R v Tipping

[2016] SADC 167

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v TIPPING

[2016] SADC 167

Ruling of His Honour Judge Tilmouth

23 December 2016

CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY

Examination and discussion of the circumstances in which 'special reasons' exist and when the interests of justice cannot be adequately served other than to require the Commissioner of Police to divulge information gathered in the course of investigating a complaint under the Police (Complaints and Disciplinary Proceedings) Act.

Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) s 21A(1), s 21A(2)(b); Liberato v The Queen (1985) 159 CLR 507; R v Calides (1983) 34 SASR 355; Alister v The Queen (1984) 154 CLR 404; Maddison v Goldrick [1976] 1 NSWLR 651; Carter v Hayes (1994) 61 SASR 451; R v Saleam (1989) 16 NSWLR 14; Grant v Downs (1976) 135 CLR 674; Baker v Campbell (1983) 153 CLR 52; R v Ferri (2002) 220 LSJS 155; R v Polley (1997) 68 SASR 227; Knight v Jones; Ex parte Jones [1981] Qd R 98; R v Harmer (1985) 28 A Crim R 35; Hunt v Russell (1995) 63 SASR 402; Telstra Corp Ltd v CXA Communications Ltd (1998) 146 FLR 481; Goldsmith v Newman (1992) 59 SASR 404; Clarkson v DPP [1990] VR 475; R v Edwards (1991) 93 Cr App R 56; Attorney-General v Hitchcock (1847) 1 Exch 91, 99; Piddington v Bennett Wood Pty Ltd (1940) 63 CLR 533, referred to.
White v State of South Australia (2007) 96 SASR 581; R v Slobodian (1982) 30 SASR 161; Bugg v Day (1949) 79 CLR 442, applied.

R v TIPPING
[2016] SADC 167

The proceedings and issues

1. This is an application for orders by the Defendant Mr Tipping, following the return of two subpoenas directed to the Commission of Police.  These required the production of documents in relation to criminal charges pending against Mr Tipping.

   Factual context

2. The charges relate to the events occurring on 8 July 2015 following a visit by a police officer to Mr Tipping’s home in Highbury, in relation to a minor traffic enquiry.  It is unnecessary to go into all the details.  Whilst at the premises the police officer learnt that Mr Tipping had an outstanding warrant, so the police officer attempted to place him under arrest and handcuff him.  From the prosecution perspective, matters thereafter got out of hand as Mr Tipping initially resisted arrest by struggling and then by punching the police officer to the face a number of times, thereby knocking off his glasses.  These allegations give rise to a charge of resisting arrest, an aggravated assault causing harm and a third aggravated charge of threating life.  These events ended with the arrival of other police officers at the scene.

3. There is evidence that the police officer concerned, a Senior Constable, activated an emergency button on his radio, which may have served to audio record latter portions of these events.  This is the subject of subpoena, which the Crown Solicitor has since provided.  The first subpoena seeks the production of a number of items the subject of either negotiations or agreement, and so require no further consideration at this stage.  The second seeks the disclosure of two matters relating to the past conduct of the Senior Constable in his capacity as a police officer, said to go to his credit.

4. The defence case is that it was the police officer and not Mr Tipping who became aggressive, to such an extent that if there was any force on Mr Tipping’s part, it was exercised in his own reasonable self-defence.  In the words of his counsel Mr Aitken:[1]

   A purported arrest was attempted to be made whereby my client was manhandled aggressively, put into the wall and defended himself, according to my instructions, in relation to s.15 of the Criminal Law Consolidation Act. It went pear-shaped. Ultimately other people arrived. They didn't see anything, save and except they arrested him and put him on the ground and filmed it.

   [1]    T12.34-13.3

5. Obviously the case is more than likely to become a ‘word against word’ case during which the competing credibility of the Senior Constable and Mr Tipping will become the central issues: Liberato v The Queen,[2] R v Calides.[3]

   [2] (1985) 159 CLR 507.

   [3] (1983) 34 SASR 355.

   Disclosure

6. The first item in issue relates to a complaint by a motorist who alleged the same officer was aggressive and overreacted in an incident occurring in May 2012.  He was pulled over on a main road for a minor traffic infringement.  Objection is taken to the production of this material as it is protected by the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA), and on account of relevance. The second item relates to disciplinary action taken against the same officer for disobeying police standing orders in respect of a police pursuit occurring in 2013. This is not caught by the provisions affording statutory protection.

