A COFFS Harbour police officer who shot a suspected car thief during a dramatic arrest two years ago has won a NSW Supreme Court battle to remain silent about his involvement.
In a case, which the court heard could change the way NSW police investigate their own, a Sydney judge found Constable Errol Baff was entitled to protect himself from self-incrimination by refusing to answer the questions of his senior colleagues.
In May, 2011, Coffs police were called to a violent dispute between a couple where the woman was allegedly armed with a knife.
After the couple told police their car had broken down, officers noticed a truck with a trailer of vehicles on it parked nearby.
Suspecting the couple planned to steal a car, they notified the station.
Hours later the truck driver woke to find one of his cars missing.
Police soon discovered the missing car with the couple inside.
The court heard that during an altercation between the couple and police, Const Baff's gun "went off" and the woman was injured.
Witnesses provided statements but Const Baff declined to be interviewed.
When the woman made an official complaint, the Northern Regional Professional Standards Manager launched an investigation into the "reckless infliction of grievous bodily harm" and "unreasonable use of force by firearm discharge".
In May last year, the Director of Public Prosecutions declined to pursue criminal charges against Const Baff as the "evidence was insufficient".
Soon after the shooting, a "Critical Incident" - an internal police investigation which addresses "any wrongful conduct, the welfare of police officers…and gives consideration to improvements to NSW Police Force policy" - was also established.
As a result, senior police on several occasions directed Const Baff to take part in what they described as a "non-criminal interview" to answer allegations of unreasonable use of force and disobeying reasonable direction..
While he was told the DPP was not recommending charges, Const Baff was warned that failure to answer questions was a breach of the NSW Police Code of Conduct.
When a letter to his lawyer in February this year threatened "further disciplinary action" should he continue to decline interviews, Const Baff called on the courts to clarify the rules.
Justice Christine Adamson found that as the NSW Police Commissioner was "liaising with the DPP" about whether there was sufficient evidence for the Const Baff to be charged for a significant time after the criminal interview had ceased, he remained exposed to the risk of prosecution.
She declared he was entitled, in the exercise of his privilege against self-incrimination, to refuse to answer questions asked of him about the shooting.
She said it was "unlawful" for the commissioner to direct him otherwise and ordered the NSW Police Force to cover the costs of the proceedings.
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