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

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

PRIOR, MULLIGHAN AND NYLAND JJ

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) 154 CLR
404; Carter v Hayes (1994) 61 SASR 451; Maddison v Goldrich [1976] 1 NSWLR
651; National Employer's Mutual General Association Ltd v Waind [1978] 1 NSWLR
372; Hunt v Judge Russell (1995) 63 SASR 402; Sankey v Whitlam & Others
(1978) 142 CLR 1; Mraz v The Queen (1955) 93 CLR 493, applied. R v Saleam
(1989) 16 NSWLR 14; R v Busby (1982) 75 CrAppR 79; Knight v Jones, ex parte Jones [1981] QdR 98; R v Harmer (1985) 28 ACrimR 35; R v Edwards [1992] CrimLR
549; Rogers v Home Secretary [1973] AC 388; Conway v Rimmer [1968] AC 910; Zarro v Australian Securities Commission (1992) 36 FCR 40; R v Chief Constable of West Midlands Police, ex parte Wiley [1994] 3 All ER 420; Bunning v Cross
(1978) 141 CLR 54; Carr v The Queen (1988) 165 CLR 314; McKinney v The Queen
(1991) 171 CLR 468, discussed.

ADELAIDE, 25 October 1996 (hearing), 3 April 1997 (decision)

#DATE 3:4:1997

#ADD 28:4:1997

Appellant Terry Ian Polley:

Counsel: Mr Wj Wells QC with Mr J Lister

Solicitors: Jon Lister

Respondent R:

Counsel: Ms W Abraham

Solicitors: DPP (SA)

Order: appeal allowed.

PRIOR J

1. The appellant was first arraigned in the District Court in April 1994. He was charged on information with three counts alleging possession of cocaine, methylamphetamine and cannabis. As to the cocaine and cannabis, the allegation was that on 8 November 1993 at Cumberland Park, he was in possession of those drugs for the purpose of sale. The methylamphetamine charge was a charge of simple possession: ss32(1)(e) and 31Controlled Substances Act, 1984. On 8 August 1994 a r9 notice was filed, in which the appellant sought an order excluding all evidence of the finding of illegal drugs on the ground that the search of the appellant was unlawful and that the evidence obtained thereby should be excluded as a matter of judicial discretion.

2. On 9 November, a subpoena was issued to the Police Complaints Authority, requiring the Authority to produce, "all written or electronically stored records of any complaint made by any person in respect of behaviour while on duty" by two named police officers. The officers named were Constables Pearce and Walker-Roberts. The Authority challenged the subpoena, apart from disclosing a complaint made by the appellant's solicitor on 9 December 1993. That complaint was with respect to the occasion the subject of the charges then before the court. The other disclosure was objected to on the ground that the subpoena was fishing and an abuse of the processes of the court. It was also claimed that disclosure of any other material would be extremely detrimental to the effective functioning of the Authority.

3. The appellant's r9 notice was dealt with as a preliminary issue pursuant to s285a of the Criminal Law Consolidation Act, 1935. A judge of the District Court heard the matter in November 1994.

4. He directed that all records held by the Authority should be produced to him so that he might determine whether the material had evidentiary value. The judge described the records produced as relating to a number of complaints made against one or other of the officers named over about the past six years. They consisted "almost entirely of memoranda and correspondence generated by the Authority. Views in relation to complaints are, in some cases, recorded. In other cases complaints are withdrawn".

5. The judge said that he was unable to see how any of the material could be tendered to a court. His Honour described it as "all hearsay". He also said that he regarded the material as "irrelevant to the present case although that is harder to determine". His Honour said that though the material was not admissible in itself as evidence of any fact in issue in the case then before him, he could not exclude the possibility that it might give rise to some topic for cross-examination of those officers in the proceedings then before the court. His Honour said that conceivably, the material "might raise questions of credit". His Honour said that in his opinion, those questions "could only be on matters collateral to and so far removed from the issues in (the) case that any answer given by either of the officers would be an end of the matter and would not be a proper subject for conflicting or rebuttal evidence".

6. His Honour referred to the fact that he had been told by counsel that counsel believed that the material "may suggest" that the officers behaved in "an aggressive, rude manner" on other occasions, it being alleged that that was their behaviour on this. As to this, His Honour said that any indication of behaviour on other occasions might reflect discredit on the officers but it did not seem to him to be relevant to the case against the accused. His Honour expressed the opinion that whether or not the officers were rude or aggressive on other occasions would not assist the inquiry then before him as to whether the drugs said to have been found in the appellant's car were in his possession.

7. 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.

8. Further submissions were taken. Three days later the judge issued a second ruling. This was on the question of public interest immunity. His Honour said he adhered to his original ruling that there was no material that he had seen which he regarded as being evidentiary material within the meaning of the District Court Act, 1991, but in case he was wrong and that some of the material was evidentiary material, he would rule on the question of public interest immunity. His Honour spoke of there being, "a not particularly prima facie case for a public interest immunity". However, His Honour upheld the claim for public interest immunity. In doing so, the judge had regard to what he thought to be the lack of any significant use which could be made of the documents by the appellant during the course of his trial.

9. The trial did not proceed immediately. The appellant instituted proceedings in this Court seeking a judicial review of the judge's rulings. The proceedings in this Court were adjourned. The matter went back before the same judge on 17 July 1995. By then, Perry J had published reasons in Hunt v Russell . In that case, a subpoena addressed to the Commissioner of Police was set aside, one addressed to the Police Complaints Authority was not. The District Court judge heard argument and first indicated that he thought the subpoena was bad on the grounds that it was fishing. However, having regard to the judgment of Perry J in Hunt v Russell, he dismissed the objection that the subpoena was fishing. His Honour could see no relevant distinction between the wording of the summons before Perry J and that in the summons before him. His Honour's conclusion was that none of the documents produced by the Police Complaints Authority were to be disclosed to the applicant. Two days later, the matter was not proceeded with immediately before that judge. He was about to go on leave. The prosecution conceded that if the matter were to proceed before some other judge the prosecution would accept the judge's ruling. However, counsel conceded that the appellant could not be bound by those rulings if he wished to re-argue the matter before another judge. Judicial review proceedings were dismissed in this Court in August 1995: see Polley v Bright .

