Ferdinands v Commissioner of Police No. Dcaat-00-84

Trevor Kingsley Ferdinands v Commissioner of Police
[2000] SADC 114

Judge Sulan
Civil - Administrative and Disciplinary Division

On the 1st March 1998, Trevor Kingsley Ferdinands (“the appellant”), wrote to the Chief Executive Officer, Police Complaints Authority (“the Authority”), alleging racial harassment and intimidation by Inspector T. Harbour (“Harbour”), a senior officer, at that time attached to the Internal Investigations Branch of the Police Department.
The background to the allegations are that on the 10th July 1997, Harbour observed the appellant inside the TAB betting shop at the corner of Gawler Place and Pirie Street, Adelaide. The appellant was partly dressed in uniform. Harbour reported his observations to the Officer in Charge of the Firearms Section, to which the appellant was attached. For the purpose of this decision, it is unnecessary to discuss the outcome of that report.
The appellant alleged that the Harbour report was unfair and unjust and was part of the racial harassment and intimidation about which he complained. The appellant claimed that as a consequence of Harbour’s improper conduct, he had suffered stress and suffered ridicule in the workplace. He claimed compensation of $45,400. The appellant’s claim was considered by the Authority which determined not to investigate the complaint and it was dismissed.
The complaint by the appellant against Harbour resulted in an investigation of the appellant’s conduct in making the complaint. The appellant was charged with a breach of regulation 27(3)(c) of the Police Regulations pursuant to the Police Act 1952.
Regulations 27(3)(c) and 28 provide :
“An employee of the force shall be guilty of a breach of these regulations if the employee commits any of the offences set out below :
(1) …..
(2) …..
(3) misconduct towards an employee of the force, which offence is committed where such employee -
(a) behaves towards another employee in an oppressive, offensive, abusive or insulting manner, or
(b) assaults another employee, or
(c) makes a false or frivolous complaint against another employee, or
(d) is insubordinate or disrespectful either by word, act or demeanour to any member senior in rank.
Within this subregulation the terms “employee” and “member” shall include the Commissioner and Deputy Commissioner.
(4) …..
(1) …..
(2) …..
(3) …..
(4) …..
(5) …..
(6) …..
(7) …..
(8) …..
(9) …..
28. (1)    If a member is guilty of an offence against the Act or any other Act or a breach of these regulations the Commissioner may punish that member by:
(a)    dismissal, provided that in the case of a commissioned officer he has the approval of the Governor or, in the case of any other member of the Police Force, the approval of the Minister;
(b)    suspension without pay for a specified period;
(c)    (except in the case of a member who is a police aide), transfer to a position that attracts a lower rank, or reduction in seniority (or both);
(d)    temporary reduction in pay, but so that the total amount forfeited in the case of a member does not exceed one hundred and fifty dollars; or
(e)    by reprimand.
(2)    The Commissioner may punish any police cadet for misconduct;
(a)    by suspension without pay;
(b)    by temporary reduction in pay, but so that the total amount forfeited does not exceed fifty dollars; or
(c)    by temporary withdrawal of any rights or privileges.
Provided that a commissioned officer authorised by the Commissioner may punish any police cadet for misconduct by temporary withdrawal of any rights or privileges.
(2a)   Where the Commissioner decides to transfer a member, or to reduce his or her seniority, under subregulation (1)(c) -
(a)    the transfer or reduction cannot be on a temporary basis; and
(b)    the Commissioner must nominate where the member is to be placed in the seniority list as a result of the transfer or reduction in seniority.
(3)    The Commissioner may grant time for payment of any temporary reduction in pay, or may permit it to be paid by instalments and may arrange with the employee for the amount to be paid by means of deductions from the employee’s pay.
(1)    On failure to pay any temporary reduction in pay imposed in accordance with this regulation the Commissioner may deduct the amount involved from any moneys due to the employee.”
The charge alleged that the appellant had between the 28th February 1998 and the 25th March 1998, being an employee of the force, made a false complaint against another employee. Particulars of the charge were :
1.      On the 1st March 1998, Constable Ferdinands prepared and signed a statement of complaint against Inspector Terry Harbour of the Internal Investigations Branch.
2.      That Constable Ferdinands forwarded that statement to the Police Complaints Authority, and it was received by the Authority on the 24th March 1998.
3.      In that statement Constable Ferdinands made the following allegations about Inspector HARBOUR:
‘…..conduct which is disgraceful and unbecoming of any police officer.’
‘He is a fraud and obviously lives a life of double standards.’
‘…..he used his position and the Office of the Internal Investigation Branch to launch…..a mean spirited and racially hateful episode upon me.’
‘…..unprovoked racially based attack…..’
4.      There was no evidence to support any of those allegations.
1.      Those allegations were false.
The charge against the appellant for a breach of the Regulations was referred to the Police Disciplinary Tribunal (“the Tribunal”) and heard by Mr K.J. Prescott SM. On the 18th February 2000, the Tribunal made findings that the appellant was the author of a letter of complaint which had been forwarded to the Police Complaints Authority. The Tribunal found that there was no evidence to support the allegations made by the appellant about Inspector Harbour, who was a member of the police force and therefore an employee within the meaning of regulation 27(3)(c) of the Police Regulations 1982. The Tribunal found that the letter of complaint was a false complaint and therefore that the charge was proved beyond reasonable doubt. The Tribunal remitted the matter to the Commissioner of Police.
Section 46(1) of the Police (Complaints and Disciplinary Proceedings) Act 1985 (“PCDPA”) provides :
“46(1) A party to proceedings before the Tribunal may appeal to the Court against a decision made by the Tribunal in those proceedings.”

