CITATION: R. v. Quirk, 2024 ONCJ 232
DATE: 2024 05 10
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
DAVID QUIRK
Before Justice Fergus ODonnell
Reasons for Judgment Delivered on 10 May, 2024
Ms. A. Galea....................................................................................................... for the Crown
Mr. M. Del Gobbo............................................................... for the defendant, David Quirk
Fergus ODonnell J.:
Overview
The wee hours of the morning. A speeding car. A very brief vehicle and foot “chase”. The smell of alcohol on breath. Defiance. Resistance. A struggle. Drink-driving charges. Allegations of excessive force and denial of access to counsel.
That is a very brief summary of the case of Mr. David Quirk who appeared before me for trial on charges of driving while impaired by alcohol, driving with excess blood alcohol and obstructing police. These are my reasons for dismissing Mr. Quirk’s Charter applications relating to alleged excessive use of force and denial of proper access to counsel and for finding Mr. Quirk guilty of the excess blood alcohol and obstruction counts. Although there were certainly grounds to arrest Mr. Quirk for impaired driving, I am not satisfied that the limited evidence before me proves impaired driving beyond a reasonable doubt and I find Mr. Quirk not guilty of that charge.
I heard from four responding officers as well as the breath technician. I also had video of the strip plaza parking lot (of very poor quality) and of Mr. Quirk’s booking process, along with records relating to his injuries. I shall summarize the evidence before me and then set out why Mr. Quirk’s arguments on the Charter fail and why the Crown’s arguments on conviction mostly succeed. In light of some of the evidence at trial, however, I shall end with some comments about the (ironically malevolent) impact of Sergeant Schultz on some of the testimony presented to me. Sergeant Schultz, to be clear, was not a witness. He is not a member of the Niagara Regional Police Service.[^1] Indeed, he is not even a real person.
The Evidence
In keeping with many parents’ advice that nothing good happens after 2 a.m., Mr. Quirk drew the attention of Niagara Regional Police Constables Byers and Arp by driving at a very high rate of speed in downtown St. Catharines just after 2:30 a.m. They followed him and saw his car bouncing back and forth within its lane and crossing into the oncoming lane. Constable Byers estimated Mr. Quirk’s speed at around 95 kilometres per hour[^2] while Constable Arp testified that 95 km per hour was the speed the police cruiser reached in order to catch up to Mr. Quirk, which I believe to be the accurate version of events.[^3] Mr. Quirk slowed down and when Constable Byers activated his lights and siren, Mr. Quirk pulled over to the kerb within about ten or fifteen seconds. However, when Constable Byers was about to get out of his cruiser, Mr. Quirk drove off at a lawful speed and was pursued again briefly, whereupon he parked in a strip-mall parking lot thirty or forty-five seconds later. He “stumbled” out of his car and started walking unsteadily away (although neither of these details was noted in Constable Byers’s notes), ignoring Constable Byers’s directions to return to the car.
Constable Byers than walked over to Mr. Quirk and smelled alcohol on his breath, whereupon he told Mr. Quirk that he was under arrest for impaired driving. Mr. Quirk answered, “no”. When Constable Byers repeated that Mr. Quirk was under arrest and tried to establish physical contact with Mr. Quirk, Mr. Quirk asked, “you want to go?”, which Constable Byers said was an unequivocal expression of an intention to fight on Mr. Quirk’s part. I accept that as a perfectly reasonable interpretation on Constable Byers’s part. It was put to both Constables Byers and Arp that Mr. Quirk actually said, “do you want to let go?”, which both denied. Constable Arp also said that even that statement would be a form of active resistance on Mr. Quirk’s part, which strikes me as a fair observation.
