role of the inspector

AANNNNUUAALL RREEPPOORRTT

FF OO RR TT HH EE YY EE AA RR EE NN DD EE DD

3300 JJUUNNEE 22001100

of 34

The Hon Amanda Fazio, MLC President of the Legislative Council Parliament House Macquarie Street SYDNEY NSW 2000

The Hon Richard Torbay, MP Speaker, Legislative Assembly Parliament House Macquarie Street SYDNEY NSW 2000

Dear Madam President & Mr Speaker, In accordance with section 102 of the Police Integrity Commission Act 1996, I hereby furnish to each of you for presentation to Parliament the Annual Report of the Inspector of the Police Integrity Commission for the year ended 30 June 2010. The Report has been prepared in accordance with the requirements of the Police Integrity Commission Act 1996 (“the Act”). Pursuant to Section 103(2) of the Act, I recommend that the Report be made public forthwith. Yours faithfully,

The Hon P J Moss QC Inspector of the Police Integrity Commission 1 September 2010

Inspector of the Police Integrity Commission 2010 Annual Report

of 34

CONTENTS Paragraph Numbers

PRELIMINARY OBSERVATIONS 1-16

ROLE OF THE INSPECTOR 17-25

POWERS OF THE OFFICE OF THE INSPECTOR 26-29

THE OFFICE 30-32

FINANCES 33-35

FREEDOM OF INFORMATION LEGISLATION 36-37

MONITORING THE OPERATIONS AND THE PROCEDURES OF THE COMMISSION

38-42

ASSESSMENT OF PROCEDURES OF THE COMMISSION 43-53

COMPLAINTS CONCERNING THE COMMISSION 54-65

FIVE COMPLAINTS OUTSTANDING AS AT 30 JUNE 2009 64

SUMMARY OF REPORT UPHOLDING COMPLAINT BY NSW POLICE ASSOCIATION

64 (i)-(vi)

INVESTIGATION ARISING OUT OF THE MALLARD REPORT 64 (vii)

SUMMARY OF REPORTS UPHOLDING COMPLAINTS BY OFFICERS PHILPOTT / DEISSEL / JENNINGS

64 (viii)–(xxx)

EIGHTEEN NEW COMPLAINTS 65

11 DISPOSED OF 65 (i)-(xi)

7 CURRENT 65 (xii)-(xviii)

THE COMMISSION’S ALFORD REPORT 66-70

LEGAL REPRESENTATION OFFICE 71-73

EXTENSION OF POLICE INTEGRITY COMMISSION’S JURISDICTION TO OVERSEE ASPECTS OF NSW CRIMES COMMISSION OPERATIONS

74-76


of 34

Paragraph Numbers

USE OF SUPPRESSION ORDERS 77-91

TELECOMMUNICATION (INTERCEPTION) ACT 1979 (Cwth) 92-94

ELECTRONIC RECORD KEEPING 95-96

CONTROLLED OPERATIONS 97-101

MEETINGS WITH PARLIAMENTARY COMMITTEES 102-107

PROBLEMS WITH THE LEGISLATION 108-109

END NOTES 110-113


of 34

PRELIMINARY OBSERVATIONS (1) This is my fourth Annual Report to Parliament as Inspector of the Police Integrity

Commission.

(2) The preliminary observations in paragraphs (3) - (16) hereof have appeared in previous Annual Reports, their purpose being to place on record the purpose and origin of the Office of the Inspectorate, which is perceived as being central to ensuring the accountability of the Police Integrity Commission. The Inspector’s previous Annual Reports may now be accessed by going to the Inspector’s website at [email protected] .

(3) In February 1996, as Royal Commissioner, Justice James Wood, AO, QC, published the first interim report of the Royal Commission into the NSW Police Service.

(4) Chapter five (5) of that report proposed the establishment of a new system to deal with Police complaints and corruption investigations in NSW.

(5) The proposal took into account that within the NSW Police Service (as it was then entitled)1

there was a pattern of corruption urgently to be addressed so that public confidence could be restored.

(6) There was an acceptance by the Royal Commission that a focused, sophisticated and aggressive approach was necessary to uncover and combat serious police misconduct and corruption. The question for determination largely centred on the model that would be appropriate for NSW and the agency or agencies which should be tasked with appropriate responsibility. The existing agencies and possible models were carefully considered.

(7) The Royal Commission concluded that the model which needed to be adopted was one in which:

(i) The NSW Police Service retained a meaningful role in dealing with management

matters, customer service complaints, and certain matters of misconduct;

(ii) There was both oversight of the NSW Police Service, and an external capacity and responsibility to investigate allegations of corruption and complaints made against Police, to be shared between the Police Integrity Commission and the Office of the NSW Ombudsman.

(8) It was recommended that a new “purpose built agency” (which came to be called the Police

Integrity Commission) should be established, as an essential plank of the reform process.

(9) It was emphasised that such an agency would:

(i) Provide a fresh approach to the problems;

(ii) Be purpose built, with specific focus upon the investigation of serious police misconduct and corruption; and

1 By the Police Service Amendment (NSW Police) Act 2002 No 51. Schedule 1, the title Police Service of New South Wales was changed to NSW Police.

http://[email protected]/�


of 34

(iii) Be free of the institutional baggage attached to an anti-corruption system which had failed to deal with corruption of the kind revealed by the Royal Commission.