The Court is defined as the Administrative and Disciplinary Division of the District Court.

The appellant appealed against the decision of the Tribunal. There are eight grounds of appeal. The appellant seeks orders :
1.      Setting aside the judgment of the Police Disciplinary Tribunal and substituting an order dismissing the charges;
2.      In the alternative, an order setting aside the judgment of the Police Disciplinary Tribunal and an order remitting the matter back to the Tribunal for hearing before a magistrate other than Mr Prescott SM;
3.      Costs.
Ground A
The learned special magistrate erred in hearing the complaint in that :
(i)     he was required by law to dismiss the proceedings;
(ii)    alternatively, he had no power to hear the proceedings;
(iii) alternatively, he should have stayed the proceedings as an abuse of process.
Section 49 of the PCDPA provides :
“Offences in relation to complaints
49. (1)    Where -
(a) a person in making a complaint under this Act makes a false representation knowing the representation to be false; and
(b) the complaint would not, apart from the false representation, be liable to be investigated or inquired into under this Act,
the person making the complaint is guilty of an offence.
Maximum penalty:               $5 000 or imprisonment for 1 year.
(2) A person who -
(a) prevents another person from making a complaint under this Act; or
(b) hinders or obstructs another person in making a complaint under this Act,
is guilty of an offence.
Maximum penalty:               $5 000 or imprisonment for 1 year.
(3) Proceedings for an offence against subsection (1) must not be commenced except with the consent of the Authority and no proceedings for an offence other than against subsection (1) may be commenced or heard against a person in respect of his or her making a complaint under this Act.
(1) An apparent genuine document purporting to be a certificate of the Authority certifying that he or she has consented to the commencement of proceedings for an offence against subsection (1) is to be accepted, in the absence of proof to the contrary, as proof of the matter so certified.
(2) On convicting a person of an offence against subsection (1), the court may order him or her to pay to the complainant a reasonable sum for the expenses of or incidental to any investigation made under this Act as a result of the false representation.
(3) Any amount received by the complainant under subsection (5) is to be paid by him or her to the Treasurer in aid of the Consolidated Account of the State.
(4) In this section -
‘complaint under this Act’ means a complaint to a member of the police force or the Authority about the conduct of a member of the police force.”
Mr Woods, for the appellant, submitted that section 49(3) of the PCDPA prohibits the commencement or hearing of proceedings for an offence other than against section 49(1) and then only with the consent of the Authority. He submitted that the proceedings for a breach of regulations are proceedings for an offence and by virtue of section 49(3) those proceedings cannot be commenced or heard.
Mr Powell, for the respondent, submitted that firstly, the letter written to the Authority by the appellant did not constitute a complaint under the PCDPA and further that the bringing of proceedings pursuant to the Police Regulations for a breach of regulation 27(3)(c) was a disciplinary proceeding and not a proceeding for an offence.
As to the first of Mr Powell’s submissions, he argued that the subject letter ceased to be characterised as a complaint when the Authority determined not to proceed with the investigation.
The Shorter Oxford Dictionary defines “complaint” as the expression of a grievance or injustice suffered. “Complaint” also has a technical legal meaning in the context of a formal accusation or charge taken in the Magistrates Court. Section 49 of the PCDPA is concerned with the making of complaints. Section 49(1) provides for the offence of making false representations by a complainant. Section 49(2) deals with obstruction and hindering a complainant in the making of a complaint. Section 49(7) defines complaint as meaning a complaint to a member of the police force or the Authority about the conduct of the police. In my view, the context in which the word is used in the PCDPA does not permit of an interpretation that the word “complaint” is restricted to the formal commencement of proceedings. The policy of the Act is to ensure that persons who make complaints against members of the police force, are protected from having proceedings brought against them for an offence other than under the PCDPA. The policy behind the Act is not to discourage people from bringing complaints about police officers to the Police Complaints Authority. Once a complaint is brought, then it is a matter for the Authority to determine whether an investigation is warranted and if so, whether any charges should be instigated. If a complaint is withdrawn or the Authority determines that there is no justification in further investigating a complaint, then the Act provides for protection of the complainant against criminal proceedings relating to a false complaint, unless the Authority authorises the bringing of those proceedings. Any proceedings can only be brought under the Act. The legislature has indicated an intention to protect persons who may make complaints against members of the police force in respect of any consequences that may flow from the bringing of such a complaint by giving the Authority control over prosecutions against complainants who report matters to the Authority.
In my view, “complaint” in the PCDPA is to have its ordinary and natural meaning which includes an expression of injustice suffered whether oral or in writing. Once that expression has been made to the Authority either orally or in writing, a complaint has been made. The fact that the Authority determines not to further investigate the complaint, does not mean that the expression of grievance or injustice is not a complaint. The section is aimed at those who knowingly make a false allegation. I therefore reject the submission of the respondent that the letter written by the appellant is not to be characterised as a complaint.
In respect of the appellant’s submission that the bringing of proceedings for contravention of regulation 27(c) is prohibited by section 49(3) of the PCDPA, Mr Powell submits that the proceedings are not proceedings for an offence but rather proceedings for a breach of discipline.