10. The matter came before another judge of the District Court in November 1995. The second judge indicated that he was not going to interfere with the decisions made by the first judge. The hearing of the r9 notice then proceeded. At the end of it, the second judge ruled that the evidence objected to was admissible. He made a positive credibility finding as to evidence given by a third police officer, Sergeant Williams. In his rulings, the second judge spoke of having had reservations after the evidence of Constable Pearce was given. He then spoke of the second police officer, Walker-Roberts, confirming Pearce's history of the events which had happened, to some extent. Then, he referred to the evidence from the third police officer, Sergeant Williams. As to him, the second judge said:- "He impressed me with the manner of his evidence. He outlined the events that occurred, and he outlined how Pearce approached the car and he was in a kneeling position to speak with Polley and then he returned. He outlined the very strong smell of cannabis and that by that time Polley was outside of the car and the discussion that occurred between the three officers and that it was a reasonable basis upon which to search the car.

Not only was he advised that there was a strong smell, but they felt that the appearance of Mr Polley was unusual as though perhaps he had been involved himself in drugs and also the lesser ground of seeing him leave the clubroom premises with a plastic bag. He said he heard Pearce when he went back to Polley. He believed he had reasonable cause to suspect that there was a prohibited substance in his car and proposed to search it. At this stage, he said that was said to Polley and then the search occurred.

As I say, I know that there are officers' notes and books which were produced and particularly Mr Lister has commented on the new notes that were in Sergeant Williams' book that reflect, so he says, badly in regard to the outline of his evidence. I do not accept that. That book does not assist me. I simply accept his evidence and the vital thing which I think I am obliged to accept is that Mr Polley was advised that there was reasonable cause to suspect that there was a prohibited substance in the vehicle and that subsequently the search was then legal."

11. An application to sever the counts was refused. The appellant pleaded guilty to possessing methylamphetamine. The trial proceeded on the other two counts. The appellant was found not guilty on one count, guilty on the other.

12. In this appeal, it is complained that the second judge erred. First, it is said His Honour erred in adopting and enforcing the rulings of the first judge in November 1994 and July 1995. Alternatively, it was said that the first judge erred in ruling in July 1995 that files produced by the Authority should not be disclosed to the defence in virtue of the Authority's claim to public interest immunity against disclosure. It was also complained that the second judge erred in the course of the voir dire hearing before him in prohibiting a police witness being cross-examined as to credit on the topic of complaints against the police by members of the public about previous misconduct by them in circumstances where the appellant alleged misconduct towards him, and the falsifying of evidence against him. It was also said that the second judge erred in finding Pearce had reasonable cause to suspect the commission of a drug offence so as to justify a search of the appellant's car.

13. The voir dire hearing before the second judge was one in which it could not be said that the parties were bound by the rulings of the first judge.

14. The preliminary issue for the trial judge was whether a discretion should be exercised to exclude evidence on the ground advanced, namely that the search of the appellant's vehicle was unlawful. A search was lawful if there was reasonable cause to suspect that there was in the vehicle an object possession of which constituted an offence: s68(1)(a)ii, Summary Offences Act, 1953.

15. Before the second judge, the appellant's case was that the appellant's car was stopped by police under the pretext of executing a warrant of commitment for non-payment of a fine. Before this Court it was claimed that the appellant's car was stopped by the police with an intention of searching it, the search occurring in a deliberate and calculated disregard of the pre-conditions for exercising the statutory power of search without a warrant. The search conducted was said to be unlawful, the action of police being, "calculated, deliberate, indeed malicious, highly aggressive, high-handed and utterly contemptuous of the appellant as a person and his rights as a citizen". The appellant's case was that the police had no reason to search his car other than that he was a member of a motorcycle group and that he was subjected to harassment by the three officers. It was not in dispute before the second judge that on the occasion the subject of the charges there was an outstanding warrant for commitment issued pursuant to s61 of the Criminal Law(Sentencing) Act, 1988. The police officers were aware of this. They were not possessed of it.

16. The appellant's case was that the officers had no intention of arresting the appellant with respect to that warrant. The Criminal Law(Sentencing) Act is silent about any obligation upon a person executing such a warrant being possessed of it. Section 64 requires a person executing such a warrant to issue a receipt should the person against whom the warrant has been issued pay the amount in respect of which the warrant was issued, together with the costs of issuing and executing the warrant, thus satisfying the warrant and avoiding the commitment to gaol authorised by the warrant. The form of warrant prescribed by the Criminal Law (Sentencing) Regulations, 1988 is addressed to the Commissioner of Police and each member of the Police Force. Nothing in the Act or Regulations requires possession of the warrant by the officer executing it.

17. 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.

18. The appellant claims that the documents produced by the Police Complaints Authority were very relevant to the voir dire hearing. It was put that whilst Pearce and his credibility were saved by the acceptance of Williams' evidence, perhaps the matter would have been different had the appellant had access to the files. It is the appellant's case that he was entitled to look at the files produced to the first judge, "for the purpose of pursuing the case ... that these 'police officers were lying and they were lying because they were not prepared to own up to what had, in fact, happened which was the way they conducted themselves'".

19. Counsel conceded before us that they necessarily did not know what was in the files. The first judge had looked through them and made some observations as to their contents. It was put before us that it was possible that the files contained complaints made by members of the public about the way they had been treated by Pearce and Walker-Roberts, which would provide a line of inquiry for the appellant for the purpose of calling evidence about a pattern of conduct which would reveal the police officers "did not pay attention to their statutory obligations". The voir dire before the second judge was said to have miscarried because of that judge's refusal to review again the subpoena to the Authority and by that, preventing the appellant to have the opportunity to secure from the files some evidence, "to show a pattern of conduct by these police officers consistent with a readiness on their part to stop and search without cause". Counsel conceded that the files could not be used in the trial. Counsel insisted that if there were complaints made by other members of the public in relation to the conduct of these two police officers, that would provide material for cross-examination.

20. It was put that the appellant was entitled to look at the material on the files. If there was material suggesting that the two officers conducted themselves in this way on other occasions their credit could be attacked by that evidence. The material would support the allegation that the police were lying as to what they said occurred and what their intentions were on the occasion the subject of the charges.

21. In essence, the appellant's case, in the r9 notice, was that he believed he was subjected to illegal attention and little respect from police officers completely ignoring statutory and common law obligations. Counsel conceded that they would not be entitled to ask the police officers whether they were aware of complaints being made against them as much as they could properly be asked, after the fact of a complaint was discovered by the appellant's purview of the Authority's file, whether on other occasions they had behaved in a similar way. It was put that the appellant would be entitled to lead evidence of a pattern of conduct demonstrating a propensity to search whether it was lawful or not. The appellant should have been permitted to establish against the police, "a strong inference that because they had acted according to this pattern of conduct, the likelihood is that they acted in that way here". Reliance was placed upon Martin v Osborne . The appellant claimed that in an effort to establish that the police officers acted unlawfully on this occasion, evidence of behaviour on other occasions "would raise the circumstantial inference that this is the way these officers act, this is the way they act when they undertake a search". The material from the Police Complaints Authority was therefore a means whereby the appellant might be able to establish or adduce, from a proper source, evidence which tended to "show that these two police officers, when they search or when they exercise statutory powers, disregard the conditions that are attached to them".