(10) The principal function of the Police Integrity Commission was seen to be the detection and

investigation of serious police corruption and misconduct. A key function being to assemble admissible evidence when investigations revealed criminal conduct and to furnish such evidence to the Director of Public Prosecutions.

(11) An equally important step in the reform process was to ensure the retention of the jurisdiction of the Office of the NSW Ombudsman to oversight the NSW Police particularly in relation to the management of complaints and compliance with the law.

(12) Consideration was given to the accountability of the new and powerful body which the report recommended should be created. Since it would have the status of a Standing Royal Commission with similar powers, it was considered important to ensure that it would be open to public review and accountable to Parliament.

(13) The need for accountability recognised the fact that there is always a risk that an agency that is heavily committed to covert investigations, relies upon informants, and possesses powers which are both coercive and of a kind which might involve substantial infringement of rights of privacy, may overstep the mark.

(14) For this reason the Royal Commission recommended that there should be a “watchdog”, able to respond quickly and effectively to complaints of misconduct and abuse of power, without risking the secrecy of operations, or the confidentiality of informants and witnesses. That “watchdog” was designated the Inspector of the Police Integrity Commission.

(15) Hence it was proposed that the Office of the Inspector of the Police Integrity Commission be created by the legislation governing the agency. The Office, it was suggested, should be given powers to:

(i) Audit the operations of the Police Integrity Commission;

(ii) Report to Parliament on matters affecting the Police Integrity Commission and its

operational effectiveness and needs.

(iii) Deal with complaints of abuse of power and other forms of misconduct on the part of its employees;

(16) Part 6 of the Police Integrity Commission Act 1996 contains statutory provisions which

confer such powers on the Office of the Inspector.


of 34

ROLE OF THE INSPECTOR (17) The position of the Inspector of the Police Integrity Commission (the Inspector) derives its

authority from the Police Integrity Commission Act 1996 (the Act).

(18) The Inspector is appointed by the Governor with the advice of the Executive Council. The Joint Committee on the Office of the Ombudsman and the Police Integrity Commission is empowered to veto the proposed appointment which is required to be referred to the Committee by the Minister2

.

(19) The Office of the Inspector may be a full-time or part-time Office, according to the terms of the appointment. A person is eligible (if otherwise qualified) for re-appointment but may not hold the Office of Inspector for terms totalling more than 5 years.

(20) Following the retirement on 12 June 2002 of the first-appointed Inspector, the Hon M D

Findlay, QC, at the conclusion of his five-year term, on 12 June 2002 the Hon Morris Ireland, QC, was appointed as Inspector of the Police Integrity Commission for a period of three years, and his term was subsequently extended to 31 August 2005. On 1 September 2005 the Hon James Wood, AO, QC, was appointed as Inspector of the Police Integrity Commission for a period of three years, similarly on a part time basis, following the expiration of his predecessor’s term of office. On the 22 November 2006 I was appointed as Inspector of the Police Integrity Commission for a period of five years, similarly on a part time basis, following the resignation of my predecessor on 10 November 2006.

(21) The Inspector’s duties under the Police Integrity Commission Act 1996 are to investigate

complaints against the Commission’s staff, to audit its operations, effectiveness and compliance with the law, and to report to the Joint Committee on the Office of the Ombudsman and the Police Integrity Commission. That Committee has the function of monitoring and reviewing the exercise by the Commission and the Inspector of their respective functions3

.

(22) The Inspector is required to report annually to Parliament and may make Special Reports on any matters affecting the Commission or on any administrative or general policy matter relating to the functions of the Inspector.4

www.inspectorpic.nsw.gov.au

On 2nd April 2009 I delivered a Special Report to the NSW Parliament: this Report may be accessed via the Inspector’s website:

(23) The Inspector’s principal functions as provided by Statute5

are:

(i) to audit the operations of the Commission for the purpose of monitoring compliance with the law of the State; and

(ii) to deal with (by reports and recommendations) complaints of abuse of power, impropriety and other forms of misconduct on the part of the Commission or officers of the Commission.

2 Schedule 2 Police Integrity Commission Act 1996 and Section 31BA of the Ombudsman Act 1974 3 Section 95(1)(a) Police Integrity Commission Act 1996 4 Sections 101, 102 of the Police Integrity Commission Act 1996 5 Section 89 of the Police Integrity Commission Act 1996

http://www.inspectorpic.nsw.gov.au/�


of 34

(iii) to assess the effectiveness and appropriateness of the procedures of the Commission relating to the legality or propriety of its activities;

Section 89(1)(b) authorises the Inspector to deal with complaints of relevant misconduct, including, but not limited to, complaints alleging abuse of power and impropriety. The latter expression would appear to go beyond the concept of abuse of power; the Shorter OED defines “impropriety” as including “improper conduct” and “inappropriateness.” Section 89(1)(c), again picks up the notions of “propriety” and “appropriateness”, so that a further principal function of the Inspector is to assess the effectiveness and appropriateness of the procedures of the Commission relating to the legality or propriety of its activities. Thus, unlike the Inspector’s “audit” functions under Section 89(1)(a), Section 89(1)(c) is not confined to assessing the lawfulness of the Commission’s relevant procedures, but extends to the effectiveness and appropriateness of those procedures.

