January 1999 Volume 80 Number 1 "serving the protectors"
So You Think It Can't Happen To You
By Ian Hills - PASA Executive Committee Member

Remember the President’s Message from November last year about civil litigation against police officers? Well, imagine yourself as the main character in this scenario about which I’ve only recently heard.

Assume that you’re on patrol one night and, being short staffed, you find yourself partnered with a cadet on his or her first outphase from the police academy.

You drive down the road and your suspicion is aroused by what appears to be a male person hiding behind a parked car. He appeared to be breaking into this car when you drove past it earlier.

You turn around immediately and drive toward the suspect. When he sees you, he hurries away. You exit the car and catch up to him. You question him as to his actions.

The cadet - whom you had instructed to check the car with which the male appeared to be interfering - calls you on local and says that it looks as if the passenger-side front door lock has been damaged. The car, however, is still locked.

You question the male further and discover that the car neither belongs to him nor any of his friends or relatives. Your suspicion intensifies and you require him to state his correct name and address. He refuses.

You inform him that, by law, he’s required to tell you and his failure to do so may lead to his arrest. He still refuses. You inform him he is under arrest. He protests and a short struggle ensues.

You enlist the cadet’s assistance and overpower, handcuff and place the male in the rear of your police car. You convey him to the city watch house after informing him of his rights.

At the city watch house he’s charged with refusing to state his name and address and resisting arrest. While attempting to search him he becomes evasive and displays resistance to being searched. A strip search is ordered.

After completing the strip search a large roll of banknotes is found in his underpants. This money is duly seized. Questions are asked about ownership of the money. You’re unable to prove it is stolen or unlawfully obtained, so it’s booked into his property after meticulous counting.

You walk away believing that to be the end of the matter, at least until the offender’s court appearance.

On his release on bail, the offender collects, as is his right, a police complaints form.

Two to three months later you receive a court notice to attend the magistrates’ court in relation to the offences with which the male was charged.

You are completely baffled when, under cross examination, defence counsel produces a photograph of the male in which he has two black eyes, a bloody nose and a split lip.

He alleges that you inflicted these injuries at the scene which rendered his client unable to state his name and address. The defence calls a doctor who suggests that the male’s injuries are consistent with being struck a number of times.

Flabbergasted, you deny the claim and explain that only a brief struggle occurred which was necessary to control and handcuff the offender.

The cadet is called to give evidence. Terrified of making a mistake, he tells the court that he is unable to remember anything other than the notes which you made and he duly adopted and signed on the night of the arrest.

In his wisdom, the magistrate accepts that you assaulted the accused, dismisses the charges and awards costs against the police department.

You wonder why no other witnesses such as the watch house sergeant were called for the prosecution to rebut the photographic evidence. Could the sergeant have been able to provide documentary evidence supportive of the prosecution case?

Some weeks later you receive an invitation from IIB to attend for a session. You duly attend and face questioning under the Police Act regulations. It is alleged that you have used unnecessary force to effect the arrest.

You protest your innocence, and reviewing in your mind the photograph you were shown in court, you wonder why you have not been charged with assault. You conclude that no evidence exists to support such a charge.

By now you’re beginning to feel the stress and are starting to doubt why you joined the police force. Still, you realise that once your IIB interview has been analysed and the PCA has reviewed it, the truth will win out and you will be exonerated.

Some months later you receive a letter at home. It directs you to appear before the Police Disciplinary Tribunal to face a charge of using unnecessary force.

Now the stress really sets in. You ask yourself: “Why have they done this?” and “Couldn’t they see it was all a put-up job by the accused.” You don’t see that that’s not the way the IIB and PCA see it - you have become a criminal.

Fear takes over. You wonder: “Am I going to jail?” “Will I lose my job?” “What’s going to happen to me?” “Why am I considering these things before I’ve even been tried?”

Your thoughts are irrational, but you don’t realize that any cop in the same position would have similar feelings.

Next, you visit the Police Association. “Don’t panic,” is the advice. “We’ll send you to a solicitor for an interview.”

You’re interviewed by the Association panel solicitor. Some days later you are informed by the Association that the solicitor will be representing you at the hearing.

The fateful day arrives. You attend court but even the knowledge of your innocence isn’t enough to prevent the fear from being far from the surface. You control the shaking and self-doubt as best you can.

After hearing the evidence, including that from the watch house sergeant, it takes the magistrate only minutes to find you not guilty, while at the same time admitting to being somewhat astonished that the matter had reached the prosecution stage.

You leave the tribunal with mixed feelings. On one hand you feel exultant that you have been vindicated. On the other hand you experience bitterness toward SAPOL for proceeding with a matter that was transparent to all but its investigators.

Finally, after many months, the ordeal is over. You can try to get back to doing your job again - but can you?

This experience has taught you one thing: even if you’re right, don’t expect SAPOL to see it and stand by you. Chastened by this knowledge you modify your policing style, preferring not to involve yourself in situations that may lead to similar results if it’s possible to avoid them.

Some coppers say: “He’s lost his bottle” and “Get off the road”. You wish they could see that you shouldn’t be forced out of the position you occupy just because you did what you believed was your lawful duty. You also wish SAPOL could see the enormous damage done not only to members involved, but also the effectiveness of the organisation.

And the saga continues.

Two years later you receive a summons to appear in the civil court to face a charge of assaulting the same offender - a charge of which you’ve already been found not guilty after enduring a grating investigation.

The bottom drops out of your world. But you are comforted by one thought: the Crown and SAPOL have been joined in the summons and, knowing that you’d been on duty doing your job, you believe that you’ll have their support - something to do with section 51 of the Police Act.

But, incredibly, both the Crown and SAPOL intend only to defend themselves in the action - not you.

Once again, off to the Association you go to be provided, at members’ expense, with another solicitor. Again you’re beset with worry and stress; again your job performance falters.

The court day arrives. You sit nervously in the waiting area. The same offender with whom this whole sorry saga began is sitting just metres away, grinning slyly.

Some moments later your solicitor approaches and guides you into an interview room. All is revealed.

The solicitor tells you that the Crown sees this purely as a business matter and wants to settle out of court. It (the Crown) is prepared to hand over some money to the grinner to prevent the inconvenience of a court case but can’t unless he agrees.

“Oh well,” you say, “that’s pretty silly as I’ve already been found not guilty and why wouldn’t the same thing happen if the facts are the same?”

“Not necessarily,” says the solicitor. “Civil court is determined only on the balance of probabilities, and who knows what could happen. Besides, the Crown wants you to contribute towards the settlement.

“If the case goes to court and you lose you could end up with tens of thousands of dollars worth of costs awarded against you.”

You can’t believe it and begin to panic. You wonder: “What if I lose my house - what would my family do?”

“Don’t worry,” the solicitor tells you. “It’s just a business decision: either pay towards the settlement or risk your house.”

“A business decision?” you reply. “Why, if I did nothing wrong, am I not being supported, and why am I being forced into making this decision?”

No answers are forthcoming.

You agree to pay towards the settlement. No hard feelings though. After all, it’s just a business decision. But in the end, you find yourself out of pocket because, of course, you couldn’t have risked losing your house.

The moral of this story? Don’t expect as a right - when called before a civil court for doing what you believe is your lawful duty - to be automatically supported by SAPOL or the Crown.

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