22. In his ruling, the second judge has made plain that he accepted the evidence of Sergeant Williams, in particular. That evidence was consistent with a lawful purpose in the stopping of the appellant and the lawfulness of the search of the appellant's car. It was for the appellant to establish that the search of his vehicle was unlawful or improper if there was a proper basis for the exercise of a judicial discretion to exclude the evidence upon the ground taken in the r9 notice. It is inherent in the exercise of a discretion to exclude evidence on the grounds of unlawful or improper police conduct, that the courts are concerned with society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired. A major policy consideration in the area of a discretion to exclude evidence on these grounds is that courts should not condone high-handed, arbitrary or unlawful breaches of police power .

23. The second judge's findings can be set aside by this Court if there was, as a result of the procedural rulings he made, the wrongful exclusion of evidence that was relevant and admissible to the question of the behaviour alleged against the officers involved in the search of the appellant's vehicle. The second judge did not permit any cross-examination of police officers about their knowledge of the nature of any complaints made against them to the Police Complaints Authority. He was correct in doing so. The fact of a complaint could not prove the truth of that complaint. The truth of some complaints might have been relevant to the issue before the judge on the voir dire. The discretion to exclude could only be considered if some unlawful or improper conduct by police on the occasion of the charges was made out. Evidence of previous similar behaviour might support that which the appellant sought to establish on the voir dire. The appellant's suspicion or belief that there were other occasions when these two officers behaved with scant regard for the law or the rights of others would be insufficient. The appellant's evidence before the second judge alleged a different set of circumstances in his encounter with the police than the version that the police deposed to. Any previous proven misconduct of these police officers might be a matter that could be the subject of evidence either directly from a witness or in cross-examination of the police officers. This is so if some matter arises that is not purely or "entirely collateral" to the issue then before the judge on the voir dire .

24. An opponent's witness may be discredited in a number of ways. Challenging a person's lack of knowledge or capacity, or any inconsistent statements are obvious enough examples. Also, a witness' previous conviction, discreditable conduct, bias, corruption or lack of veracity are relevant and can be pursued. There are some restrictions - If a matter is relevant only to credit, the general rule is that evidence may not be adduced to rebut a witness' denial on something "entirely collateral"

- Where a person's credit is relevant to an issue, that credit may be impugned, not only by cross-examination but by direct evidence.

25. A number of reported cases seem particularly relevant: Knight v Jones; exparte Jones , R v Busby , R v Harmer and R v Edwards .

26. In Knight v Jones, a majority held admissible evidence that the same police officer had unlawfully and without cause arrested other persons on two occasions within six months of the matter then before the court. That evidence was held to be relevant and admissible since it cast a doubt on the lawfulness of the defendant's arrest of the accused on a charge of failing to provide a specimen of breath for analysis. The majority of the Full Court acknowledged that the evidence would not show a system or scheme but a propensity or disposition on the part of the particular police officer to arrest persons unlawfully . The dissenting view was that the evidence of behaviour on other occasions was "no more probative than mere propensity or disposition evidence of a type which is ordinarily not admissible" . Macrossan J said:- "While conceding that it is necessary to be scrupulously concerned for the rights of an accused person, it is equally necessary to be on guard against incautiously expanding the length and scope of trials to permit collateral issues to be debated at equal length with the facts at issue under a mistaken assumption that the collateral matters tend to the proof or disproof of those facts at issue."

27. In R v Busby, it was suggested that a police witness for the prosecution had fabricated an oral confession and threatened a potential witness for the defence so as to prevent him from testifying. Both allegations were denied. The defence sought to call the person threatened to rebut the denial of the threat. The Court of Appeal held that the trial judge erred in refusing to allow the man to be called.

28. In R v Harmer, the accused was charged with assaulting police officers. His defence was that he had been attempting to evade the assault of police officers upon him. The Full Court held that the trial judge erred in rejecting evidence from a witness that he had been assaulted by the same police officers in a similar manner on another occasion. The other assault was one occurring some three or four months before, using a not dissimilar technique in analogous circumstances. Upon that ground the Full Court held the evidence was both relevant and admissible .

29. In R v Edwards, the Court of Appeal held that where a police officer was alleged to have fabricated an admission against the accused, he could properly be cross-examined to make the jury aware of the fact that his evidence of an admission in a previous case was demonstrably disbelieved. The court also had to consider how far it was proper to cross-examine a police witness about previous improprieties to the effect that there was a systematic perversion of justice, that some officers involved in the case had been the subject of criminal or disciplinary processes in relation to the falsification of evidence and that acquittals had occurred in cases where the witnesses had given evidence. The court said cross-examination on the first matter was not permissible. It was too remote. It accepted that evidence was admissible with respect to proceedings where an adverse finding had resulted. If there was no reasonable explanation for an acquittal other than a determination that the witness must have been lying the matter could be pursued.

30. After acknowledging that cross-examination was proper "as to any relevant criminal offences or disciplinary charges found proved against" the police officers, Lord Lane CJ considered whether questions should be permitted about complaints by members of the public about a police officer's behaviour on other occasions not yet adjudicated upon. Next he referred to questions about discreditable conduct by other officers in the same squad as the police officer and then cases in which the witness had given evidence which had resulted in an acquittal. As to these three situations, Lord Lane CJ said "This is an area where it is impossible and would be unwise to lay down hard and fast rules as to how the court should exercise its discretion. The objective must be to present to the jury as far as possible a fair, balanced picture of the witnesses' reliability, bearing in mind on the one hand the importance of eliciting facts which may show, if it be the case, that the police officer is not the truthful person he represents himself to be, but bearing in mind on the other hand the fact that a multiplicity of complaints may indicate no more than what was described before us as the 'band wagon' effect.

We do not consider that it would have been proper to suggest to the officer in the present case that he had committed perjury or any other criminal offence by putting to him that he had been charged but not yet tried. Nor do we think that complaints to the Police Complaints Authority which have not been adjudicated upon would properly be the subject of cross-examination. It would not be proper to direct questions to an officer about allegedly discreditable conduct of other officers, whether or not they happened to be serving in the same squad."

31. Courts should be ever wary of police corruption and take a liberal view of sufficient relevance in permitting counsel to cross-examine and tender evidence of possible corruption. The approach taken in these cases is consistent with that concern but also with a reluctance to allow matters to go as far as was sought in this case.