Constable Byers decided to try to ground Mr. Quirk, a technique that uses the arrestee’s own body weight to bring him to ground, ideally landing on his stomach, but Mr. Quirk resisted and landed on his back and had to be rolled over, refusing repeated orders to present his hands to be handcuffed. Constable Byers testified, credibly, that any time when a person has their hands concealed there is a concern about whether or not they are trying to access a weapon. Constable Byers testified that after multiple refusals by Mr. Quirk to surrender his hands, he used multiple blows with his hand and perhaps his knee in order to force Mr. Quirk to surrender his hands, which was eventually accomplished. In this endeavour, as in the grounding exercise, Constable Byers was aided by Constable Arp, with each of them on opposing sides of the prone Mr. Quirk. Constable Arp’s testimony was very much consistent with Constable Byers in relation to the initial interaction, but he gave somewhat more detail of the force he used, which included two or three hand strikes to the upper back and arms to obtain control of Mr. Quirk’s hands, which was not successful, followed by one or two knee strikes to his mid-section/abdomen, which allowed Constable Arp to secure Mr. Quirk’s left arm. Constable Arp said he was unsure who got a hold of Mr. Quirk’s other arm, but thought it was a combination of officers, which is consistent with other testimony. He did not recall Constable Sorley using any force on Mr. Quirk, recalled Constable Gifford grabbing his legs and could not recall what role, if any, Constable Bolduc played. Once Mr. Quirk was restrained, Constable Arp said they effectively had to carry him to the police car, although he conceded in cross-examination that that could have been related to the force used upon him immediately before that point.
The interaction at the plaza parking lot was also captured on a CCTV system, but the video quality was very, very poor and the CCTV evidence is really only useful for timing, including that from the time of stopping in the plaza to the time of Mr. Quirk being taken to the ground was in the range of twenty to thirty seconds. I did not find the CCTV from the plaza to be at all helpful in determining the authorship, extent or reasonableness of any use of force here in light of its very poor quality.
Constable Gifford arrived soon after the initial stop and helped by restraining Mr. Quirk’s legs. By this time, Mr. Quirk was on his stomach and his hands were already behind his back but he was trying to resist having the handcuffs applied. Constable Gifford said that no blows were delivered in his presence. Constable Sorley arrived with Constable Gifford and ran to Constable Byers’s side to assist him in securing Mr. Quirk’s hand, as Constable Arp was larger than Constable Byers. He did not see Constable Gifford use force because Constable Gifford was behind him. He did not see Constables Arp or Byers use force because he was focused on his task. With respect to their ability to observe what was happening, I note that three of the officers were within perhaps a foot or two of each other and the fourth was at most four feet away.
At the police station, Mr. Quirk was paraded before the booking sergeant and provided a list of injuries. He does appear the worse for wear in the booking video, but that is not determinative of an excessive force claim. Mr. Quirk asked to speak with a specific lawyer and Constable Byers called, but it went to voice mail so he asked Mr. Quirk what he wanted him to do, offering to make further calls to that lawyer, leaving a message for that lawyer, calling another lawyer or calling duty counsel. Mr. Quirk opted for duty counsel and was put in touch with one, after which he was delivered to the breath technician, Constable Amio. Ultimately no breath sample was taken as Constable Amio eventually decided to take Mr. Quirk to the nearby hospital as a result of Mr. Quirk’s persistent complaints of pain and injury. At the hospital, Constable Amio raised access to counsel again with Mr. Quirk, but Mr. Quirk said that his lawyer would probably be sleeping and would say the same thing as duty counsel had said. Blood samples were taken at the hospital, demonstrating a blood alcohol concentration of 189 mg of alcohol in 100 ml of blood.
I have a video and a transcript of the breath-room conversation as well as Constable Amio’s evidence about that, which shows that Mr. Quirk was complaining about his ribs and asserted that he was unable to provide a sample. Constable Amio was not initially attentive to Mr. Quirk’s claims that he could not provide a sample because feigning injuries is common.
The Allegation of Excessive Use of Force
The Charter allegation in relation to excessive force must fail. There is no contrary narrative to what the police describe and, subject to what I say later about specific observations (or, more accurately, non-observations), the police evidence strikes me as generally reliable and convincing. As Constable Byers testified, he had to look at the totality of the situation in determining how to proceed. He had pulled Mr. Quirk over, but Mr. Quirk had pulled out again and driven to the plaza, for reasons unknown to the police. He had told Mr. Quirk to return to the car and Mr. Quirk refused. Mr. Quirk then kept walking. When told he was under arrest Mr. Quirk said “no”. When Constable Byers tried to take control of him, Mr. Quirk challenged him to a fight.
