Charges against NRL players dropped amid perjury claims
Police Sergeant David Power has admitted to giving incorrect evidence to an ACT court.
Charges against NRL players Latrell Mitchell and Jack Wighton have been dropped after the lead police officer involved in the case admitted to giving false evidence in court. The pair were arrested after an alleged altercation at Mr Wighton’s 30th birthday celebrations earlier this year.
They both pleaded not guilty to charges, with Mr Mitchell’s including affray, fighting in a public place and resisting a territory official. Mr Wighton was also charged with fighting in a public place, along with failing to comply with an exclusion direction. A joint statement released in February described the incident as “harmless” and a “wrestle”.
Mr Mitchell was heard screaming and crying in pain during the arrest. The court heard he was “reduced to a weeping mess, fearing for his life,” as he claimed “[he’d] done nothing wrong but be a blackfella in Australia." Upon watching footage of the arrest, Sergeant David Power said he "didn't see an issue with it”.
Tom Taylor, Mr Mitchell’s lawyer, believed police abused their power, claiming “there was absolutely no need by police to use the level of force Mr Mitchell endured” and that “no person should be subjected to the treatment [he received].” Furthermore, he suspected his client “could have died” if not for his extraordinary strength during the encounter.
Sergeant Power alleged in court he had seen Mr Wighton looking angry with clenched fists, and then aggressively held a man by the shirt. Sergeant Power then issued an exclusion order, to which Mr Wighton’s lawyer, Steve Boland, claimed there was no lawful basis for.
Mr Boland pieced together CCTV footage which proved the alleged incident did not occur. Sergeant Power conceded his mistake, saying "Sorry Jack. If that's what happened, I apologise mate.” Sergeant Power blamed the incident on a "long-term memory issue" – insisting it was not a “stitch up.”
Mr Boland pressed on, accusing Sergeant Power of attempting to “frame” his client, arguing the officer’s story was “total and utter fantasy.” Though Sergeant Power stated “[he] did not dream up anything” and “believed … [he] saw it,” he was forced to admit his evidence was “wildly inaccurate.”
Following the revelations, the DPP dropped all charges against Mr Mitchell and Mr Wighton. This has led to speculation regarding potential implications arising from the incident. ACT Attorney-General Shane Rattenbury described the case as “really concerning,” with ACT Policing saying they will “work with the ACT DPP to review the proceedings and consider whether any internal processes and procedures need to be reviewed.”
Mr Taylor feels the players may have sufficient grounds for a civil case. This would likely take the form of a malicious prosecution claim.
This would require Mr Mitchell or Mr Wighton to prove the prosecution was initiated without reasonable cause. Charges being dropped, or a defendant being proven not guilty, doesn’t necessarily mean a prosecution was unreasonable.
There is a long-standing rule that predates Australia, as seen in cases like Christie v Davey (1893), which states that if malice can be proven, unreasonable cause will also be proven.
Reasonable cause can be established when the prosecutor legitimately believes the accused is guilty of the offence and has information to point to such guilt. The prosecution must still be initiated on reasonable grounds, but the burden of proof would be on the plaintiff to show reasonable belief of guilt was not present.
The matter of whether the prosecutor had legitimate intentions is quite difficult to prove, as it requires an objective assessment of whether there was a reasonable belief that Mr Wighton and Mr Mitchell were guilty.. Moreover, to be entitled to compensation, they would need to prove damage to their reputation, property, finances, or physical harm.
Defamatory overtones are not sufficient to prove reputational damage, but extensive media coverage of the case, as a result of an unfair prosecution, may be found to have impacted the plaintiff’s reputation.
The physical harm during the arrest, suffered by Mr Mitchell particularly, is a potential avenue for damages. He claimed at the time to have suffered neck and shoulder injuries, and the potential use of excessive force could entitle him to compensation.
Financial loss would be much harder to prove, especially given that ACT Policing was ordered to pay Mr Wighton and Mr Mitchell’s legal costs. Damage to property can similarly be ruled out.
Even if this civil action is unsuccessful, Sergeant Power could still be liable under criminal law.
Section 703 of the Criminal Code Act 2002 (ACT) criminalises the act of perjury, where a sworn statement in a legal proceeding is false.
Crucially, to be found guilty, the individual would need to be ‘reckless’ about whether the statement is false. Section 20 of the Criminal Code considers someone to be reckless if they are aware of a substantial risk that a result or circumstance will happen, and with these factors known, unjustifiably takes that risk.
The main defence to perjury is a mistake or ignorance of fact, defined under Section 30 of the Criminal Code. Someone cannot be liable for an offence with a physical element if they have a mistaken belief, or ignorance of facts about the situation. Still, any mistake or ignorance must be considered reasonable in the given circumstances.
Additionally, it was found in White v The Queen  that a mistake of fact does not protect someone from facing legal consequences after being “reckless about whether the mistake is false.” A joint judgment in the White case, from Justices Mossop and Collier argued “[a] professional background as a police officer entailed that ... [they] are well aware of the duty to give truthful and accurate evidence”/
The joint judgment affirmed the viewpoint that police officers are expected to conduct investigations with proper consideration of genuine evidence, quoting R v Kellow :
“police officers stand in a special position in relation to offences connected with the administration of justice, and the court cannot be seen to condone or treat lightly wilful and corrupt perjury when committed by members of the force.”
Whilst nothing is guaranteed, civil or criminal consequences may arise due to Sergeant Power’s conduct. This could take the form of damages to be paid to Mr Mitchell or Mr Wighton, or a charge of perjury. A perjury charge could see him face a fine of up to $219,000 or 7-years jail time, though such a significant penalty is unlikely.
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