32. There was an affidavit from the Authority which said that no adverse assessment had been made against either officer. Another affidavit from the Authority asserted that it was not possessed of any records relating to any complaint against the two officers "strikingly similar to the allegations made by (the appellant)". The appellant's complaint of 9 December 1993 alleged insulting and abusive language towards the appellant by "the two junior ranked officers", but spoke of the sergeant accompanying them being "generally civil". The first judge's view was that he could not identify anything, on the material produced to him, that was not collateral. The appellant's counsel claimed to be entitled to look at the material and consider calling the then identified author of any complaint in an effort to prove the truth of such a complaint.

33. Against all that has so far occurred and in light of the authorities, I think it needs now be said that the subpoena, as expressed, was fishing and should have been struck out. It was not enough to call for all "records of any complaint made by any person in respect of behaviour" while the two officers were on duty. Complaints of stopping and searching on other occasions could have been called for, certainly if confined to a period around November 1993. It was not "on the cards" that all complaints against the officers and held by the Authority would be of evidentiary value in the proceedings . There was no reason to suppose that all the material actually sought was capable of being used as evidence on the voir dire . The fact that the appellant was unable to assert that the material sought contained relevant material because he just did not know, is a matter to be taken into account in determining whether the purpose of the subpoena was "purely fishing" , but the purposes identified at various stages of these proceedings made more specific what was sought. The subpoena should have been specific in the first place and consistent with what the authorities consider should be discoverable and disclosed.

34. In R v Robertson , a summons was set aside as fishing because it went beyond requiring production of documents relevant to the question whether the evidence offered by the prosecution at committal was sufficient to put an accused upon trial. O'Leary J identified the question before him as being whether a summons directed towards finding out whether there was any material in the possession of the Commissioner of Police that may have supported the accused's defence was of a fishing nature. His Honour held that it was. In his reasons, he said:- "...'Fishing', whether used as a descriptive of discovery or of a subpoena, has been variously described. In Associate Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd , Owen J said that it meant 'that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not'. In Maddison v Goldrick , Samuels JA spoke of a fishing expedition as one 'designed to catch at large what material the statements of witnesses might yield'. That seems to me to be essentially what the accused here is endeavouring to achieve by means of the summons to witness. ..."

35. As Lord Wilberforce pointed out in Burmah Oil Company Ltd v Bank of England , it is not desirable that courts should assume the task of inspecting documents except in rare instances where a strong positive case was made out, certainly not upon a bare unsupported assertion by a party seeking production that something to help him may be found, or upon some unsupported or speculative hunch of its own. A strong, positive case is not made out by a subpoena failing to specify a sufficient connection between any other behaviour and that presently questioned. The length and cost of trials must not be increased by indiscriminate and undisciplined preparation and production of documents .

36. The subpoena, as issued here, was plainly fishing. It could have been more specific. The courts must be wary of endorsing as appropriate a subpoena to a complaints authority with respect to any complaint made against a police officer by any person at any time, whilst insisting that there be proper disclosure to a person of any material that could properly touch upon issues arising in a particular case. A subpoena should not be required as much as the prosecution be expected to disclose some things to the defence in any event. Particular examples are identified in Edwards. The prosecution should disclose any adverse disciplinary finding against a police officer whose credit is challenged. The authorities do not support the proposition that any previous misbehaviour is relevant and admissible in a voir dire hearing of the kind sought to be pursued in this case. Authorities do support the admissibility of evidence properly proving or tending to prove similar unlawful or inappropriate behaviour at about the same time.

37. Given what has occurred, it is now appropriate for this Court to review the material actually produced against the issues sought to be raised and determine whether or not any of the material produced is material that could and should have been disclosed and whether against what has happened, there is cause now to interfere with the conviction. Doing this, one assumes that the subpoena was not fishing, but rejects the first judge's view that a claim for public interest immunity was made out.

38. 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".

39. The proceedings before the second judge resulted in a positive credibility finding as to the version of events deposed to by Sergeant Williams. That serves to establish that even if there were occasions in the past where the other two police officers may have behaved in a less than exemplary fashion or rudely, they had acted lawfully on this occasion. There is nothing in the point advanced before us as to the alleged inconsistency between Sergeant Williams' notes and his evidence. The trial judge was entitled to do as he did and accept his evidence and explanation for the alleged inconsistency between his evidence and his notes. The material withheld could hardly shake the favourable finding as to Williams. Whatever errors of judgment Pearce may have made on any other occasion, he was believed as to having a reasonable cause to suspect on this occasion. Indeed, Williams' evidence was that Pearce actually had him concur with him as to having sufficient cause to search against what had so far happened. In Edwards the issue was whether an interview was fabricated. The attesting officer's behaviour on other occasions with respect to other admissions was plainly relevant to the issue of the truth of a statement said to have been fabricated by two other officers. That is not this case.

40. In my view this appeal should fail. The subpoena was fishing. No miscarriage of justice has occurred from any failure to disclose any arguably discoverable material absent any complaint by the appellant about Sergeant Williams and the acceptance of his version of events by the second judge.

MULLIGHAN J

41. The factual background to the issues to be decided on this appeal are set out in the reasons for judgment of Prior J.

42. I shall refer to the two learned judges of the District Court involved in this matter as the first Judge and the trial Judge.

43. The first Judge declined inspection of the files by the appellant and the trial Judge "adopted" that decision. At the commencement of the hearing on 6th November 1995 of the application made by the R9 notice, Mr Lister, who appeared as counsel for the appellant, drew attention to the 31 files and the subpoena and said that the trial Judge would have to look at the files and decide whether or not he reached the same conclusion as the first judge and whether Mr Lister could see them without hearing any argument. The trial Judge said that he would not, in any way, interfere with the decision of the first judge which would also be his decision. Later, during the course of cross-examination of Constable Pearce, he said that he thought he was bound by the ruling of the decision of the first Judge and he disallowed cross-examination about the files. The first ground of appeal is that the trial Judge erred in that approach.

44. I think this complaint is justified. The trial did not commence until 6th November 1995 when the hearing of the application to exclude the evidence began. The hearing and determination of any question relating to admissibility of evidence pursuant to s285a of the Criminal Law Consolidation Act 1935 is by the judge who is sitting to hear the case: Attorney-General's Reference (No 1 of 1988) (1988) 49 SASR 1 per King CJ at pp5-6. Consequently, it was for the trial Judge to conduct the trial, including the hearing of the application, according to law. It was for him to make decisions and rulings common to criminal trials, including what evidence was admissible and what evidence, if any, should be excluded in the exercise of discretion. In the course of discharging that responsibility he was obliged to apply the rules of evidence and procedure and to exercise discretions as they arose, in the context of issues which arose at the trial. He could not, in my view, merely adopt what had been decided by the first Judge on another occasion before the trial commenced. Even if the decision of the first Judge was correct, it could not be a final and binding decision. Issues could arise at the trial which could give relevance to evidentiary material which could not previously have been anticipated.