“Offence” is not defined in either the Police Act or the PCDPA. “Offence” has no technical meaning in English law but is commonly used to signify any public wrong, therefore, not only crimes or indictable offences, but also offences punishable on summary conviction, are included[i]. The PCDPA distinguishes between an offence and a breach of discipline. The PCDPA provides that where a complaint is made to the Authority or to a member of the police force, then the Authority has a discretion to determine whether or not the complaint or reference should be further investigated. Section 21 of the PCDPA provides that one of the grounds for determining not to further investigate a matter is if a person is being charged with an offence or breach of discipline in relation to the conduct (section 21(1)(d)). Section 21A(8) provides that information obtained in relation to the subject matter of a complaint during an informal inquiry by the Authority may not be used in proceedings in respect of a breach of discipline unless that proceeding is in relation to the providing of false information with the intention of obstructing the proper resolution of a complaint before the Authority. Section 25(8) provides that a member of the police force who, without reasonable excuse, refuses to furnish information, produce a document or other record or answer a question when required, or furnishes information or makes a statement which is false in a material particular, may be dealt with in accordance with the Police Act for breach of discipline. Throughout the PCDPA there are numerous references to breaches of discipline. The Act draws a distinction between an offence and a breach of discipline. Section 49(3) makes reference to only proceedings for an offence. No reference is made to breach of discipline.
The Police Act 1952 under which the subject regulations are made, deals with the employment and duties of police officers. The Governor is empowered to make regulations.
The proceedings brought against the appellant were brought pursuant to Part 7 of the Police Regulations 1982. Regulation 27 is contained in the section which is titled “Discipline”. Regulation 27 deals with such topics as failing to carry out orders, failing to carry out any specified direction, acting in a manner which is prejudicial to the good order and discipline in the force or in a manner which reflects or is likely to reflect discredit on the force, smoking in public whilst in uniform when travelling on a public conveyancing when smoking is not prohibited and idling or sleeping on duty. These are just some of the matters referred to in regulation 27. These are matters relating to internal discipline within the police force. Although the regulations speak of an offence the proper characterisation of those matters are breaches of discipline.
Mr Woods relied on the decision of Re Matsqui et al. And Matsqui Policemen’s Association, Local Number 7[ii].In that case, the British Columbia Court of Appeal considered whether the bringing of a charge under section 54.1 of the Police Act R.S.B.C. 1979 and in particular, the Police (Disciplinary) Regulations C.R.B.C. 1985, in respect of a disciplinary default for neglect of duty amounted to a proceeding for an offence and whether a distinction was drawn between a disciplinary default and an offence. In proceedings against a constable, he had been acquitted of a disciplinary default of neglect of duty under the relevant Police Regulations. The constable sought to be indemnified in respect of legal and other fees incurred in the defence of the proceedings. Section 54.1 of the Police Act provided that a municipal constable who had been charged with an offence against a regulation of the Province in connection with the performance of his duty, may recover costs incurred by him in the proceedings connected with the charge if recommended by the Police Board and considered appropriate in the circumstances. The Police Board argued that the bringing of a proceeding under the regulations for a disciplinary default did not amount to an offence within the meaning of the Act. The dispute was referred to the Arbitration Board.
The Arbitration Board determined that the bringing of such a proceeding was a charge of an offence against the regulations of the Province and that the constable should be reimbursed. The Police Board appealed.
The Court of Appeal made the following observation at page 681 :
“Words in a statute are primarily to be construed in their ordinary meaning of common or popular sense, unless the context requires some special or particular meaning to be used. The word ‘offence’ is not defined in the Offence Act for the purpose of that statute. The word ‘offence’ is not defined in the Police Act or the Police (Disciplinary) Regulation for the purpose of those enactments. ….. This absence of definition indicates legislative intent that the word ‘offence’ is to be coloured differently from statute to statute, as to its precise meaning and connotation, by the context and nature of its use within the framework of the particular statute under review.”
In Matsqui’s case the court held that a disciplinary default was to be characterised as falling within the ambit of the word “offence”. The court relied on the Oxford Universal Dictionary in which the word “offence” connotes the act or fact of offending, wounding the feelings of, or displeasing another; a breach of law, duty, propriety or etiquette; a transgression, sin, wrong, misdemeanour or misdeed; and nuisance. The court observed that in ascertaining the connotation or attributes commonly associated with the word “offence”, as used in a statute, one must look to the occasion and setting of its use in the statute in question. In Matsqui’s case, the court determined that, considering those matters, a disciplinary default did fall within the characterisation and classification of an offence within section 54.1 of the Police Act.
It is to be noted that the Ontario Court of Appeal in a case of Re Trumbley et al. And Fleming et al.[iii] concluded that a police officer charged with an offence against discipline under regulations made under the authority of the Ontario Police Act, was not “charged with an offence” within the meaning of those words in the opening of part of section 11 of the Canadian Charter of Rights and Freedom. In Matsqui’s case, the British Columbian Court of Appeal distinguished Trumbley’s case on the basis that the Ontario decision had turned on an interpretation of the Canadian Charter of Rights and Freedom.
In my view, Matsqui’s case can be distinguished from the present case on the grounds that the PCDPA draws a clear distinction between proceedings for an offence and disciplinary proceedings. The issue is determined on an interpretation of the PCDPA. There is no ambiguity in the words of the statute. Disciplinary proceedings are defined.

