The principle that a defendant in a criminal trial is innocent until proven guilty is a fundamental common law right. It is also known as the ‘golden rule’ in Woolmington v DPP [1935] AC 462. In theory, this principal should protect alleged criminals from being judged without a formal hearing and from being subject to punishment, including via police conduct. Unfortunately for sporting stars whose reputation off-field is intrinsically linked with how the public perceive the sport, players accused of criminal offences are often pre-judged by the public and by their sport authority.

The Federal Court recently upheld the Australian Rugby League Commission’s new no-fault stand down policy for off-field behaviour in De Belin v Australian Rugby League Commission Limited [2019] FCA 68. The policy forces players to take paid leave, and, as a result, face public scrutiny for a crime they have not yet been convicted of. It was recently used to stand-down St George Illawarra Dragon’s forward Jack de Belin, who is set to attend trial on 2 November 2020, facing charges of aggravated sexual assault in company. Curtis Scott’s lawyer claims that the ARLC bullied him and threatened to stand him down earlier this year, when he was unable to obtain police bodycam footage of his arrest to be used to defend himself against various allegations. Scott alleged improper conduct by the officers and his lawyer advised the media that he will be pursuing civil damages from the NSW Police Force.

This article demonstrates the importance of viewing unconvicted criminal cases from alternative perspectives. It is important to appreciate that at common law the guilt of an accused must be proved by the prosecution beyond all reasonable doubt. This principle is often overlooked, with a flurry of media outlets searching for the next young sports star to sabotage their career through crime and stupidity. We have also explored the prevalence of police misconduct in Australia, and the effects that misconduct has on people who are caught in situations like Scott.

Scott’s case and acquittal

Raider’s centre Curtis Scott’s acquittal earlier this month for various charges, including resisting arrest, assaulting police, behaving in an offensive manner in a public place, behaving in an offensive or indecent manner and remaining on trust lands after request to leave, constructs a dark image of how the public and sporting authorities tend to prematurely judge the guilt of an accused before trial.

Following a night of drinking on Australia Day weekend this year, Surry Hills Police responded to a call of an intoxicated man acting in an erratic manner in Paddington. The officers located 22-year-old Scott asleep under a tree at Driver Avenue in Moore Park and attempted to assist him. The police alleged that Scott became hostile, at which point the officers tried to arrest him. Scott allegedly resisted arrest and police were forced to administer capsicum spray and taser him while he was handcuffed. He was then brought to Surry Hills Police Station and released early the following morning.

Upon viewing the police bodycam footage of the altercation, which at no point suggested that Scott was resisting arrest, Magistrate Giles of the NSW Local Court dismissed all charges, including his guilty plea to two charges of offensive behaviour. Scott, who is now thankful to see the end of nine months of uncertainty, walked out of the court room when the footage was played, unable to relive his traumatic arrest.

Ms Giles, who visibly cringed when viewing the footage, said “I genuinely think Mr Scott might have been safer if he wandered onto the roadway and been hit by a car”. Scott’s lawyer Sam Macedone, who claimed that the prosecution’s case was groundless, told the media “that’s a bloke who can’t even open his eyes and was so disorientated that he thought he was getting dressed.” The police were ordered to pay $100,792.30 to cover Scott’s legal costs.

Regardless of his dropped charges, the ARLC fined Scott $15,000 for public drunkenness and for bringing the sport into disrepute. He also lost his Nike sponsorship as a result of the charges earlier this year. Although Scott was not stood down pending the outcome of his trial, his reputation is tarnished as a result of his case.

Scott has been transparent on social media about the mental anguish the case has caused. He posted on social media that it “would have been easy to turn your back on me like a lot of people with the picture that was painted of me. I am grateful for the continuous support and happy to put this behind me and move on.”

Improper police conduct a problem in Australia

Discretion, in the words of Lord Scarman, is the ‘art of suiting action to particular circumstances.’ It is not an invitation to act illegally or with inappropriate force. Scott’s case acts as an illustrative example of major issues surrounding police misconduct and use of discretion, by bringing it to the forefront of popular media. It is also worth noting that Scott’s case occurred during increased community scrutiny of police behaviour amidst the 2020 Black Lives Matter movement, combined with data indicating the discriminatory issuing of fines under COVID-19 legislation towards youth and minority groups, particularly in NSW and VIC.