The question in relation to Constable Byers then deciding to ground Mr. Quirk is not whether or not that was the only option available to him, but whether or not it was a reasonable choice. Is it possible that another officer might have tried to de-escalate verbally for longer? Perhaps. Perhaps not. But the judgment calls in these situations are not matters of bright or solid lines; to the contrary they are shades of escalating options blending from one level of intervention to the next. The same analysis carries through to the use of body strikes to get Mr. Quirk to surrender his arms and hands. An unexposed hand is a danger in circumstances like that. It may in a particular case be only a theoretical danger, but the police officer has no way to know for sure, on limited information, what is or is not accessible to the detainee. The officer does not know if the detainee is withholding his hands simply because he is stubborn or because he is reaching for a weapon. He or she has an obligation to ensure his or her own safety, the safety of other officers, the safety of the public and the successful completion of the arrest for a serious offence.
There is nothing in the medical and other records filed to suggest that the force used was excessive. Mr. Del Gobbo relies on Mr. Quirk’s GP records from a few days later suggesting the likelihood of broken ribs, but the hospital records from the night of the event, which include X-rays, do not support that conclusion and are clearly a more reliable piece of evidence than a GP’s opinion of a “likely” fracture without that technology and perhaps without the GP even knowing that X-rays had been taken. We do not have any evidence from Mr. Quirk about the force used on him or the actual impact on him from those blows. That is Mr. Quirk’s choice, but a trier of fact has to determine the issues on the evidence presented. We do have his complaints at booking and in the breath room, but those complaints have not been tested in cross-examination and would not in and of themselves make out excessive force.[^4] Indeed, the breath technician, Constable Amio, originally disregarded Mr. Quirk’s complaints, effectively concluding initially that Mr. Amio was malingering and eventually changing his mind and taking him to the hospital. Constable Amio’s change of mind does not determine whether or not Mr. Quirk was in fact seriously injured or even if he was in fact incapable of providing breath samples. Quite simply, we will never know. It is not at all uncommon for people to make false claims of being unable to provide a sample, a task that is generally very simple.
There is nothing in the record before me to show that the police resort to the use of force in the first instance falls outside the standards set out in s. 25 of the Criminal Code, or that the amount of force used was beyond the pale. I reject the idea that in the circumstances here Constable Byers was not entitled to ground Mr. Quirk without Mr. Quirk committing a more overt act such as blading himself or attempting a first blow. Mr. Quirk’s verbal intimation of violence set the scene for the grounding and one of the facts of life is that resistance to a lawful arrest does not always end well for the arrestee, even when the police have not stepped out of bounds. In light of the uncontroverted evidence, which I accept, that Mr. Quirk continued to refuse to surrender his hands, I reject the suggestion that the blows used were excessive. I reject the implicit suggestion that the fact that none of the officers sustained any injury other than perhaps a scrape means that the use of force on Mr. Quirk was unjustified or excessive. I reject the suggestion that, “clearly someone hit him in the face”, an assertion for which there is no evidence; indeed Mr. Quirk landing face down when he was grounded provides a perfectly rational explanation for the mechanism of that injury (among some others).
Ultimately, the onus on the excessive force allegation is on Mr. Quirk on a balance of probabilities and he does not come anywhere close to meeting that onus. Indeed, even if the onus were reversed and the Crown had to disprove excessive force, the Crown would succeed. On the evidence before me the Crown would succeed even if the Crown’s burden on that was proof beyond a reasonable doubt. The application for a stay under s. 7 is dismissed.
The Allegation of Denial of the Right of Access to Counsel of Choice
This Charter challenge also cannot succeed. Here, again, Mr. Quirk has, on the record before me, failed entirely to prove a breach. While access to counsel of choice is a recognized right, it cannot be turned into a weapon against a finding on the merits when a defendant has made his or her own choices. I am satisfied that Mr. Quirk had his options explained to him. He chose to have a call placed to a particular lawyer. There was no answer. There was no evidence that an alternate number for that lawyer was available to the police. The uncontroverted evidence is that Constable Byers reported back to Mr. Quirk that there was no answer and then gave him a menu of options including placing another call to that lawyer, leaving a message for that lawyer, calling a different lawyer and calling duty counsel. (There was no evidence at all to suggest that even if Constable Byers had left a voice mail message, that any such message would have come to the lawyer’s attention before the opening of business on the next day). Mr. Quirk made a choice to speak to duty counsel. When Constable Amio raised the issue of access to counsel again at the hospital, Mr. Quirk made a decision that he would not likely get an answer and that the lawyer would probably give him the same advice as duty counsel. That choice and that assessment were rational options open to Mr. Quirk. While it might benefit Mr. Quirk, ex post facto, to infantilize him and disregard his mature, conscious rational choices, it would do a disservice to the credibility of the Charter to acquiesce to the suggestion that he was denied reasonable access to counsel of choice. The hyper Charter-ization of drink-driving law in Canada has, to be kind, not been this nation’s finest jurisprudential hour.
