all occasions, must be able to demonstrate any action taken was reasonable and justifiable in the circumstances."
The use of the "box" device as illustrated in par[4] (above), apparently so as to identify and distinguish orders from other things, is maintained throughout the Manual. In the case of orders so identified, the word "shall" is almost invariably used to specify what it is that the member is required to do in the particular circumstances. In many instances of provisions which are not boxed "orders", the imperative words "must" or "should" are used. In other instances, the permissive "may" is adopted. Examples of the use of each of these words are found in Pt 4.5.5.2 – Identification Parades, Pt 4.5.5.3 – Photographic Identification and Pt 4.5.5.4 – Street Identification.
An illustration of the format which was discussed in argument is given by Pt 4.7.4 which is headed "Electronic Recording". This section refers to relevant legislation, the objectives of electronic recording of police interviews, and the specific legal requirements. Part 4.7.4.12 – "Recording of Entire Interview Procedure" – sets out a number of things which "must" or "should" or "should not" be done. Interposed between par1(k) which specifies that any suspension of interview should be clearly stated and noted, and par1(l) which specifies what should be done when an exhibit is shown to an interviewee, is the following:
ORDER
Members shall not leave persons unattended in a Police Interview Room with overt recording equipment.
That is the only "boxed" order in the entirety of Pt 4.7.4.
Discussion
It is implicit in the question posed, and explicit in the submissions of senior counsel for the Attorney-General, Mr Coates SC, that a breach of an order in the Manual amounts to a contravention of an Australian law. Mr Coates accepts that the breach of any other provision of the Manual may amount to an impropriety within the meaning of s138 of the Evidence Act, depending on the provision and on the circumstances of the case. However, the Attorney's argument proceeded on the assumption that it was only those things which are specifically identified in the Manual as "orders" which are the orders for the purposes of s42(3)(a) of the Police Service Act.
The assumption that it is only those things specifically identified as orders which can be properly described as orders, is challenged by the respondent. Mr Richardson submits that it is a matter of construction as to what is an order; an order is not necessarily confined to those things which are "boxed" and described as orders. He gave as an example Pt 4.2.4 to which I have referred. Mr Richardson submits that the only designated order is one which seems to have much less import and less direct relevance than other provisions which are couched in imperative or directive terms.
Another example given was Pt 2.26 – Offences Committed by Members of Other Australasian Police Services. The designated order in Pt 2.26.1 is that members shall notify their Commander within 48 hours in any case where they detect a member of any other Australasian Police Force or Service committing specified offences. Part 2.26.1(1) requires the Commander to forthwith notify the Assistant Commissioner (Planning and Development) in writing of the facts. Mr Richardson suggested that it was incongruous that given the terms of the designated order, a breach of which would be a breach of the law, Pt 2.26.1(1) would not be an order and its breach may have no consequences.
Mr Richardson observed that the original question posed in the Reference highlighted the point. The question was whether the trial judge was wrong in law in holding that a breach of Pt 4.5.5.2(1)(f) of the Manual was a contravention of an Australian law. That would have required a determination as to whether the provision was an order, and if it were otherwise, what consequences flowed in terms of the operation of s138. Mr Richardson submits that in any event, a breach of a direction contained in the Manual would be still be a contravention of an Australian law, because of the terms of s42(3)(b). I will return to this point.
Although there are some apparent peculiarities in what are designated as orders and what are not, I think it is clear that the Commissioner intended that the Manual delineate what are orders, as distinct from other things, by the use of the box device and the actual designation itself. At the same time, it seems to me that the question posed can only be answered conceptually and in the abstract, without making it specifically referable to the Manual in its present format. The text and formatting of the Manual may change from time to time.
In any case in which a question arises as to the nature of a provision of the Manual, because of its nature it would be a question for the court to construe the provision by the broad application of the ordinary principles of statutory interpretation: Pearce and Geddes, Statutory Interpretation in Australia, 7th ed (2011) at 2 [1.1]. The provision would have to be construed according to its text and context. The context would include such things as the Commissioner's Foreword.
The status of provisions other than orders
In support of the proposition that it is only a breach of orders as such which amounts to a contravention of law, the Attorney relies on a number of cases which deal with the status of police "standing orders". It was, and is, commonplace in a number of jurisdictions for the Commissioner to issue such orders. In this State, before the Police Service Act, they were provided for in reg 9(2) of the Police Regulations 1974. That provided that the Commissioner shall issue standing orders and instructions on the policy, methods, duties and organisation of the force.
It is submitted that it is well established that such orders are administrative arrangements and not rules of law. It follows, it is said, that with this background, Parliament's intention in enacting s42(3) of the Police Service Act was very clearly to only make a breach of orders in the Manual a breach of the law.
In R v Lee (1950) 82 CLR 133 at 154, the Court said that with regard to the Victorian Chief Commissioner's Standing Orders which corresponded to the Judges' Rules in England, "they are not rules of law … . The rules may be regarded in a general way as prescribing a standard of propriety, and it is in this sense that what may be called the spirit of the rules should be regarded". In R v Thomas [1991] TASSC 150 (B36/1991), Underwood J (as he then was) described the judgment of the Court in Lee as making it "clear that the Judges' Rules were no more than a general description of an appropriate standard of propriety …".