I conclude that a proceeding for a breach of the regulations under the Police Act 1952 is a proceeding for a breach of discipline within the meaning of section 3 of the PCDPA. I conclude that the prohibition on bringing proceedings for an offence contained in section 49(3) of the PCDPA does not include proceedings for a breach of discipline pursuant to the Police Act and Regulations. I find that ground A is not made out.
Ground B
The learned special magistrate erred in deciding that the false representation did not have to be knowingly or recklessly made.
(i) alternatively, he failed to properly avert his mind to this matter;
(ii) alternatively, if knowledge is not an element of the offence, then the learned special magistrate failed to inform the unrepresented appellant that he would be not guilty of the offence if he had an honest and reasonable belief that his accusations were true.
Mr Woods submitted that in order for a breach of discipline under regulation 27(3)(c) to be made out, it must be established beyond reasonable doubt that the defendant had the requisite mens rea, that is, that he knew that the complaint was false or was recklessly indifferent to whether the allegations and complaint were true or false. He submitted that in order for the appellant to be found guilty of a breach of discipline, it must be proved that he knew the complaint was false or realised that it may be false and that he made it with a reckless disregard, whether it be true or false. Mr Woods submitted that a breach of regulation 27(3)(c) is not an offence of absolute or strict responsibility and it was therefore necessary for the complainant to prove beyond reasonable doubt the mens rea of any officer charged with a breach of that regulation. In his reasons for judgment the magistrate determined that the complaint was a false complaint made by the appellant and that was sufficient to support the charge.
The magistrate did not consider that mens rea was an element of the offence. Mr Powell submitted that the magistrate had correctly identified the elements of the charge. He argued that the regulation does not require an element of knowledge or intent to be established in order for the offence to be made out. He relied on the decision of Bhagwanani v Martin[iv]. In that case, Bhagwanani was charged with an offence of assuming the name or title of occupational therapist when he was not registered, contrary to section 20(1)(a) of the Occupational Therapists Act 1974. Section 20(1) made it an offence for a person to assume either alone or with other words, the name or title of occupational therapist, or to use any name, title or description likely to cause any person reasonably to believe that he is registered under the Act, unless that person is so registered. It was argued that the offence was not one of strict liability and because the necessary intention had not been proved, the appeal should succeed. Bleby J rejected the argument. Bleby J found that section 20 made no reference to terms such as “wilfully” and “knowingly”, and that the purpose of the Act was to regulate the profession of occupational therapy. He found that on a construction of the Act, the presumption that mens rea is an essential element in a statutory offence had been rebutted. His Honour noted, in arriving at his conclusion, that words such as “wilfully” and “knowingly” were used in other sections in the Act. Further, that the omission of those words in section 20 tended to indicate that Parliament did not intend an offence against the section to require proof of mens rea. Another factor upon which Bleby J relied was that the penalty for a breach of section 20 was limited to a fine not exceeding $5,000.
Turning to regulation 27, I note that for a breach of regulation 27(5) to be established, a police officer must knowingly make a false, misleading or inaccurate written statement or entry in an official document or record or knowingly make a false, misleading or inaccurate oral statement relating to his duties or knowingly omit to record or report a fact or incident which is required of him through general special orders, the Act, these regulations or any other Act. There is therefore a specific reference to intention and knowledge in regulation 27(5). Regulation 27(7)(c) provides that an offence of corrupt and improper practice is committed when an employee, through an intentional act or omission, places himself under an obligation to any person as likely to affect the proper carrying out of his duties. Regulation 27(11) provides that a breach of regulations is established where an employee wilfully or negligently destroys Government property. A distinction has been drawn between that conduct which requires specific knowledge or intent and conduct which does not.
I also observe that any breach of regulation 27 is to be referred to the Commissioner whose power in dealing with such breach is limited to dismissal, suspension, transfer, temporary reduction in pay of not more than $150 in total, or reprimand.
In considering the presumption of mens rea in respect of statutory offences, Dawson J in He Kaw Teh v The Queen[v], observed :
“Conduct prohibited by legislation which is of a regulatory nature is sometimes said not to be criminal in any real sense, the prohibition being imposed in the public interest rather than as a condemnation of individual behaviour. On the other hand, if a prohibition is directed at a grave social evil, the absolute nature of the offence may more readily be seen, particularly if proof of intent would be difficult and would represent a real impediment to the successful prosecution of offenders.”