Like other members of the community, it is possible that police may act from personal racist motives, or be influenced by institutional racism when making decisions on whether to act, arrest or charge someone. It is however important to recognise that police never have authority to act illegally. This includes acting not in accordance with Racial and Sex discrimination legislation, for example by targeting a specific group based on religion or race.

It is a well-known fact that Aboriginal and Torres Strait Islander people make up a disproportionate amount of Australia’s prison population. Although only making up 3% of the population, Indigenous Australians make up more than 27% of our prison population and 55% of our youth detention population. This is compounded with more than 400 Indigenous deaths in custody since the Royal Commission into Aboriginal Deaths in Custody in 1991.

This issue of police brutality and racial targeting came to the forefront in Victoria recently, when police allegedly spear-tackled and violently threw Indigenous man, Korey Penny, from his bicycle in Melbourne in early September while on his way to work for essential employment. Penny also alleged that, during the 7 minutes of missing body cam footage, he was called a “black c***”.

Penny was left with a broken arm and his bicycle was ridden off, allegedly from the force of being thrown to the ground by the officer. He now claims that he was racially vilified and targeted, in a way which a “white man in a suit” would never be targeted. Unfortunately, Penny’s story is one of many recounts of police brutality, misconduct and racial targeting.

Given the lack of funding for the Law Enforcement Conduct Commission, only 2% of reported cases of police misconduct are fully investigated. If the body which ensures accountability of law enforcement officers is underfunded and therefore not able to operate at full capacity, exactly how is discretion and police behaviour being monitored? This question is particularly important given the increase in police power to issue fines during COVID-19, and data indicating that over 10% of fines have been issued on Victoria’s most disadvantaged communities.

Due to the inability of the Commission to pursue investigation, it is likely that the community are unlikely to waste their time reporting instances of police misconduct. It seems that the prevalence of police misconduct is due to underfunding, lack of education and racial and other prejudice.

What can be learnt from Scott’s trial?

Like most criminal defendants with a public profile, it is unlikely that Scott’s reputation, after being slammed in the media, will recover quickly. A questioned aroused by Scott’s ordeal is whether we have a tendency to judge the guilt of an accused prematurely. Does the media’s hyper-sensation of public profile criminal cases subjugate the protection supposedly offered by the presumption of innocence? Had the media and the ARLC, by threatening to stand Scott down, already constructed his guilt without a formal criminal trial? Finally, does the upholding of policies like the ARLC’s no-fault stand down policy facilitate the subjugation of the presumption of innocence?

Scott’s case highlights the importance of viewing criminal matters from alternative perspectives. Ultimately, construction of a legal case is the construction of a story. At trial, the judge or jury will select the series of events which is best supported by the available evidence presented before the court. In Scott’s trial, the prosecution withheld the police bodycam footage which was used to defend Scott from the allegations. It wasn’t until the horrific footage of Scott’s arrest was obtained that an alternative perspective emerged, and, by this time, he was allegedly receiving death threats, his career was threatened, and he had been dropped by his sponsor, Nike.

Although a tragic series of events for the Raiders superstar, Magistrate Giles insisted Scott was “a person on whom this experience has not been wasted”, indicating that the case may have far-reaching implications for how police conduct themselves in the future.

Scott’s case therefore is not a wasted tragedy. It offers a tangible example of the importance of appreciating that, until all available evidence is presented, and a final outcome is resolved, it is extremely dangerous to artificially construct the guilt of an accused. It is important to see the second side to any story.

For 22-year-old Scott, the single-sided story of his ordeal with the police almost cost him his Rugby career. It also highlights the prevalence of police misconduct. Have you ever felt that you were unfairly targeted by a police officer based on your perceived religion, race or gender? His story brings to the forefront of the media police misconduct which everyday people experience on a regular basis. As Magistrate Giles indicated, it is likely that Scott’s matter will have future bearing on police conduct.