The record shows that Mr. Quirk was given choices in relation to access to counsel and made his choice. There is no evidence from him, or otherwise, on the record to suggest that his options were unfairly constrained by the police or that the police had been inattentive to his Charter rights. The Charter application alleging denial of access to counsel fails. The application for exclusion of the blood analysis is dismissed as no breach of s. 10(b) is made out.
Disposition on the Merits
On the impaired driving count, there is no question that Mr. Quirk was the driver of the BMW that was stopped by Constables Byers and Arp. With respect to impairment, he had the smell of an alcoholic beverage on his breath and while driving he drove at excess speed and occasionally (two or three times according to Constable Arp) crossed the centre line, albeit on a relatively narrow road with parking for cars in the direction he was travelling. Constable Byers’s evidence about Mr. Quirk stumbling on getting out of the car at the parking lot is not particularly robust and Constable Arp conceded fairly that Mr. Quirk’s inability to walk unsupported from the site of his grounding to the police car after arrest could have been a byproduct of the force required to detain, secure and handcuff him. On the record before me I am not satisfied that impaired driving has been proved beyond a reasonable doubt, although it is highly probable. I find Mr. Quirk not guilty of that count.
On the obstruct police charge, Constables Byers and Arp were attempting to conduct a lawful arrest, which Mr. Quirk first tried to evade by driving and walking away, then tried to resist by an intimation of a violent response and then physically resisted by trying to keep the police from accessing and restraining his hands and arms. The offence of obstruct police is clearly made out beyond any reasonable doubt and I find him guilty of that count.
On the excess blood alcohol charge, the overall evidence including the toxicology report proves the charge beyond any reasonable doubt and I find Mr. Quirk guilty of that count also.
But what about Sergeant Schultz?
As I have mentioned earlier, Sergeant Schultz does not exist, neither as a member of the Niagara Regional Police nor as a real person. He exists only in the imagination of a Hollywood screenwriter writing a situation comedy called Hogan’s Heroes half a century ago and mostly only in the memories of those fortunate enough to have grown up at a certain time and place when that show was broadcast.
Sergeant Schultz was a member of the Luftwaffe, assigned to guard Allied aviators who were prisoners of war in a German Luftstalag during World War II. He presented as a lovable oaf, but he was in fact no fool. Since his prisoners were using their captivity as a base for resistance and sabotage work inside and outside the camp and since Sergeant Schultz’s principal preoccupation was serving out the war in relative safety as a camp guard and avoiding being sent to the Russian Front and probable death, Sergeant Schultz mastered the skill of exquisite obtuseness. Perhaps mimicking the western conception of the Japanese image of the three wise monkeys who, “see no evil, hear no evil (and) speak no evil”, whenever something went awry in the prisoner of war camp and there was a risk of trouble heading his way from either the camp Kommandant or the Gestapo, Sergeant Schultz would intone forcefully, “I see nothing, I hear nothing, I know NOTHING!” or some variation thereupon. Those utterances became a meme, decades before the concept of a meme even entered popular culture.
Coming from the mouth of the actor John Banner, those words came to be very amusing.
Coming from the mouths of witnesses in a courtroom, not so much.
I referred earlier to the impact of Sergeant Schultz and his self-induced blindness being “ironically malevolent” because there was not a malevolent bone in Schultz’s body or a malevolent thought in his mind. There is, however, nothing sweet or innocent or lovable in police officers’ imitation, wilful or otherwise, of Schultz’s wilful denial of knowledge. He was facing the Russian Front; police officers are just facing a cross-examination. There was a recurrent theme in this trial for witnesses, police officers of the Niagara Regional Police, to have observed and recalled only what they themselves did. That theme is not limited to this trial. By way of example only, I commented on a similar issue in R. v. Jackson, 2011 ONCJ 228.