45. However, in order to determine if this error had any significance in the trial, it is necessary to consider whether the decision of the first Judge in refusing to permit the defence to inspect the files was wrong.

46. As a general rule an accused person in the criminal court is entitled to compel, by subpoena, the production to the Court of documents which have "evidentiary value": Alister v The Queen (1984) 154 CLR 404 per Brennan J at pp450-451 and Carter v Hayes (1994) 61 SASR 451. Indeed, in the former case, Brennan J at p451 described this right as "... so basic and important an aspect of our criminal procedure that a trial in which the right is denied cannot be, in my opinion, a trial according to law". In the latter case King CJ expressed the view that "evidentiary value" is synonymous with documents being used for a "legitimate forensic purpose", an expression used in some other cases, eg R v Saleam (1989) 16 NSWLR 14, and went on to say, at p453: "A document may have evidential value, in my opinion, not only because it is admissible in evidence, but also, even if it is not admissible of itself, because it provides material of value for cross-examination (Maddison v Goldrich [1976] 1 NSWLR 651) or discloses 'information which may be established in some other admissible form': R v Saleam (supra)."

47. Once an accused person avails himself or herself of this right and the subpoena is issued and served, the procedure in dealing with the subpoena and the documents referred to in the subpoena is as discussed by Moffit P in National Employer's Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at p381 [check] and by Perry J in Hunt v Judge Russell (1995) 63 SASR 402. The subpoena may be set aside if it is vexatious, offensive or otherwise an abuse of the process of the Court which includes if it is fishing. Any objection to production on the ground of public interest immunity, or for some other privilege or immunity must be resolved. The documents are produced to the Court if they are relevant to the proceedings in the sense discussed in Carter v Hayes (supra) unless the subpoena is set aside. The Court then decides whether the party issuing the subpoena, or both, or all, parties should be at liberty to inspect the documents.

48. This procedure is simple to describe but it is not always easy to apply. Issues may arise as to whether the subpoena is too wide, is fishing, compliance would be oppressive, the documents are embraced by any immunity or privilege and when, if at all, they can or should be inspected by the judge to resolve any issue. The inability of an accused person to describe with precision in the subpoena the document sought may be significant and could be indicative of a fishing expedition. Common sense must prevail and the Judge may inspect the documents to decide any issue which arises.

49. Before considering how the procedure was applied by the first Judge and whether his decisions were justified, it is appropriate to acknowledge that the issues fell to be decided within criminal proceedings as opposed to civil proceedings. In Sankey v Whitlam & Others (1978) 142 CLR 1, per Gibbs ACJ at p42 and Alister v The Queen (supra) per Gibbs CJ at p414 and Brennan J at p456, this distinction was acknowledged and it was accepted that usually in criminal proceedings if documents are necessary to support the case of an accused person whose liberty is at stake, they are disclosed.

50. In all, the first Judge considered the matter on three occasions. The procedure followed was that Mr Boyce, appointed as the Police Complaints Authority pursuant to s5 of the Police (Complaints and DisciplinaryProceedings) Act 1985, answered the subpoena. He brought the documents to Court and, with the exception of one document which was the complaint made by the appellant about the two police officers as to the alleged conduct on the occasion which is the subject of the charges against the appellant, opposed the application of the appellant to inspect them. In an affidavit sworn by Mr Boyce, he submitted that the subpoena was fishing and was an abuse of the process of the Court and claimed public interest immunity.

51. On this occasion the first Judge heard argument and inspected the documents which were then produced in answer to the subpoena. He did not consider the objection to the subpoena on the ground that it was fishing. He concluded that they could not be regarded as "evidentiary material" and therefore should not be disclosed to the appellant. That is an expression to be found in s25 of the District Court Act 1991 which provides that the Court has power to issue a summons directing a person to produce evidentiary material. His reasons for that decision reveal that he equated evidentiary material with material having evidentiary value in the limited sense of being admissible at the trial. He described the documents as follows: "The records relate to a number of complaints made against one or other of the officers named over about the last six years. The records consist almost entirely of memoranda and correspondence generated by the Authority. Views in relation to complaints are, in some cases, recorded. In other cases, complaints are withdrawn."

52. He expressed the view that the material was inadmissible because it was hearsay but it was possible that it could give rise to some topic for cross-examination and might raise questions of credit which could only be collateral and conflicting evidence in rebuttal would not be admissible.

53. The first Judge then proceeded to discuss the contentions of the appellant as to the relevance of this material. It is appropriate to mention these contentions. The appellant was at the relevant time a member of a particular motor cycle club which, he claimed, was the subject of harassment by the police. On the night in question he was stopped by the police officers with the intention of searching his motor vehicle without warrant and in a "deliberate and calculated disregard of the preconditions for exercising the statutory powers of search without a warrant and that these actions were unlawful, calculated, deliberate, indeed malicious, highly aggressive, high handed and utterly contemptuous of the appellant as a person and his rights as a citizen", to quote part of the submission of Mr Wells QC to us. It was the appellant's contention that evidence of the two police officers, or either of them, behaving in a similar manner on other occasions had testimonial value as well as value to a cross-examiner in an attack upon their credit.

54. The first Judge expressed the view that whether or not the two police officers were rude or aggressive on other occasions would not assist in the resolution of the issue as to whether the search of the appellant's vehicle was unlawful. As to the assertion of harassment, the first Judge acknowledged that repeated victimisation of the appellant and other members of the club could provide a basis for "ill-will and lack of candour in the present case". He said that he was a little troubled by this submission. He found from one file that there was a compliant against one of the police officers by one member of the same motor cycle club, but he could not say whether there had been complaints by any other member of the club. He said that if the other complaints had been made by other members of the club, he would expect the appellant to know of them and he offered to reconsider the material in the files if names were supplied to him. In further describing documents contained in files, the first Judge referred to documents which were not "generated" by either of the police officers and consequently, he said, could not be used to confront them or to refresh their memory. He went on to say: "They have no official status that might enable them to be tendered for any purpose, either in their own right or on calling their author."

