The NSW Police Commissioner can no longer force officers to answer questions about their conduct on duty after a landmark ruling preserved an officer's privilege against self-incrimination.

In what was seen as a test case for police procedure, Justice Christine Adamson ruled it unlawful for the commissioner, Andrew Scipione, or anyone on his behalf, to direct a Coffs Harbour officer, Constable Errol Baff, to answer questions about a critical incident.

Constable Baff had claimed the protection of the common law privilege not to incriminate himself.

Constable Baff discharged his weapon on May 31, 2011, shooting a Victorian woman.

The court heard he was immediately placed under suspicion of criminal responsibility for the shooting and refused to answer questions during the investigation which ensued.

Fairfax Media understands no charges have yet been laid.

During a hearing in the Supreme Court this week, counsel for the Commissioner of Police, Peter Bodor, QC, argued Constable Baff was required to answer questions for purposes of a departmental "critical incident" investigation, in accordance with sections of the Police Act 1990 and the Police Regulations 2008.

Mr Bodor submitted that Constable Baff's right of refusal was abrogated by virtue of the applicable clauses of the legislation, one of which is that upon becoming a police officer he undertook to obey all lawful orders.

"[Mr Bodor] argued that as the commissioner was lawfully entitled to ask questions of the plaintiff relating to the incident, the plaintiff was legally obliged to answer them, since he had undertaken to do so," Justice Adamsom summarised in her judgment.

But Justice Adamson rejected this analysis.

"Although he or his delegate are entitled to ask the plaintiff any question, the commissioner is not entitled to direct the plaintiff to answer a question once the privilege has been claimed," she ruled.

"On the basis of my construction of the act and regulations, the plaintiff has available to him the privilege against self-incrimination.

"Once it is claimed, any order directing him to answer would not be a lawful order …

"Since the plaintiff had undertaken only to obey lawful orders, he would not be in breach of the order or his undertaking if he refused to answer a question once he had claimed the privilege."

Justice Adamson said Constable Baff remained exposed to criminal prosecution, notwithstanding the apparent conclusion of the criminal investigation - so his right should be preserved.

In making her orders, Justice Adamson said Constable Baff was "entitled, in the exercise of his privilege against self-incrimination, to refuse to answer questions asked of him by the defendant" and declared that "any order directing the plaintiff to answer questions concerning the incident on 30/31 May 2011 is not a lawful order in circumstances where the plaintiff has claimed the privilege against self-incrimination."

Costs were awarded in favour of Constable Baff.

Baff v New South Wales Commissioner of Police [2013] NSWSC 1205 (30 August 2013)

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By:Bob from wa, australia on August 21, 2014 @ 9:15 pm
Under our Commonwealth of Australia constitutional common law, a policeman is never off-duty.

Under the Australian Government unconstitutional admiralty law structure, a policeman is simply a paid employee, clocking in and off duty.

In this workplace agreement the policeman states that he will undertake to obey all lawful orders.

Now you and I know that when a policeman working for the Australian Government operates against you and I, they are operating OUTSIDE of our lawful order, but INSIDE their own corporate rules-book and it looks like some policeman are starting that too.

So what has happened is this.

A policeman shot a woman and has refused to answer questions in the investigation, under the relevant sections of the act that governs his workplace.

He has claimed his COMMON LAW PRIVILEGE not to incriminate himself.

Justice Adamson stated "''Once it is claimed, any order directing him to answer would not be a lawful order …"

Read that very closely folks. Once you claim a common law privilege NOT to incriminate yourself, any demand or direction to enforce you to do so, is an UNLAWFUL ORDER!

And Justice Adamson goes on to say, that as the policeman undertook to only obey lawful orders, and this was now an unlawful order (through his claim), he did not have to provide that information.

What Justice Adamson has established is that the workplace agreement can bind you ONLY to the sections of that agreement - and CAN NOT be superior to your inherent common law privileges.

In some respects Justice Adamson has just established that OUR common law privileges are superior to their statutory demands.

Now, we ALL know that the system relies on us agreeing to answer for and accept the punishment for the Name. And we all know that the very first thing a judge must do is establish that YOU are going to do that.

Before the case can start, YOU and the Name must be the "same persona".

We are all learning how to protect ourselves from doing just that.

Judge Adamson has now given us a ruling IN THEIR SYSTEM, that does just that.

This Justice has also determined one other vital element. The workplace agreement is used against you if necessary.

http://www.greyhound-data.com/knowledge.php?b=6¬e=993477&x=5

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