7. There is no doubt that the subpoenas satisfy the preliminary requirements for production, as both items have evidentiary value and are sought for legitimate forensic purposes in the proper defence of Mr Tipping in the criminal proceedings: Alister v The Queen;[4] Maddison v Goldrick.[5]  As Gibbs J famously observed in Alister v The Queen,[6] ‘it may be enough that it appears to be “on the cards” that the documents will materially assist the defence’.  Another example is material which fairly falls within the category of documents ‘reasonably needed for the cross-examination of a witness’: Carter v Hayes.[7]  There is no suggestion that the documents are required for an illegitimate purpose such as fishing, or that the subpoenas are otherwise oppressive or vexatious: R v Saleam.[8]

   [4] (1984) 154 CLR 404, 450-451.

   [5] [1976] 1 NSWLR 651.

   [6] (1984) 154 CLR 404, 414

   [7] (1994) 61 SASR 451, 453.

   [8] (1989) 16 NSWLR 14, 17.

8. The documents in question were duly produced by the Commissioner to permit the court to inspect them for the purpose of assessing potential evidentiary value.  I resolved to inspect the documents for this reason rather than act on a speculative basis which defence counsel was forced to adopt, not having access to the documents: Grant v Downs,[9] Baker v Campbell.[10]

   [9] (1976) 135 CLR 674.

   [10] (1983) 153 CLR 52.

   The traffic stop of 2012 (protected communication)

9. This incident occurred on 19 May 2012 when the officer in question signalled for the complainant to pull over.  He apparently did so because of a perceived anomaly concerning the registration of a trailer being towed behind a motor vehicle, which ultimately proved to be unfounded.  The core allegation was that the officer was ‘extremely rude and abrupt’, would ‘not answer why he had pulled me over’, and that his manner became ‘increasingly aggressive’ as the exchange continued over the course of about 20 minutes, during which he called the complainant ‘an idiot’ at least twice.

10. The Police Complaints Authority determined this complaint should be dealt with as a ‘minor complaint’, pursuant to s 21A(1) of the Police Complaints and Disciplinary Proceedings Act, as it then stood. This meant the complaint was dealt with by way of an ‘informal inquiry only’, by a ‘designated officer’ as required by s 21A(2)(b), as it then stood.[11]  It was determined that the Senior Constable had breached Regulation 17 of the Police Code of Conduct, for which he ‘received unrecorded … managerial guidance’.

    [11]   Note that amendments to this Act by the Independent Commissioner Against Corruption Act 2012 (SA) replace the ‘Police Complaints Authority’ with ‘Police Ombudsman’ whenever occurring (Schedule 3, s 63).

11. It is unclear upon what factual basis this determination was made.  The file notes the officer admitted calling the complainant an ‘idiot’, but stated that it was not meant to be an insult, and was ‘part of a response during an at times heated conversation’.  He further admitted to investigating police that his conduct was ‘not professional’.

12. As noted earlier, this material is protected from disclosure by s 48(7)(c) of the Police (Complaints and Disciplinary Proceedings) Act.  This provides:

    (7)Despite any other Act or law, a person who is or has been the Ombudsman or the Commissioner cannot be required to divulge information disclosed or obtained under this Act in the course of an investigation except where such a requirement is made—

    …

    (c)as required by order of a court, the court being satisfied that there are special reasons requiring the making of such an order and that the interests of justice cannot adequately be served except by the making of such an order.

13. It can be seen the purpose of this section is to protect from the general run of disclosure under subpoena, material obtained under the Police (Complaints and Disciplinary Proceedings) Act.  The provision serves to avoid discouraging complainants from making complaints about police conduct and to prevent, or at least discourage, defence counsel from conducting ‘fishing expeditions’ in the hope of discovering material that might discredit police witnesses in forthcoming criminal trials’: R v Ferri.[12] 

    [12] (2002) 220 LSJS 155: [2002] SASC 217, [14], citing the second reading speech to the 2000 amendments to s 48.

14. As was emphasised by Doyle CJ in White v State of South Australia,[13] the applicant party must demonstrate the existence of both ‘special reasons’ requiring disclosure and that the interests of justice cannot be adequately served except by making an order for disclosure. Obviously then s 48(7)(c) of the Police (Complaints and Disciplinary Proceedings) Act raises the bar above mere legitimate forensic purpose, and above mere relevance so far as disclosure is concerned.  The dual requirement of ‘special reasons’ and the ‘interest of justice’ are interrelated in as much as special reasons are linked to serving the interests of justice.

    [13] (2007) 96 SASR 581, [47], [52].