The regulations in question deal with discipline within the police force. In my view, the regulations do not fall within those categorised by Dawson J as directed at a grave social evil.
If the legislature had intended knowledge or intent to be a necessary ingredient to establish a breach of regulation 27(3)(c), it would have so provided by using words such as “knowingly” or “intentionally”. I conclude that intention or knowledge is not an element of a breach of regulation 27(3)(c).
It was submitted on behalf of the appellant that if knowledge was not an element of the offence, then an honest and reasonable belief by the appellant, that the complaint was not false, is a defence to the charge. In his findings, the magistrate did not consider the defence of honest and reasonable belief. In He Kaw The (supra) Gibbs CJ at page 533 referred, with approval, to a judgment of the Supreme Court of Canada in Reg. v Sault Ste.Marie, which held that where an offence is truly criminal, the prosecution must establish a mental element. There is a middle position between cases where full mens rea is required and cases of absolute liability. Regulatory offences are often within that class of case in which it is a defence for the defendant to prove, on the balance of probabilities, that he was not negligent. The Supreme Court of Canada held that offences could be classified into three categories as follows :
1.      Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
2.      Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.
3.      Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.
Dawson J said in He Kaw Teh at page 591 :
“In this country it is well established by authority that whatever the presumption, if any, that mens rea, to be proved by the prosecution, is an ingredient of a statutory offence, there does exist a presumption that honest and reasonable mistake is to be treated as a ground of exculpation.”
A breach of discipline results in a sanction which includes a monetary penalty, suspension from duty or loss of employment. In my view, the observations of Dawson J are applicable to breaches of discipline which carry sanctions which may affect a person’s career and future. I consider that similar principles of statutory construction apply to regulation 27 as are applicable to statutory offences.
Mr Powell conceded that a Proudman v Dayman defence was available in respect of a breach of regulation 27(3)(c).
I consider that Mr Powell’s concession was properly made. In Davis v Bates[vi] Von Doussa J discussed some of the considerations which are relevant to determining whether the legislation intended to create an absolute offence. They include the words of the statute, the subject matter with which the statute is concerned and whether putting the defendant under strict liability will assist in the enforcement of the regulation.
I consider the intent of the regulation is to govern wrongful conduct and therefore it was not intended that breaches of discipline be regarded as absolute offences such as those which seek to prevent a social evil. The sanctioning of officers who have a reasonable and honest belief about the truth of a statement in respect of a fellow employee, albeit that the statement ultimately proves to be false, cannot, in my view, have been contemplated by the legislature. A persons good employment record and promotional prospects should not be put at risk for making a false complaint about a fellow employee if the maker of the complaint can satisfy the Tribunal that he reasonably and honestly believed the information to be true and accurate. It is important that those who work within the police force should not be discouraged from making complaints when it is reasonable to do so and the person had an honest belief in the truth of the complaint.
The whole thrust of the PCDPA is to encourage genuine complaints albeit that a number of the complaints will not be further investigated or ultimately be sustained. Included as complainants are other police officers and I do not accept that a police officer who holds an honest and reasonable belief in the subject matter of a complaint should nevertheless be found to be in breach of discipline if it transpires that the complaint was false.
The magistrate failed to consider the question of honest and reasonable belief and he treated the breach as an absolute offence. I consider he was in error and should have considered a Proudman v Dayman defence. I would allow the appeal on this ground.
Ground C
The Learned Special Magistrate erred in finding that there was any or sufficient evidence of “falsity” to prove this element beyond reasonable doubt.
Harbour gave evidence denying the allegations made in the letter of complaint. The magistrate must have accepted the evidence of Harbour.
On that evidence alone, it was open to the magistrate to find that the allegations were false. In my opinion, this ground of appeal is not made out.
Ground D
The Learned Special Magistrate erred in that he reversed the onus of proof.
In his reasons the magistrate stated that the complainant undertook, by laying of the complaint, to prove the elements beyond reasonable doubt. In his findings, the magistrate found the charge against the appellant had been proved beyond reasonable doubt. Mr Woods complained that in his judgment the magistrate commented on the lack of evidence adduced by the appellant in support of the allegations in the letter of complaint, and thereby reversed the onus of proof. In my view, it was a reasonable observation that a person who has made serious allegations of racial discrimination against a fellow employee, should be asked upon what evidence he based his complaint and a failure to point to any evidence to support the allegations, is properly a matter to be taken into account. However, it does not follow that because the magistrate commented adversely on the appellant’s failure to point to evidence supporting his allegations, that he therefore reversed the onus of proof. The magistrate stated that he was satisfied beyond reasonable doubt that all elements of the offence had been proved.
