My friend and regular contributor to this blog, Luke Dam, brought this story to my attention “‘Cop … pleads not guilty to reckless conduct over high-speed chase’. The online version of includes dash board camera from the pursuit car that shows the other police car, driven by the defendant, ramming the car that was being pursued.

Luke says “I’m intrigued that the Police has been or can be charged with reckless- who would’ve charged him? Another Police Officer? DPP?”

I’ve made some comments on police and emergency service drivers being charged in earlier posts; see
West Australian police officer charged (15 June 2012);
• “Ambulance officers’ speeding fine storm” (12 February 2012);
• “Police caught on camera running red lights, speeding for no reason” (19 April 2010)

This case is a bit different as it’s not simply a question of a police officer’s exemption from the road rules (see Road Safety Road Rules 2009 (Vic) rule 305) because this offence, reckless conduct, is not an offence contrary to the Road Rules, rather it is an offence contrary to the Crimes Act 1958 (Vic). (I infer that he’s been charged with ‘Conduct endangering persons’ contrary to s 23. That section says “A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of serious injury is guilty of an indictable offence”. The maximum penalty is imprisonment for 5 years).

The comments that follow are necessarily general in nature; they do not relate to the specifics of this case and in no way should be thought to reflect on this particular defendant’s guilt or innocence.

In this context I would suggest that ‘reckless’ means that the accused realised that his or her actions may cause a serious injury but proceeded anyway (see R v Crabbe (1985) 156 CLR 464). In a case like this there are two obvious issues to be argued, whether the officer had a ‘lawful excuse’ being the exercise of reasonable force to make an arrest; and whether he was reckless ie did he realise that there may be a serious injury or not. These are matters for evidence and ultimately the jury, and we should not explore them any further here.

What I can address is Luke’s question ‘… who would’ve charged him? Another Police Officer? DPP?’

A famous dictum from English law is ‘Be you ever so high, the law is above you’ (see “Tom Bingham, The Rule of Law”). That includes a police officer; that is a police officer is bound by the law as much as anyone. The reason police can drive contrary to the road rules, carry firearms, force entry into premises etc is not because they are exempt from the law, but because there are specific laws to allow them to do those things, but they must comply with the law – this is fundamental to the issue of the rule of law.

Another fundamental principle is that ‘not only must justice be done, it must be seen to be done’ (see R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256; but let us not get into a debate on particular cases about whether justice was done, or seen to be done). In this context the relevance is that is why we have open courts where journalists like Mark Dunn can attend the court proceedings and report on them; anyone can go and sit in the court room and the final result is delivered in open court. If the trial is by judge alone then he or she must deliver detailed reasons for the decision; if the trial is by jury there are no reasons but the issues are determined by a collection of 12 people who hear the evidence and make a decision on behalf of the community. The alternative is to let ‘justice’ be determined by government officials in the privacy of their office.

In this context there will be issues about what the officer knew or believed, what is ‘reasonable’ etc. The police could determine that and not charge the officer but that leaves an impression that the police are above the law (which they are not). (At least in this country we don’t have a system where the police decide guilt and lock people up forever, or worse, so we need not consider that option and we know that if police, like anyone, take the law into their own hands then they will be committing an offence). That does not mean police officers should be charged to keep up appearances, it means the law and its processes should be applied.

There are many checks and balances in the law, one can imagine that when there is a collision such as this one the accident investigation people do their normal inquiries, the drivers’ are interviewed, in this case the video is scrutinised. Ultimately a police officer (probably from an internal affairs unit) has to make an assessment as to whether or not there is a prima facie case against the accused. Police do not have to be convinced of a person’s guilt before they charge them, they only need to have a ‘reasonable suspicion’ that the accused may have committed an offence. That just requires evidence that a court could accept and if they did could find the offence proved. The police may
• believe the accused is not guilty (eg in a self defence case the accused may say it was self defence, others say it wasn’t, the police may believe the accused but in the circumstances, where it is one person’s word against others, there is evidence upon which the accused could be convicted);
• be unsure (eg where they have evidence pointing both to guilt or innocence)
• be convinced of the accused’s guilt.
In any case if there is evidence that suggests guilt, the appropriate course is to put the person before the court so the evidence can be tested in public and so anyone who has an interest can attend and see the issues. (see Michael Eburn, Rod Howie and Paul Sattler, Criminal Law and Procedure in NSW (4th ed, Lexis/Nexis, 2013, chapter 11)).

Apart from the police, the Director of Public Prosecutions will also act as a ‘check’. The DPP will review the evidence, a prosecutor should not bring a prosecution unless he or she believes there are reasonable prospects of success in order to avoid people being put to the trauma of defending proceedings as a show trial or to appease the ‘shock jocks’.

The initial consideration in the exercise of this discretion is whether the evidence is sufficient to justify the institution or continuation of a prosecution. A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the alleged offender. (The term “alleged offender” includes an accused person.)

… A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. In indictable matters this test presupposes that the jury will act in an impartial manner in accordance with its instructions.

(Director of Public Prosecutions Victoria, Director’s Policy; The Prosecutorial Discretion (27 July 2013) [2.1.2]-[2.1.3]

Again that does not mean that the accused is guilty, the prosecutor’s job is to put evidence before the court so the judge and jury can determine whether or not the accused is guilty:

‘A prosecuting counsel stands in a position quite different from that of an advocate who represents the person accused or represents the plaintiff or defendant in a civil litigation. For the latter advocate has a private duty that of doing everything he honourably can to protect the interests of his client. He is entitled to ‘fight for the verdict’. But the Crown counsel is representative of the State, a ‘minister of justice’, his function is to assist the jury in arriving at the truth. He must not urge any argument that does not carry weight in his own mind, or try to shut out any legal evidence that would be important to the interests of the accused. ‘It is not his duty to obtain a conviction by all means; but simply to lay before the jury the whole of the facts which compose his case, and to make these perfectly intelligible, and to see that the jury are instructed with regard to the law and are able to apply the law to the facts’. ‘It cannot be too often made plain that the business of counsel for the Crown is fairly and impartially to exhibit all the facts to the jury. The Crown has no interest in procuring a conviction. Its only interest is that the right person should be convicted, that the truth should be known, and that justice be done.

(Director of Public Prosecutions Victoria, Director’s Policy; Prosecutorial Ethics (29 April 2010) [1.1.5] quoting Queen v Beydag (unreported, 25 November 1996, Victorian Court of Appeal (Ormiston & Charles JJA and Vincent AJA)).

So who charged this officer? No doubt it was another police officer, because in that officer’s mind there was sufficient evidence to establish the elements of the offence and that view was supported by the relevant prosecutor. So now the matter is before the Court for a final decision to be made by a judge or the jury. And that’s the rule of law – it should not be up to the police to decide the cases either where they are convinced of guilt or where they think the accused ‘may’ be guilty.

As a lawyer you are asked ‘how can you act for someone you know is guilty?’ which hides the complexity of the event. I infer that it is uncontroversial that the constable was driving the car and that it collided with the car that was being pursued by other police so on a simplistic view, he did ‘it’. But the question in a criminal trial is not did the accused perform the action that is the subject of the hearing, but did he or she commit the offence charged; and again without in any way suggesting one way or the other whether or not this officer is guilty, we can see that raises questions of whether he had a lawful excuse, where he believed he had a lawful excuse, did he intend to ram the car or was it an accident etc. Justice is served by allowing the court, in open hearing, to hear the evidence and reach a conclusion.