- I accept that in the intense environment of a struggle such as this it is entirely understandable that the police officers might have better recollection of their own actions than of the actions of the other officers and might not have seen everything that an adjacent officer did or did not do. However, it strikes me as highly implausible that so many officers could see so little of what happened in their immediate vicinity, however tense the circumstances. People of a certain age will recall Sergeant Schultz, the Luftwaffe prison camp guard in the television series, Hogan’s Heroes, who, in order to avoid getting himself or anyone else in trouble when faced with controversy routinely intoned, “I hear nothing, I see nothing, I know nothing!” Much of the police evidence in this case struck me as reflecting awareness on the witnesses’ part that a line had been crossed in that underground garage, that there could be very serious consequences as a result and that “job one” was to avoid admitting to any observation that could incriminate them or any of their fellow officers. Not only were the police wagons being drawn into a circle; if their evidence about the great many things they did not see is to be believed, it appears that the various officers had blinders on.
This case is not Jackson, a case in which I stayed the charges under s. 7 of the Charter because of excessive police force. In that case the force used was more severe, as were the injuries, Mr. Jackson testified and I believed him for the most part despite him being of less than pristine background, while here the force was less, the officers were more credible and there was no defence version of events to believe or disbelieve. Every case is decided on its own facts. However, it would appear that a lot of police officers must have had Sergeant Schultz or his equivalent as their training officer.
There is a common meme used when berating a person who messes up a task completely: “you had one job to do!” That meme is instructive here. Depending on the context, each of us in our work may have single or multiple roles at any given time. For example, a police officer arresting a suspect has to assess the person’s behaviour, any level of resistance, historic risk factors arising in any arrest for the officer, his or her colleagues, the public at large and the detainee, use of force guidelines from their training and the Criminal Code concept of reasonable force, all while being alive to the detainee’s behaviour and any potential risks from external actors or circumstances.[^5] Many of these considerations may change materially in a short period of time.
By contrast, when a police officer (or any other person) steps in to the witness box they have “just one job” to do.
TELL THE TRUTH.
Period. Full stop. End of. Unvarnished. Unselective. The truth, the whole truth and nothing but the truth. It really is that simple.
Honesty and reliability are different concepts. In an ideal world, we hope for both, but in relation to reliability we accept that human beings will seldom if ever be perfect observers, retainers of memory and raconteurs. We are, however, entitled to expect that witnesses will not strait-jacket their memory by consciously “failing” to observe, record in the case of professional witnesses and recount all that happened to the best of their ability. This includes, in the case of police officers, observations of what their fellow officers did or did not do.
It is no part of any witness’s role to curate the truth. Being selective about what one records and narrates later in court is an abrogation of the witness’s role.[^6] It is an assault on truth. It is, quite simply, a form of dishonesty trying, not always successfully, to screen itself behind a disingenuous claim of having been singularly focused on something else. It is the witness’s job to be entirely honest and to recount what happened as well as circumstances permit them to, including for professional witnesses keeping notes that are reasonably comprehensive and reasonably comprehensible. It is not the witness’s job actively to omit details, such as the actions of other officers, for example, in an effort to influence the outcome of a trial by eliminating any possibility of divergent versions of what happened from one officer to another. Not only is it not the witness’s job to do that, any such selectivity or editing or curating or blinders is anathema to the role of any witness, including especially professional witnesses whose loyalty should be singularly focused on letting the trier of fact make a decision on a complete record.
How does this matter in the present case? In one sense, it does not—to the outcome. Every trier of fact is entitled to accept none, some or all of what any given witness says. In the present case, I am satisfied on all of the evidence I have heard that things happened as the witnesses said, that the police conducted a lawful stop, that Mr. Quirk twice “fled”, once by car and a second time by foot, that he invited Constable Byers to fight, that de-escalation techniques were not going to work because Mr. Quirk was clearly not amenable to them, that the police were entitled to use force in order to apprehend Mr. Quirk, that he was actively resistant throughout and that neither the level of force used nor the injuries sustained were disproportionate in all of the circumstances.