I reject this ground of appeal.
Ground E
In the alternative to ground C and D, the learned special magistrate did not provide sufficient reasons in order for the appellant to be sure as to how he came to his final conclusion.
Section 45 of the PCDPA requires the Tribunal to give reasons for its decision if requested by a party or the Authority. The Tribunal provided reasons on the 18th February 2000. Mr Woods submitted that the findings of fact were deficient and that it is not possible to determine upon what factual basis the magistrate applied the law and the basis upon which he directed himself upon the onus of proof. Mr Woods submitted that there was insufficient evidence to prove the falsity of the complaint and it is not possible to ascertain from the reasons how the magistrate arrived at his conclusion as to the falsity of the complaint.
In Remyko v Samuels[vii], Bray CJ considered the effect of a court not giving reasons or adequate reasons. His Honour observed that where no reasons were given, there was an onus in the Court of Appeal to satisfy itself that the proper conclusion has been reached and if it cannot be so satisfied, the conviction cannot stand. He referred to the decision of Mayo J in Watts v Walsh[viii], in which His Honour considered that a court of summary jurisdiction would be presumed to have found as a fact everything necessary to support its conclusion, although the same are not explicitly stated, provided there be evidence upon which such findings may satisfactorily be based.
The magistrate gave brief reasons. He dealt with the elements of the offence and correctly stated that those elements must be proved beyond reasonable doubt. He did not specifically deal with the evidence called on behalf of the Commissioner of Police. Harbour gave evidence in which he denied that he acted improperly or that he engaged in harassment or intimidation of the appellant. It is implicit in the findings that the magistrate accepted Harbour’s evidence. The magistrate referred to the appellant’s evidence in his reasons and observed that no evidence to support the allegations in the complaint was presented.
It cannot be said that the reasoning of the magistrate was such that the findings cannot stand. The magistrate failed to consider the defence of honest and reasonable belief. In other respects, in my view, there is sufficient in the reasoning to support the findings of the magistrate, and I reject this ground of appeal.
Ground F
The learned special magistrate failed to properly and adequately inform the appellant, who was unrepresented, as to his rights and proper processes of the court at each material stage, causing prejudice to the appellant.
Mr Woods complained that there was a failure on the part of the magistrate to properly advise the appellant on matters relating to evidence and in respect of any defences which may be open to him.
The appellant gave evidence. He made a short statement and the special magistrate then commenced to ask him questions. He was asked about the complaint and about his responses to Constable Westmacott who had interviewed him about the complaint. In his statement to Constable Westmacott, the appellant claimed that there was a culture within the Police Department which resulted in discrimination against him over a number of years. He claimed the Harbour incident was indicative of the discrimination. The magistrate sought from the appellant specific evidence to support the complaint. In my view, the appellant was not given a sufficient opportunity to explain in detail why he believed that he was the subject of discrimination. He stated that he relied on the circumstances surrounding Harbour’s sighting of him on the 10th July and Harbour’s subsequent conduct in making a report to the appellant’s superior officer. He was prevented from cross examining witnesses about the 10th July incident.
In Baghwanini v Martin (supra), the appellant chose not to give evidence. He complained that he was denied the opportunity of relying on the Proudman v Dayman defence because it had not been explained to him. It was submitted that the magistrate should have explained to Baghwanini that his failure to give evidence excluded the possibility of a Proudman v Dayman defence.
Bleby J considered whether a magistrate has an obligation to warn a defendant about putting his case to the prosecution witnesses and informing a defendant of relevant procedures and possible defences. His Honour said at page 454 :
“It was not for the court in this case to advise the appellant on possible defences to a breach of statute or on intimate questions of strict liability, of the rebuttable presumption in favour of proof of the requisite mental state, or of the possibility of a Proudman v Dayman defence. It was not for the magistrate to speculate on or suggest possible lines of defence. If it had been apparent from the cross examination of the prosecution witnesses that a defence based on the appellant’s belief in a set of circumstances was being pursued, and the appellant indicated that at the close of the prosecution case that he did not intend to give evidence, it may be appropriate for the magistrate to point out to him the difficulties of succeeding with a foreshadowed defence if he does not give evidence. However, no suggestion of any such defence had been raised in the course of the prosecution case before the Magistrate.”

