It seems a strange request, for the police to abide by the law, but more judges and magistrates should demand it more often. It is sometimes only the wigged and robed brigade who can deliver a blow for integrity and justice, particularly if Police Commissioners are not demanding their officers show moral as well as physical courage.
Judge wants police to abide by the law
By Barbara Etter*
It is reassuring and pleasing to see that the judiciary is being vigilant about police propriety and the nature of evidence presented to the courts.
According to the Hobart Mercury, Tasmanian Supreme Court Justice Alan Blow, in a pre-trial hearing of February 2013, said:
Police officers need to be made aware of the importance of conducting their investigations properly and in accordance with the law.
See: http://www.themercury.com.au/article/2013/02/25/373144_print.html
I couldn’t agree more!!
It seems that in a pre-trial hearing five months ago in September 2012, the same judge ruled critical evidence inadmissible because investigating officers had broken the law. It seems that the person involved was nevertheless found guilty at a new trial in November 2012 on the basis of other evidence. Convicted of stealing money (cheques and cash to the value of $83,000) from her Devonport employer, she was apparently jailed for nine months.
In considering the issue of impropriety and illegality under s.138 of the Evidence Act, the Judge considered section 42(3)(a) of the Police Service Act 2003, which states:
A police officer must comply with –
(a) all orders in the Police Manual …
He went on to find that if the relevant admissions had been made as alleged, that the evidence was obtained in contravention of an Australian law, namely section 42(3)(a). The finding emphasises the need for a proper and up to date Tasmanian Police Manual.
Justice Blow found the Sergeant conducting the investigation failed to inform the accused she was under arrest, did not allow her to phone a lawyer and unlawfully compelled her to submit to a search of her home. The judge also found the officer obtained evidence unlawfully by questioning her at work without making a video recording as required by legislation.
The Mercury article reports that Justice Blow made similar findings against the same officer over his dealings with a suspect when questioned in a 2007 drugs case.
The case, Tasmania v Woodberry [2012] TASSC 89, is reported at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/tas/TASSC/2012/89.html?stem=0&synonyms=0&query=woodberry. Justice Blow’s comments were made in September 2012. (But I note that the Austlii – laws online resource – report on the Internet states that it was last updated on 19 February 2013).
It will be interesting to see the Tasmania Police reaction to the article, if any. When I have made public criticisms of their investigative techniques on previous occasions, there has been a deathly silence.
It is very concerning to read that Justice Blow is also reported to have said that he did not expect Tasmania Police to take action against the officer for breaching the law and police procedures. This is a telling statement indeed. In considering whether to use his discretion to exclude certain evidence, the judge had to take a number of matters into account pursuant to section 138(3) of the Evidence Act. His Honour needed to consider:
… whether any other proceeding, whether or not in a court, has been or is likely to be taken in relation to the impropriety or contravention …
The judge found in that regard:
… there has been no suggestion that any proceeding has been or is likely to be taken in relation to the conduct of Sgt […]. My experience strongly suggests that there is almost no likelihood of any such action being taken.
Why is it that Tasmania Police is not expected to take action? Has it failed to take action in the past in similar matters? Did it take any action against the officer in 2007? This should be a real concern for the community. And where is the Integrity Commission in all of this (although it is acknowledged that their hands are pretty much tied unless a formal complaint is made to them)?
What effective oversight and review mechanisms are in place to ensure that the leaders of Tasmania Police do the right thing?
I have had personal experience in recent times which also demonstrate strong resistance in holding police officers to account.
As the gatekeepers to the entire criminal justice system, it is imperative that our police officers are honest and exhibit the highest standards of integrity. The Police Commissioner should be ensuring that proper and ongoing training is provided to all operational police officers on what are "bread and butter" activities for police (eg. arrest, detention, questioning).
He should also be moving to finalise and make available the Tasmanian Police Manual, which has now been unavailable to the public for 10 months, as it has supposedly been under review. The Police Commissioner is obliged to publish such a document pursuant to section 93 of the Police Service Act 2003. Concerningly, operational police officers have also been denied an updated and current manual for the same period of time.
Most importantly, given the comments of the judiciary in the above case, the Police Commissioner should be taking steps to send the clear message to his people that such illegal practices are intolerable and will be dealt with swiftly and appropriately.
It is time for change here in Tasmania in relation to police misconduct and impropriety, if this case is indicative of what is occurring more broadly in this State.
ENDS
* Barbara Etter APM is principal of BEtter Consulting and Adjunct Associate Professor of the School of Law and Justice at Edith Cowan University, Perth WA. She is a former Assistant Commissioner of Police in WA and former CEO of the Integrity Commission in Tasmania, where she is now based. Barbara is a member of CLA.
CLA comments: Whenever there occurs an apparent failure by the police in one jurisdiction to act as they should, as appears may be the case in this Tasmanian example, police in all other states and territories should review their own operations in the same area. Federation was meant to work best by states learning from each other. Police forces do not learn from each other’s omissions, excesses or failures, and therefore have to reinvent the wheel from state to state/territory at regular intervals, simultaneously re-laying the track to different gauges – Bill Rowlings, CEO.
Justice Blow is to be congratulated on his comments concerned with Police conduct in Tasmania. It came as no surprise that he believed that Police would not be disciplined. In NSW, citizens are more than aware of the shortcomings inherent in the NSW Police Service. Such shortcomings involve lazy and sloppy pre-arrest investigation often leading to the charging of innocent persons, particulary in the area of sexual assault and domestic violence in which Police rely on the word of a single individual. Police regularly assault citizens in the course of their duties, sometimes resulting in death with little or no accountability. Many members of NSW Police are racist, homophobic and misogynistic which in turn colour their dealings with the public. Police intelligence often consists of hearsay, rumour and innuendo sometimes based on the perceptions of jaded individuals. As NSW Police are exempt from amending personal information that is inaccurate, misleading, out of date or incomplete under section 27 of the PPIP Act, such information continues to be retained on COPS. Over the last 20 years complaints to the PIC and the Ombudsman have been routinely swept under the carpet by Govt bureaucrats and public servants in order to avoid proper scrutiny of Police conduct. It came as no surprise to learn that at the 2013 Mardi Gras an 18 year old gay male had his head slammed to the ground by Police because he tickled a female bystander notwithstanding that no complaint was effected by her. The so-called mechanisms of accountability continue to fail miserably in NSW. In conjunction with the Tasmanian findings, they suggest a much wider problem occurring throughout Australia in which security rather than liberty has become the dominant concern of governments.