55. He then referred to excerpts of court transcripts contained in the files and said that none of them appeared to be of direct or indirect relevance except in one case where there was transcript of the evidence of one of the police officers which "could have some remote relevance to credit" but was of no relevance to the issues in the present proceedings. Also he said that transcripts of interviews of one of the police officers by senior police officers could be relevant on the question of credit but were not of sufficient potential relevance to justify permitting the appellant to see them.

56. It may be seen that, having decided to inspect the files and having become aware of their contents, the first Judge misunderstood the test of evidentiary value or legitimate forensic purpose. He did not appreciate that the evidentiary value could be the disclosure of relevant information which could be established in some other, and admissible, form. He did not consider whether the material could put the appellant on inquiry of witnesses who could give admissible evidence, not about the fact of complaints having been made, but as to the subject matter of the complaints.

57. Also, the first Judge may not have appreciated the submission of the appellant. It was contended on his behalf that evidence of previous behaviour by the two police officers could show a pattern of conduct by them of a readiness on their part to stop and search without proper cause as the appellant alleged happened on the occasion in question. Further, the appellant contends that cross-examination of them to show previous occasions of such behaviour could show that they should not be believed because they were accustomed to behaving in the manner, it is said, they behaved towards the appellant.

58. It is not clear the extent to which these contentions were put to the first Judge but it may be seen from his reasons for his decision that he did not have regard to them and based his decision upon a narrow view of evidential value. Cases referred to by Prior J demonstrate that there was a legitimate forensic purpose much wider than that identified by the first Judge. It has long been recognised that, in appropriate circumstances, relevant propensity or disposition on the part of a witness may be proved by independent evidence if relevant to a fact in issue: see Phipson 14th ed
(1990) p265, para12-34, Cross on Evidence, Australian Edition para 19065 and Ligertwood, Australian Evidence 2nd ed p135, para 3.67. This rule has been applied in relation to police officers where evidence of this nature goes to a fact in issue, such as fabrication of a confession and threatening a witness (R v Busby (1982) 75 CrAppR 79), a previous occasion of unlawful arrest (Knight v Jones, ex parte Jones [1981] QdR 98), and assault by police on a previous occasion (R v Harmer (1985) 28 ACrimR 35). See also the discussion in Pattenden, Evidence of Previous Malpractice by Police Witness and R v Edwards [1992] CrimLR 549. In that case it was not doubted that previous instances of fabrication of a confession could be the subject of cross-examination.

59. The issue raised by the appellant at the trial was the illegality of the search of his motor vehicle by the two police officers. Evidence that they had behaved in a similar manner on previous occasions was relevant to that issue and, if denied, could be proved by independent evidence. Whilst the fact of complaints having been made against the police officers, or either of them, was not admissible per se, the subject matter of the complaints would be admissible, if relevant, and, as was observed by King CJ in Carter v Hayes (supra), the files could have disclosed information which may be established in some other admissible form. In my view, it was not necessary to show that the two police officers, or either of them, had on an earlier occasion behaved in a manner which was strikingly similar in the context of search and seizure such as would satisfy the test for admissibility of evidence of similar facts against an accused person. It was sufficient if there was evidence which could show that they, or either of them, had behaved in disregard, in a serious way, of preconditions for the exercise of statutory or common law powers regarding the rights or liberty of the subject. The first Judge erred in his approach to the assessment of the information contained in the files on this first occasion.

60. On the second occasion, further files which had been found were produced to the Court and the first Judge considered whether public interest immunity should preclude the appellant inspecting any of the files. He acknowledged that it was unnecessary to do so in view of his ruling about relevance, but decided to consider the matter because that ruling was to be challenged on an application to this Court for judicial review of his decision and he took the view that all matters should be decided before that application was made. He heard argument on the question of public interest immunity and concluded: "... that there is not a particularly strong prima facie case for a public interest immunity in these documents. It is an immunity which I think could readily be rebutted in the case of various sorts of documents that might potentially exist on a file, and the basis for rebutting it would be if, on inspection, I perceived any significant use that might be made of those documents in the defence of the accused. It is implicit in my earlier ruling that I did not see any such documents and, on that basis, when balancing the potential unfairness to the accused in not seeing those documents against the claim for public interest immunity, I uphold the claim for public interest immunity in respect of the documents as a class."

61. He went on to say that he would look at the further files which had been produced that morning and if the material contained in them was no different from what he had already seen, his ruling would stand. If not, he would seek further argument. It seems that he did not reach a different conclusion.

62. It would seem that the first Judge, at this stage, erred in two respects; firstly, in adopting his earlier ruling as to relevance which was too narrow and secondly in upholding the claim of public interest immunity on the basis that it applied to the files as a class and, in doing so, by the application of his view as to the relevance of the documents.

63. 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".

64. It seems that this is the material upon which the first Judge concluded that public interest immunity applied as a class.

65. There is a heavy burden on any authority which claims class immunity: Rogers v Home Secretary [1973] AC 388 per Lord Reid at p400 and Sankey v Whitlam (supra) per Stephen J at pp62-63. The test is whether withholding of the documents is really necessary for the proper functioning of the State or the public service: see Conway v Rimmer [1968] AC 910 where it was held that only documents relating to decision making at the very highest levels could lay claim to automatic class immunity. Usually such a claim is harder to justify in relation to the documents of the lower levels of government. Indeed, Lochhardt J in Zarro v Australian Securities Commission (1992) 36 FCR

40 at p46 expressed the view that the class doctrine is confined to rare cases of documents involving high government policy and decision-making.

66. In R v Chief Constable of West Midlands Police, ex parte Wiley [1994] 3 All ER 420, the House of Lords rejected the contention that documents of the Police Complaints Authority should not be produced on the basis of a class based public interest immunity: see Lord Woolf at p446.

67. In my view, the claim of public interest immunity with respect to the files could not be upheld merely on the basis of the class of the documents regardless of their contents.

68. On 17th July 1995 the matter came before the first Judge on the third occasion. The delay had been occasioned by an application for judicial review of the earlier decision refusing the appellant access to the files. That application was adjourned because the first Judge had not finally disposed of the matter having said he would keep it under review. On this occasion the first Judge heard argument as to whether the subpoena was fishing and held that it was not. He followed the decision of Perry J in Hunt v Judge Russell (supra). In that case the subpoena addressed to the Public Complaints Authority included: "(2) Statements involving any complaint alleged against [four named police officers]."

69. Here, the subpoena sought: "All written or electronically stored records of any complaint made by any person in respect of behaviour while on duty of Police Officers [Pearce or Roberts]."