His Honour determined that there was nothing remotely resembling a possible Proudman v Dayman defence raised.

The appellant in this case had raised the issue of his belief and understanding of the discriminating culture which he believed existed within the Police Department.
He was not advised of the Proudman v Dayman defence so that he could apply his mind to it when giving evidence. Nor, in my view, did the questions of the magistrate give the appellant a sufficient opportunity to develop his defence.
I consider Baghwanini’s case is distinguishable. In that case, Bleby J considered that a Proudman v Dayman defence was not remotely open to the appellant. In my view, such a defence is open to the appellant and he was not advised about it, nor did he have an opportunity to address the defence. The learned magistrate should have explained to him the nature of the defence to enable him to focus on that part of the case.
I uphold this ground of appeal.
Ground G
The learned special magistrate erred in admitting exhibit “C1”, “C2”, “C3”, “C4”, “C5” and “C6”.
Exhibit “C1” is the letter of complaint dated the 1st March 1998, to the Chief Executive Officer, Police Complaints Authority, signed by appellant. Mr Woods argued that the letter had not been formally proved and therefore should not have been admitted. In my view, there is no substance to this argument. It is conceded that the letter was signed by the appellant, that it was the letter of complaint which forms the basis of these proceedings. Formal proof of the appellant’s signature and the receipt by the Authority of the letter was easy to obtain. The appellant did not deny writing the letter nor did he deny the allegations in the letter. Even if there had been a deficiency in formally proving the letter, the appellant has suffered no injustice and I would dismiss this ground.