15. For the purposes of the present application, these twin requirements necessitate something more than evidence having the mere potential to go to credit. In order to overcome the threshold barriers required by s 48(7)(c), in my opinion divulgence ought to be confined to material that is likely to disclose misconduct ‘… of such a nature as to tend to weaken confidence in the credit of the witness, that is to say, in his character or trustworthiness as a witness of truth’: Bugg v Day.[14]

    [14] (1949) 79 CLR 442, 467.

    The traffic stop of 2012 - analysis

16. The defence to the criminal charges broadly centres upon allegations that the police officer concerned overreacted and became unduly aggressive.  The allegations made in the subject complaint, although not strikingly similar, have distinct parallels.  Mullighan J expressed the general principle in R v Polley:[15]

    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.

    [15] (1997) 68 SASR 227, 243-244.

17. This is such a case.  It follows that it is in the interests of justice for the adequate presentation of the defence to require access to the material. Examples of not dissimilar circumstances can be found in Knight v Jones; Ex parte Jones,[16] R v Harmer,[17] and Hunt v Russell.[18]

    [16] [1981] Qd R 98.

    [17] (1985) 28 A Crim R 35.

    [18] (1995) 63 SASR 402.

18. The first precondition ‘special reasons’, is not so straightforward.  This requires the identification of something outside the ‘routine’ or ‘mainstream’, or a ‘substantial departure from the norm’, relative to adequately serving the interests of justice, given the obvious legislative intent that material gathered in the course of proceedings under the statute should generally remain confidential: Telstra Corp Ltd v CXA Communications Ltd.[19]  As King CJ observed in Goldsmith v Newman,[20] the requirement ‘special reasons’, takes its colour from its statutory context and from the purpose the statutory provision serves.

    [19] (1998) 146 FLR 481.

    [20] (1992) 59 SASR 404, 409-411.

19. The purpose to be served here is by and large the prevention of fishing expeditions.  This is no vain attempt to find something in the files that might happen to discredit the Senior Constable, nor is it a trivial pursuit designed purely for the purpose of providing ‘ammunition with which to unfairly seek to besmirch an officer’s reputation’: R v Ferri.[21]  Access to material which tends to assist a defence case, is an important attribute of a fair trial: Clarkson v DPP.[22]  Furthermore, this is no mere allegation, for it was one upheld or substantiated at least in part, so that to prevent cross-examination on the material would potentially compromise the fair and balanced exploration of the reliability of the witness: R v Ferri.[23]  In other words this material may provide the defence the ‘opportunity to pursue a proper and fruitful course in cross-examination’: Maddison v Goldrick.[24]

    [21] (2002) 220 LSJS 155, [24].

    [22] [1990] VR 745.

    [23] (2002) 220 LSJS 155, [22].

    [24] [1976] 1 NSWLR 651, 667-688.

20. To adopt the reasoning of Lord Lane in R v Edwards in an analogous context:[25]

    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 the 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.

    [25] (1991) 93 Cr App R 48.

21. For the above reasons it is proposed to order the material be disclosed, subject to specific orders designed to protect the identity of the complainant, given the expectation of confidentiality: White v State of South Australia.[26]

    [26] (2007) 96 SASR 581, [463].

    The 2013 incident breach of general orders (unprotected)

22. The file produced by the Commissioner in relation to this matter, discloses that the Senior Constable pleaded guilty to a disciplinary charge in April 2015.  He was fined $100, reprimanded and suspended for 12 months from the role of a ‘field tutor’.  The particulars underpinning the charge were that on 12 May 2013 when he was on uniform mobile patrol on Prospect Road, he failed to activate the police vehicle’s emergency warning equipment in an attempt to stop a vehicle in relation to a suspected traffic infringement.  The suspect vehicle accelerated and was followed by the officer to South Road Croydon, where he engaged in a pursuit and in doing so exceeded the speed limit.  The pursuit terminated when the pursued vehicle collided with a stobie pole on South Road, resulting in injuries to both the driver and passenger of that vehicle.

23. The gist of the charge appears to be that the police officer did not activate the police lights or sirens during the pursuit, an obligation arising from police general orders, ‘operational safety – high risk driving’.  These furnish the policies and procedures designated to minimise the risk of danger to the public in various policing activities including pursuits.  A further breach was that he did not communicate to the ‘pursuit Commander’ prior to giving chase, as he was required to.

