R v Ferri - [2002] SASC 217

R v FERRI
[2002] SASC 217
Criminal (Ruling)

OLSSON AJ. In this matter the defence issued subpoenas, directed both to the Commissioner of Police and the Police Complaints Authority, requiring production of all records, notes, statements and files in their possession in relation to all complaints and investigations regarding the conduct and behaviour, whether substantiated or not, of both Constables Kitto and Axon, who are Crown witnesses.
The Commissioner and Constable Kitto appeared by counsel, on the return of the subpoenas, as did the Police Complaints Authority, in person.
The Court was informed that no relevant records are held in relation to Constable Axon.
However, records were produced in respect of some 13 separate complaints related to Constable Kitto, although it must be said that, in all but two or three instances, the complaint had been directed at two or more officers said to have been acting in concert.
I duly reviewed all of those files.
In my view, four of them are, generically, quite irrelevant to any potential issue in these proceedings. Although Constable Kitto, an officer of almost 20 years service, is named, in reality, the complaints concern either the Police operational system, as such, or raise what are essentially legal issues. Three of these were effectively dismissed and one – related to a closure of War Memorial Drive for a special event and a refusal to permit persons vehicular access to premises due to the closure – was resolved by conciliation.
A further seven were, in substance, dismissed – in most instances, utilising the standard jargon of the Police Complaints Authority to the effect that the likelihood of there being shown any substantial misconduct or other conduct warranting disciplinary action, did not justify further examination or committal of resources beyond what had already taken place. A perusal of the pertinent files readily reveals the validity of that assessment in each instance.
The remaining two files relate to what I would regard as complaints which, on the face of them, were trivial. One was actually withdrawn, after the complainant admitted abusing the police concerned. It related to the attendance of four police officers at the Rio Night Club, as a result of a disturbance and the consequent eviction, inter alia, of the complainant, who had been consuming alcohol.
The other concerned an incident when an aggressive motorist made excessive use of his warning device in relation to what proved to be Constable Kitto and one other police officer on plainclothes bicycle patrol. It was resolved by conciliation.
Objection was taken to the disclosure of the files in question to the defence, on the basis that the test established by the present s 48(7)(c) of the Police (Complaints and Disciplinary Proceedings) Act 1985 had not been satisfied. I upheld that objection and indicated that I would publish reasons at a later date. I now do so.
The relevant portion of s 48, in its present form, was enacted in 2000, subsequently to the events which were the subject…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ferri

Details

AGLC: R v Ferri [2002] SASC 217
Case: [2002] SASC 217
Decision Date: 8 July 2002

CaseChat Overview and Summary

In the case of R v Ferri, the defence sought to subpoena the Commissioner of Police and the Police Complaints Authority for production of records related to complaints against Constables Kitto and Axon, who were Crown witnesses. The Police Complaints Authority provided records for 13 complaints related to Constable Kitto, but none regarding Constable Axon. The court reviewed the files and found that only two complaints were substantive enough to warrant consideration, while the rest were either dismissed or resolved through conciliation. The court was required to determine whether the defence was entitled to access these records under s 48(7)(c) of the Police (Complaints and Disciplinary Proceedings) Act 1985, which requires special reasons and a finding that the interests of justice cannot be adequately served without disclosure.

The court found that the defence's subpoenas amounted to a fishing expedition and did not meet the threshold for disclosure under the Act. The court noted that the legislation was intended to prevent defence counsel from using subpoenas to search for discreditable information in Police Complaints Authority files to attack police testimony in criminal trials. The court held that the defence's desire to trawl through the disciplinary records to attack Constable Kitto's credibility was a highly prejudicial strategy that would be unfair to him and contrary to the policy of the legislation. The court concluded that the material sought did not fit the description of evidence that could demonstrate a relevant propensity and would not serve the interests of justice to release details of complaints that were found to be of no substance or trivial.

The court declined to make an order for disclosure of the relevant files to the defence. The court held that the defence's attempt to access the records was not justified by special reasons and that the interests of justice could be adequately served without disclosure. The court found that the defence's strategy was akin to throwing a lot of mud in anticipation that some of it might stick, and that it would be grossly unfair to release details of complaints that were properly rejected by the Police Complaints Authority. The court's decision highlights the importance of protecting the confidentiality of police complaints records and preventing the use of such records for improper purposes in criminal trials.

Orders