70. Perry J concluded that any other complaint against the police officers could be relevant in the sense that it is "on the cards" (see Alister (supra) per Gibbs CJ at p414) that there may be within the subpoenaed material a record of matters of "evidentiary" value which may be relevant to the credit of the police officers: p412. Accordingly, he concluded that the subpoena should not be set aside on the ground that it was fishing. It is not necessary for present purposes to decide whether the subpoena is fishing. It has not been held to be so and has not been set aside on that ground. However, if it had been necessary to decide that matter on this appeal, I would have been inclined to the view that the conclusion and reasoning of Perry J is correct. As King CJ observed in Carter v Hayes (supra), it is well recognised that "a party's lack of knowledge of the existence or contents of the material sought is not of itself ... a valid objection to a subpoena"; p453: see also Waind's case (supra) at p382 and Alister's case (supra), per Brennan J at p451: "But the right to compulsory process cannot be dependant upon the party's ability to prove the existence and content of a document when the party has reasonable grounds to believe that a document exists and seeks to obtain it by subpoena. That would eviscerate the right and limit its enforcement to occasions when the party already has in his possession secondary evidence of the original document the production of which the subpoena is intended to secure."

71. Each case must be considered upon its own circumstances and in cases of this nature, it is undesirable to try and define for all purposes where the line has been cast.

72. The first Judge then went on to reconsider the claim of the Police Complaints Authority that the documents should not be produced on the ground of public interest immunity. This claim was supported by the two police officers. He concluded, correctly, in my view, that the secrecy provisions of s48 of the Police (Complaints and Disciplinary Proceedings) Act 1985 did not prevent disclosure of the files to the Court or to the appellant but upheld the claim of public interest immunity. On this occasion he rejected that claim on the ground of the documents as a class but upheld the claim on the ground of their contents.

73. 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."

74. The first Judge said that he undertook the balancing exercise and upheld the claim of public interest immunity because he found that there were no documents "of significant relevance to the case". In order to resolve this issue and to determine if there is a basis to uphold the claim, I inspected the files and reached the conclusion that on balance some of them should have been disclosed to the appellant before the voir dire hearing commenced. I must say that I have taken a very different view of the relevance and importance of the contents of some files than that taken by the first Judge. Having regard to the issues at the trial, the balancing exercise could only lead to a conclusion that it is appropriate to permit the appellant, and the prosecution, to inspect.

75. Whilst it is true that they do not disclose that either Constable Pearce or Constable Walker-Roberts illegally searched a motor vehicle on prior occasions they do contain many allegations of improper and illegal behaviour on the part of Constable Pearce. If these allegations are true, he has exercised other statutory and common law powers without justification and in blatant disregard of important rights and liberties of members of the public. I say nothing about whether those allegations are true. In his affidavit Mr Boyce deposed: "17. I have examined the register of complaints against police which is maintained by my office and am able to state that I am not in possession of any records relating to any complaint against either Senior Constable Pearce or Senior Constable Walker-Roberts which is striking similar to the allegations which were made by Mr Polley last year."

76. In the context of the issues at the trial that statement is misleading, although, no doubt, unintentionally so, because it does not reveal many alleged instances of behaviour by Constable Pearce which, if true, would be relevant to his credit and which are capable of proving that he had previously behaved in the manner which I have described.

77. It is not as if the relevant complaints against Constable Pearce have been dismissed or otherwise amounted to nothing. In some instances charges preferred by him against complainants have been dismissed by courts and his evidence not accepted. In other instances the Authority has determined not to proceed due to a lack of corroboration. In one file it is recorded that there have been 22 allegations of impropriety against him described as "man handling and/or incivility". Perusal of the files reveals that such a description is an under statement.

78. The complaints against police involving Walker-Roberts fall into a different category. There do not appear to be any allegations that he has behaved in a similar manner but only that he has been present on occasions when other police officers have behaved improperly and that he has supported their versions of events. Perhaps he did so truthfully. Nevertheless, some of these files should have been made available to the appellant for inspection. It seems to me that there is a legitimate forensic purpose for the production of these files. The following observation of Hunt J in R v Saleam (supra) at p18 was approved by King CJ in Carter v Hayes (supra), at p456: "If no public interest immunity or other privilege is claimed (and upheld), and if a legitimate forensic purpose for their production has been demonstrated, the judge should not withhold access to the documents simply on the basis that in his view that purpose would not be satisfied in that particular case because he can see nothing in the documents which will in fact assist the accused in his defence. Provided that a legitimate forensic purpose has been demonstrated, it should be for the accused (or, in appropriate cases, for his legal advisers only) to satisfy himself on that score after his own inspection of the documents."

79. In my view, the claim of public interest immunity should not have prevailed in the circumstances and the first Judge erred in concluding that it did. The second ground of appeal is made out.

80. The third ground of appeal is that the trial Judge erred in prohibiting cross-examination of the two police officers as to credit on the "topic" of complaints against them about previous misconduct by them whilst on duty. If by this ground the appellant contends that he was entitled to elicit in cross-examination the mere fact of the complaints, it is misconceived. The mere fact of complaints having been made is irrelevant to any fact in issue or to the credit of the police officers (unless some particular issue arose which could make that fact relevant) and is therefore inadmissible. However, as has been seen, evidence of the conduct which was the subject of a complaint could, in certain circumstances, be admissible. If this ground of appeal raises the issue of admissibility of the subject matter of the complaints, then it is established. In my view, the appellant was entitled to cross-examine both police officers about such matters.

81. The fourth ground of appeal challenges the findings of the trial Judge, on the voir dire, as to the veracity of the evidence of Constable Pearce concerning the reason for the stopping and searching of the appellant's vehicle. At the outset of the final address of the appellant's counsel at the voir dire hearing, the following occurred: "HIS HONOUR: I might like to hear from you first Mr Lister? MR LISTER: Yes. HIS HONOUR: I will be honest, up until the last witness I was not all that thrilled with Constable Pearce. I am leaving Constable Walker-Roberts on the fringe, so to speak, but I had some reservations about leaning towards your way but then along came Sergeant Williams. I think that is your problem. MR LISTER: I am not quite sure what you mean by that? HIS HONOUR: I found the evidence of Sergeant Williams impressive. MR LISTER: I see. HIS HONOUR: And the areas of concern that I had were tidied up by him. I do not interrupt, I just mention that. That is my feeling."

82. This observation was affirmed in the reasons for the ruling given by the trial Judge.

83. This rejection of the appellant's version of events was of critical importance. If Constable Pearce behaved in the manner described by the appellant, there could be no justification for the search of the vehicle. Behaving in such a high handed way and in total disregard of the law and the rights of the appellant would normally result in the evidence of what was found upon the illegal search being excluded in the exercise of discretion: see Bunning v Cross (1978) 141 CLR 54 at pp76-78. In that event the case against the appellant would have collapsed and he would have been entitled to a verdict of acquittal.