24. A police investigation revealed that speeds of up 96 kph were reached in the pursuit over a distance of about 5.61 kilometres.  It appears the Senior Constable steadfastly denied he gave pursuit at all.  When confronted with footage of the incident taken from several CCTV street cameras refuting his account, he was ‘totally shocked by the photos to see where the vehicle was in relation to his vehicle’ and in general terms failed to acknowledge the situation.  He was considered to be ‘continually evasive and non-committal to the speed at which his police vehicle was travelling’, when first questioned about the incident.  The Detective Sergeant conducting the inquiry found he ‘continued to pursue this vehicle at a speed significantly in excess of the legal speed limit of 60 kph over a distance of approximately 6 km’. 

25. At first sight this incident would appear to be an operational indiscretion, born out of the heat of the moment.  On reflection however, there is more to it than that in light of the denials which were proven to be false.  On that basis this material is potentially relevant and admissible as going to the officer’s credit, for having falsely denied certain conduct in the course of his duties as a police officer.  This material is not subject to the secrecy provisions, so an order requiring the Commissioner to divulge this material need only satisfy the undemanding common law requirements for disclosure.

    Further observations

26. Whilst the above material is to be released, it must be understood that disclosure is different from proof.  As to the first allegation in pulling over the motorist, it is not clear what precise misconduct the officer was found guilty of, so that proof of the wider facts is another matter altogether.  It is one thing to obtain access to material of value for cross-examination purposes, and yet it is quite another to establishing the underlying facts in an admissible form for the purpose of a criminal trial: Carter v Hayes.[27]  As Brennan J explains in Alister v The Queen,[28] at the disclosure stage of criminal proceedings the question is not ‘the use … to make of evidence … but … loss of an opportunity to obtain it’.

    [27] (1994) 61 SASR 45, 453, citing Maddison v Goldrick, [1976) NSWLR 651, 666 and R v Saleam (1989) 16 NSWLR 141, 22.

    [28] (1984) 154 CLR 404, 450.

27. In respect of this incident, the officer denied doing any more than calling the complainant an ‘idiot’.  In the event that he maintains denials of the broader conduct alleged by the complainant, cross-examining defence counsel would be precluded for proving the facts so alleged, namely that his behaviour was rude, abrupt and aggressive on that occasion, because it is a collateral issue as to which his answers are final: Attorney-General v Hitchcock,[29] Piddington v Bennett Wood Pty Ltd.[30]  This is fundamentally because it would hold an insufficient connection with the issues in dispute, as can be illustrated from the remarks of King CJ in R v Slobodian:[31]

    It is first necessary to consider whether the evidence which was received in rebuttal is admissible evidence.  I have reach [sic] the conclusion that it is inadmissible as being evidence which purports to contradict the appellant’s answers given on matters which are merely collateral to the issues of the trial and which affect credit only.  The rule is clear that answers given by a witness to questions put to him in cross-examination concerning collateral matters affecting credit only, that is to say matters which are not relevant to an issue, must be treated as final in the sense the evidence to contradict them is not admissible.

    [29] (1847) 1 Exch 91, 99, (154 ER 38, 42).

    [30] (1940) 63 CLR 533, 545.

    [31] (1982) 30 SASR 161, 164.

1. Quite apart from protecting the anonymity of the complainant in the 2012 incident, it was for this additional reason that defence should not have disclosure of the name or contact details of the complainant.

   Orders

2. For the above reasons the Commissioner of Police is required to produce the following material to the solicitors for Mr Tipping, pursuant to s 48(7)(c) of the Police (Complaints and Disciplinary Proceedings) Act:

   1In respect of the 2012 incident, all the material produced to the court, to be redacted so as to exclude any material that may identify the complainant or his place of living and any material from which identification and place of living might be inferred;

   2In respect of the disciplinary inquiry of 2012:

   a.Copy of Senior Sergeant Western’s redacted memorandum of 4 February 2015 to the Officer in Charge of the Ethical and Professional Standards Branch of SAPOL.

   b.Interview of the Senior Constable of 13 February 2013 (25 pages);

   c.Copy of DPII Footage Image Captures, Appendix A – Exhibit SJM19 and the statement of Stephen James Murray dated 19 February 2015;

   d.The charge dated 23 February 2015;

   e.The note of 26 June 2015 recording the penalty imposed by the Police Disciplinary Tribunal on 14 April 2015;

   f.The note of proceedings dated 1 June 2015;

   g.The memo from Detective Superintendent Patterson to Assistant Commissioner Killier of 1 June 2015;

   h.Copy of the statement of the Senior Constable of three pages (with Appendix A);

   i.Commissioner’s statement (undated) of 26 paragraphs.

   3Liberty to apply.

3. I note that all documents supplied to the Court by the Commissioner on subpoena were returned to his Counsel.