The next case relied on was Pense v Hemy [1973] WAR 42. Under s9 of the Police Act 1892 (WA), the Police Commissioner could make rules, orders and regulations for the general government of the members of the Police Force. Section 7 made officers liable to all such duties and obligations as existed either by the common law or by virtue of statute law. An officer was charged with neglect of duty under s19 of the Act. The particular duty was said to arise by virtue of a regulation made by the Commissioner. At 42, Burt J (as he then was), with whom Hale J agreed, said that the Commissioner's rules were required to establish and to maintain the discipline of the Force. The power was not to create the duties of the office but was, as the section specified, for the purpose of the control, management and discipline of the Force.
Citing Windeyer J in Reedman v Hoare (1959) 102 CLR 177 at 186, and Enever v The King (1906) 3 CLR 969 per Griffith CJ at 979, at 42 – 43 his Honour said that the product of the exercise of the power presupposed a body of law which independently existed concerning the powers, privileges, duties and responsibilities of a constable, and that the power was intended merely to deal with disciplinary control, leaving the nature of the powers and duties to be governed by the common law as modified by statute. His Honour went on to say that the product of the Commissioner's power to make rules and regulations was not statute law within the meaning of s7.
The Victoria Police Manual was considered by Warren CJ in Director of Public Prosecutions v Zierk [2008] VSC 184. Section 17 of the Police Regulation Act 1958 (Vic) enabled the Chief Commissioner to issue orders, to be known as standing orders, for the general administration of the force, and to issue instructions for the effective and efficient conduct of the force's operation. The Victorian Act contained a provision making it an offence to fail to comply with a standing order or instruction. At [40], her Honour said that: "The standing and application of the Victoria Police Manual seems essentially to be as an internal disciplinary document …".
As I have already noted, in addition to the point that other provisions framed in mandatory or imperative terms may properly be described as "orders", the respondent argues that breaches of things which can be described as "directions" are also breaches of law. Neither" order" nor "direction" is defined in the Police Service Act. It must be assumed that they are intended to have different meanings. The difference may involve degrees of formality, and it may be that the same imperative statement may be one thing or the other depending on the terms in which it is given. It may be that a failure to obey an order is generally treated as less serious than a failure to comply with a direction.
Section 42(3) of the Police Service Act
The answer to the question posed in the Reference is to be found in the proper construction of s42(3). The Attorney argues that the reference in subs(3)(a) only to orders, and not to directions, procedures or instructions, is a plain indication that it is only a breach of an order which is a breach of a code of conduct, and a breach of the law in that sense. If it had been intended otherwise, then Parliament would have included the further matters which, by s93, the Manual is to include.
The respondent argues that a breach of a direction contained in the Manual is a breach of the code of conduct, by virtue of subs(3)(b), which requires a police officer to comply with "any lawful direction or lawful order given by a senior officer".
The starting point for this discussion is the assumption of statutory interpretation that the express reference to one, to the exclusion of other similar matters, is taken to be deliberate. Section 93 mandates the publication of the Manual, and it provides that it is to contain four things: orders, directions, procedures and instructions. Subsection (3)(a) only refers to one of those four things.
The next point is an observation which immediately arises from the respondent's argument. It is that if subs(3)(b) covers directions contained in the Manual, then the subsection would also cover orders which are contained in the Manual, and there would then be no need for subs(3)(a) at all. Here, another principle of statutory interpretation arises. Courts are not at liberty to treat words or sentences in a statute as superfluous. All words must be given some meaning and effect as far as possible.
Given that subs(3)(a) relates only to orders in the Manual, it would be illogical were subs(3)(b) to be directed to all other orders, and to all directions whether in the Manual or otherwise, given by a senior officer.
In my view, the submissions made on behalf of the Attorney-General should be accepted. The legislative scheme is plain. Section 93 requires the publication of a Police Manual which is to contain certain things. Previously, such a set of orders, directions and instructions was discretionary, and the contents would not have been treated as statutory rules or provisions of law. They were matters governing the organisation and discipline of a police force.
However, in the Police Service Act, Parliament has deliberately made an aspect of the Manual something which it is an officer's duty at law to obey. Section 42(3)(a) specifies with particularity what part of the Manual that duty relates to. A failure to comply with things other than orders in the Manual might give rise to disciplinary action as conduct falling within s42(11). In my opinion subs(3)(b) concerns all other orders and directions in general which may be given by a senior officer. Subsection (3)(b) has no operation in relation to the Manual.
Answer
In my view, for the reasons which I have given, and noting the approach I have taken as to what may be an "order" in any particular Manual, the answer to the amended question in the Reference is "No".
File No 1009/2012
ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2012
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
23 December 2013
I agree with the reasons for judgment of Porter J.
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