84. It seems from the reasons of the trial Judge that he had doubts about the reliability of Constable Pearce which were not resolved by the confirming evidence of Constable Walker-Roberts. What tipped the scales against the appellant was the acceptance of the evidence of Sgt Williams. In essence he confirmed Constable Pearce's evidence that he approached the appellant's vehicle, knelt down and spoke to him through the window. However, in notes made by Sgt Williams soon after the incident, the following is recorded: "Warrants check at Albert Street. Found to have warrants. $206 non-payment of fines & costs. Warrant No 3911483 refers. Female driving. Ford sedan. Grey. North on South Road. Turned left onto Cross Roads and stopped. Pearce spoke to Polley re warrant. As approached car, saw him reach around right hand to back and appear to put something under his seat from rear. As approach car, he got out quickly and talked to Pearce. His demeanour was very defensive and ..."

85. The notes then refer to other matters. In cross-examination Sgt Williams acknowledged that the notes read that the appellant was out of the vehicle before Constable Pearce spoke to him, but maintained that such a version was incorrect.

86. The trial Judge did not give any reasons for accepting the evidence of Sgt Williams and for taking the next step of using that evidence to confirm the evidence of Constable Pearce and therefore accept his evidence and reject that of the appellant. All the trial Judge said about Sgt Williams and his evidence is that "He impressed me with the manner of his evidence" and that the notebook did not assist him. He went on to say: "I simply accept his evidence and the vital thing which I think I am obliged to accept is that Mr Polley was advised that there was reasonable cause to suspect that there was a prohibited substance in the vehicle and that subsequently the search was legal."

87. Sgt Williams was not able to corroborate the evidence of Constable Pearce as to what he said to the appellant as he did not hear the initial conversation between the two men.

88. 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) 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."

89. See also McKinney v The Queen (1991) 171 CLR 468 at p472. The problems facing an accused with respect to fabricated police evidence as to the reasons for, and circumstances of, search and seizure may be little different.

90. I do not think it is possible to say what view the trial Judge could properly have taken of Sgt Williams and his evidence if he had found that Constable Pearce and Constable Walker-Roberts were untruthful. He may have reached such a conclusion if the so-called propensity evidence was compelling. If so, the evidence of Sgt Williams would not have prevailed merely because of his appearance of being "impressive". The material in the files of evidentiary value to the defence could have led to the version of events given by the appellant being preferred which could have caused doubt about the evidence of Sgt Williams. At the trial such evidence may have resulted in the appellant's version being accepted as a reasonable possibility. In Knight v Jones (supra) the appeal was allowed and a re-trial ordered even though the evidence of the particular police officer had been corroborated by other police. In R v Edwards [1991] 2 All ER 266 the conviction was set aside even though the incriminating evidence was corroborated by other police officers.

91. I have deliberately refrained from describing the alleged conduct of the two police officers as disclosed in the files with any precision because no particular findings have been made. Also, it must be acknowledged the police officers by the very nature of their work are exposed to the making of false or exaggerated complaints against them. Nevertheless, if there is truth in the allegations made against Constable Pearce, or some of them, and to a lesser extent against Constable Walker-Roberts, the appellant was deprived of access to relevant and important evidence which could assist him in his defence and which could have led the trial Judge, on the voir dire, and the jury, to different conclusions.

92. In my view the trial Judge made a wrong decision on a question of law in refusing the appellant access to those files which contained allegations of impropriety on the part of the two police officers of the nature described. A legitimate forensic purpose for their production had been established. This is not a case for the application of the proviso to s353 of the Criminal LawConsolidation Act 1935. The Crown has the onus of showing that the error has not caused a substantial miscarriage of justice: Mraz v The Queen (1955) 93 CLR 493 and R v Alister (supra) per Brennan J at p437 where he said that the Crown must be able to show that the appellant has not lost the chance of an acquittal. The Crown case depended upon the credibility of Constable Pearce, and Constable Walker and, perhaps, to a lesser extent, on Sergeant Williams. I do not think it can be said that in being denied access to the files and the opportunity to cross-examine the police officers with respect to the material contained in some of them and to call evidence as to features of their past conduct, the appellant has not lost the chance of acquittal.

93. I would allow the appeal, set aside the verdict of guilty on the charge of possessing cannabis for sale and order a re-trial on that charge. At the trial the trial Judge, if asked, should consider which of the files may be inspected by the appellant and the prosecution in the light of these reasons.

NYLAND J

94. The facts of this matter and issues for decision are set out in the judgment of Prior J. I have also had the advantage of reading the draft reasons for judgment of Mullighan J.

95. The first ground of appeal arises out of the adoption by the second judge in this case of the ruling by the first judge with respect to the subpoena directed to the Police Complaints Authority for the production of 31 files relating to complaints against two of the police officers concerned with the arrest of the appellant on the charges before the court. In my opinion, the second judge erred in treating the rulings of the first judge on the voir dire as binding on him. Accordingly, those rulings ought not to have been treated by him as excluding any renewed application for inspection of the files.

96. The significant issue which arises on this appeal, however, is whether the first judge was correct in ruling that the files should not be disclosed to the defence. The first judge inspected the files and concluded that the material contained therein could not be regarded as evidentiary material. I agree with Mullighan J, however, that in so ruling, the judge based his decision upon a too narrow a view of evidentiary value. The appellant's case, to a large extent was based on the allegation that the police officers had lied in their evidence concerning the basis upon which they had formed a reasonable suspicion to search the appellant's car. The argument presented by the appellant was that the police officers had no proper statutory cause to stop and search on this occasion and that their claims to the contrary should not be believed because of a prior pattern of behaviour which disclosed breaches of statutory powers on other occasions. The information contained in the files discloses a number of allegations of prior improper behaviour against Constable Pearce. This information assumed considerable importance in the light of the approach taken by the second judge to the assessment of the evidence of Constable Pearce. In his reasons delivered on the voir dire he indicated that he had "reservations after the evidence of Mr Pearce was given" which was only resolved by the evidence of Sergeant Williams, notwithstanding the fact that that Sergeant Williams' notes arguably supported the appellant's case. The judge may well have been less inclined to accept the prosecution evidence, however, if the information contained in the files concerning Constable Pearce, in particular, had been available for cross-examination of him.

97. I do not consider that the subpoena issued by the appellant was "fishing". The matters raised in the subpoena were directly related and limited to issues to be raised at the trial.

98. I have nothing further to add. For the reasons expressed by Mullighan J, I would allow the appeal, set aside the verdict of guilty and order a re-trial.