In another sense it matters a lot. Most of the witnesses professed to have not a clue about what other officers were doing in relation to Mr. Quirk. For example, Constable Byers was asked what Constable Arp was doing and the best he could offer was that Constable Arp was trying to help him regain control, but he could not say if Constable Arp was hitting or kneeing Mr. Quirk. When asked if any of the other officers struck Mr. Quirk, Constable Byers was again blind. There were four officers actively involved in restraining Mr. Quirk, one at his feet and the others on either side of his torso. Those latter officers were as close, or closer, to each other than one would be to a dinner companion across a two-person table. The officer at Mr. Quirk’s feet was not materially further away. Yet when it came to what any other officer did during the arrest of Mr. Quirk, they were all Sergeant Schultz. But Sergeant Schultz was funny. This is not.
In a trial I do not expect Constable A to have seen, recorded or recollected every detail of what Constable B was doing when, for example, Constable A has to focus significantly on his own efforts to restrain a detainee, gain control of his arm and hand and keep alive to anything that the detainee might have retrieved while his hand was under his body. But the idea that, kissing distance apart from his partner, he had no meaningful awareness at all of what his partner was doing perhaps two feet away, or less, simply beggars belief. It is more plausible that this form of supposed tunnel vision reflects a desire to avoid one officer’s memory undermining another officer’s testimony in order to achieve the officers’ desired objective, whatever that might be from one case to the other. But the officers’ desired objective when they step into the witness box should be singular: to tell the truth, the whole truth and nothing but the truth. Anything less is inconsistent with both their oath as witnesses and the oath they took upon becoming police officers.
Does this attitude reflect a fortress mentality on the part of officers, i.e. that “we’re the police and you are not”? Does it reflect a blind loyalty to their fellow officers, ahead of their duty to the public and their own honour and integrity? Does it reflect a failure in training on the part of police leadership to inculcate and retain officers’ unswerving fealty to public service? Who knows? What it does not reflect is Sir Robert Peel’s foundational notion that the police are the public and the public are the police. While it may aim to protect individual officers and individual cases, it will not always achieve those goals, will often discredit individual officers and will undermine the police service’s relationship with the community, upon whose trust the police are dependent.
Whether observations such as these will result in meaningful change is an open question. History suggests that police leadership will likely have no idea that these reasons were written since historically there is very little reporting back to command officers about what happens in the courts. One might think that in 2024 problems such as these would be obviated, albeit not entirely eliminated, through technology, but not all police services appear receptive to tools such as body-worn cameras that have been adopted by police services, large and small, elsewhere in Canada. While there are obvious costs for equipment, training and data storage, there are less obvious savings, which may be even greater, including the avoidance of trials and substantial savings in police witness salaries while in court and in court resources that do not benefit from avoidable trials. Clearly, the decision to implement such technology is ultimately a matter between the police service and the police services board, who may consider it optional. Ensuring that your officers testify honestly and completely, however, is not optional; it should, to the contrary, be one of the highest concerns of every police commander and every police services board member. In this case I found Mr. Quirk guilty of a significant offence that, in the words of the Supreme Court causes carnage in our society, an offence in a category that causes more loss of life and grief than any other offence in the Criminal Code. I made that finding not just because of the evidence, but also despite my significant misgivings about the evidence of several of the officers. The public, who pay for the police, are entitled to expect better.
Released: 10 May, 2024
[^1]: I have no idea if there is any member of the Niagara Regional Police Service named Schultz; if there is, that is not who I am referring to.
[^2]: The wording of Constable Byers’s notes as set out in cross-examination is more consistent with Constable Arp’s recollection than with Constable Byers’s testimony.
[^3]: I accept entirely, however, that Mr. Quirk was driving at a very high speed and that his driving was as described by Constables Byers and Arp.
[^4]: Mr. Quirk did not only suffer the bruising from the blows to his torso, but apparently also some abrasions to his face and elsewhere on his body, injury to his knee (and perhaps some dental injury, although the records suggest his dental care was overall very poor), none of which was shown to be at all surprising for a struggle by someone who was face-down on the ground.
[^5]: If the officers involved here genuinely had such singular focus on their own actions that they could not recall anything at all that other officers did in restraining Mr. Quirk, that would reflect a terrifying absence of situational awareness, which does rather seem to be a skill that any competent officer should have.
[^6]: Constable Byers also did not have notes about Mr. Quirk’s complaints of injury during the booking process. While it might be prudent for him to have made such an entry, the reality is that the entire booking process was videotaped, so there was a verbatim record of Mr. Quirk’s complaints available and I accept that some officers might decide not to make notes in those circumstances, although making notes would at least help with recollection at trial.