The appellant further complains that the letter of complaint should not have been tendered because section 48(2) of the PDPA prohibits the divulging of or communication of information relating to a complaint. Section 48(2) provides :
(2) Except as required or authorised by this Act or by a relevant person, a person who is, or has been, a prescribed officer must not, either directly or indirectly, make a record of, or divulge or communicate, information acquired by reason of his or her being, or having been, a prescribed officer, being information that was disclosed or obtained under this Act.

The appellant argues that the divulging of the complaint was in breach of section 48(2) and the magistrate should have exercised his discretion to exclude it.

Section 19(1) requires the Authority to notify the Commissioner of a complaint and to furnish the Commissioner with particulars of that complaint. Further, the Commissioner is required to refer the complaint to the Internal Investigation Branch for investigation.
It was submitted by Mr Powell that the furnishing of details of the complaint to the Commissioner was required and authorised under the Act. I agree with the submission of Mr Powell. Once the appellant had made a complaint to the Authority, it was required to notify the Commissioner and the Commissioner was entitled to have before him a copy of the complaint. In my view, there is no merit in this point.
The appellant further argues that exhibits “C2”, “C3”, “C4”, “C5” and “C6” should not have been admitted. “C2”, “C3”, “C5” and “C6” are audio tapes and transcripts of those tapes, of interviews between the appellant and the investigating officer from the Internal Investigation Branch. “C4” is a report prepared by Harbour in respect of his observations of the appellant at the TAB betting shop. It is submitted that the learned magistrate should have excluded those exhibits because of failure to formally prove them. It was also submitted that there was no evidence that the transcript was an accurate record of the tape.
In my view, there is nothing in this point. There is no dispute that the transcript of records of interview were other than accurate. Harbour gave evidence to prove his report which was relevant to issues before the Tribunal. The material was properly tendered and received and I therefore reject this ground of appeal.
Ground H
That the appellant did not receive a fair trial.
The notice of appeal provides six particulars in support of this ground. I do not intend to deal with each particular in detail. It was submitted that the appellant was denied the ability to cross examine witnesses as to the adequacy of the investigation. It was contended by Mr Woods that it was the appellant’s case that the investigation of the appellant’s complaint was inadequate and that in itself explained the lack of evidence to substantiate his claims against Harbour. He argued that the appellant was denied the opportunity of demonstrating that if the matter had been adequately investigated, then there would have been evidence to support his complaint. It has not been demonstrated to me how such cross examination or leading of evidence about the extent of the investigation could have substantiated the appellant’s claims. In my view, the learned magistrate was correct in not allowing the appellant to engage in a wide-sweeping enquiry.
As to the events of the 10th July, the magistrate ruled that the appellant could not cross examine about them as they were not relevant. In my view, the magistrate was in error. The conduct of Harbour on the 10th July and his reasons for making a report and not confronting the appellant with his observations, are matters which may be relevant to the issue of whether Harbour in some way or another, discriminated unfairly against the appellant. In my view, the appellant should have been permitted to cross examine Harbour about the events of the 10th July and his motives and reasons for reporting his observations to the appellant’s senior officer.
The appellant complains that the magistrate refused to allow the appellant to have Constable Westmacott produce and refer to his notes. Constable Westmacott is a senior investigator for the Authority. He received the original complaint and he was given the task of investigating the complaint. Westmacott interviewed the appellant. Westmacott interviewed various police officers. He deposed that he found no independent evidence to support the allegations of the appellant. When he was cross examined, the witness was unable to remember details of interviews he had conducted in investigating the matter. The magistrate ruled that the appellant could not see Westmacott’s notes. Although he did not formally do so, the appellant was calling for the notes and was attempting to invite Westmacott to seek leave to look at his notes to refresh his memory. The appellant is not a trained lawyer and the magistrate did not assist him in his attempt to cross examine Westmacott about his notes. Westmacott should have been invited to refer to his notes to refresh his memory, or alternatively, the appellant could have called for the notes and inspected them. If there was relevant material in the notes, he could have cross examined by referring Westmacott to the notes. In my view, the appellant was entitled to inspect Mr Westmacott’s notes and he should have been assisted by the magistrate in the manner in which he could cross examine using the notes. The failure to allow the appellant this opportunity may have deprived him of a line of cross examination which may have assisted his case.
The appellant sought to call witnesses on a number of issues :
1.      the general behaviour of the police;
2.      language and restriction of freedom of speech;
3.      the appellant’s independence;
4.      the understanding of racial harassment within the police force;
5.      issues about the appellant’s time sheets;
6.      matters relating to when police officers are on duty and when they are off duty and the requirements of wearing a uniform or part of a uniform at those times.
The magistrate refused to allow the appellant to call witnesses on these topics. He indicated to the appellant that he did not consider that any of the topics were relevant.
I agree with the ruling of the magistrate in respect of subject matters 1, 2 and 4. The appellant was attempting to embark on a general enquiry about attitudes within the police force. It is difficult to understand how such an enquiry would have any relevance to the events in this case.
As to the appellant’s independence, I have difficulty in understanding how that may be relevant unless it can be established that Harbour was aware of the appellant’s reputation as an independent person and in some way, was influenced in preparing his report by that belief. There may have been some slight relevance in topics 5 and 6 but I do not consider that the magistrate was in error in refusing to hear evidence.
For the reasons I have given, I consider that the appellant has made out part of his complaint on ground H.

Conclusion

I would allow the appeal and remit the matter back for a re-hearing before the Disciplinary Tribunal.

[i] Jowits Dictionary of English Law (2nd Edition)

[ii] (1987) 39 D.L.R. (4) 676

[iii] (1986) 29 D.L.R. (4) 557

[iv] (1999) 204 LSJS 449

[v] (1985) 157 CLR 523

[vi] (1986) 43 SASR 149 at 158

[vii] (1971-72) 2 SASR 529 at 561

[viii] (1950) SASR 289 at 292

[2000] SADC 114

8 September 2000