It is also important to notice limitations within the Inspector’s functions in respect of the formation of opinions and recommendations by the Commission contained in the Reports of the Commission published pursuant to Section 96 of the Act. For example, it seems clear that the Inspector’s function does not extend to reviewing an investigation conducted by the Commission, including the evidence relevant to that investigation, with a view to reaching a conclusion as to whether the opinions formed by the Commission were justified. In other words, the functions of the Inspector do not include a “merits review” of the opinions and assessments of the Commission come to as a result of an investigation by the Commission. From this it seems to follow that the relevant functions of the Inspector are concerned primarily with how the Commission exercises its powers under the Act rather than what opinions and conclusions the Commission forms or reaches in the exercise of those powers. However, a failure to consider relevant evidence by the Commission, or a failure to accord procedural fairness to a witness, may have a bearing as to the opinions formed by the Commission which may not have been so formed had the omission not occurred. Such a case would fall within Section 89(1)(c) and also within Section 89(1)(b).

(24) The Inspector may exercise the functions of the Office on the Inspector’s own initiative, at

the request of the Minister, in response to a complaint made to the Inspector, or in response to a reference by the Ombudsman, the ICAC, the New South Wales Crime Commission, the Joint Committee or any other agency6. The Inspector is not subject to the Commission in any respect7

.

(25) “The Minister” referred to in paragraph (24) is the Minister for Police. The Honourable Tony Kelly, MLC, was the Minister during the period 1 July 2009 to 13 September 2009. The Honourable Michael Daley, MP, has been the Minister for Police since 14 September 2009.

6 Ibid, s89(2) 7 Ibid, s89(3)


of 34

POWERS OF THE OFFICE OF THE INSPECTOR (26) To perform its function, the Office of the Inspector has been given extensive powers to

investigate any aspect of the Commission’s operations or any conduct of officers of the Commission8

.

(27) The Office of the Inspector is also empowered to make or hold inquiries and for that purpose it has the powers, authorities, protections and immunities of a Royal Commissioner9

. It was not found necessary to hold a formal inquiry involving hearings during the reporting year. The approach adopted by this Office has traditionally been to restrict the use of costly, time-consuming, formal inquiry hearings to complaints which necessarily involve a formal hearing in order to resolve some factual conflict critical to the complaint.

(28) The Legal Representation Office (as to which, see paragraphs (71)-(73)) has advised the Office of the Inspector that they have approval to consider applications for legal advice and representation for persons whose testimony at a formal hearing may warrant legal representation.

(29) The question of extending the jurisdiction of the Office of Inspector to authorise investigation of alleged impropriety or misconduct by non-PIC officers engaged in joint or related operations with PIC officers was dealt with in the Annual Report of the Hon Morris Ireland QC for the year ended 30 June 2005, and in the Annual Report of the Hon James Wood, AO, QC, for the year ended 30 June 2006, and was referred to in my 2007 Annual Report at paragraphs (75)-(82) thereof. As far as I am aware, there have been no further developments in respect of this matter since then.

THE OFFICE (30) The Inspectorate has suitable office premises, within the Sydney Central Business District,

separate from the Police Integrity Commission which is located at 111 Elizabeth Street, Sydney. The postal address of the Inspectorate is GPO Box 5215, Sydney NSW 2001. The office telephone number is (02) 9232 3350 and the facsimile number is (02) 9232 3983. The website address is www.inspectorpic.nsw.gov.au. This includes a facility whereby complaints may be entered and automatically forwarded to the Inspectorate. The email address is [email protected]. One full-time staff member is engaged in the office. Access may be gained to the Inspector’s Annual Reports in past years, as well as other Reports, by going to the Inspector’s website where such reports have been posted.

(31) The office operates appropriate computer systems, which are currently maintained, and recently updated, by the Department of Premier and Cabinet.

(32) I also have a small office at the Police Integrity Commission where I have full access to the

electronic records of the Commission. There I can access, and do so, typically, on a weekly basis, in complete security, the Commission’s records of its operations.

8 Ibid, s90 9 Ibid, s91


mailto:[email protected]�


of 34

FINANCES

(33) As from 1 July 2009, the financing of the office of the Inspectorate falls within the operating

expenses of the Department of Premier and Cabinet. (34) As the Inspector of the Police Integrity Commission is not a Department nor a Department

Head for the purposes of the Annual Reports (Departments) Act 1985, the requirements placed by that Act on those bodies do not apply to the preparation of an annual report by the Inspector.

(35) Similarly, the provisions of the Annual Reports (Statutory Bodies) Act 1984 do not apply

since the Inspector is not a person, group of persons or body to whom Division 3 of Part 3 of the Public Finance and Audit Act 1983 applies nor is it prescribed as a statutory body by the Annual Reports (Statutory Bodies) Act.

FREEDOM OF INFORMATION LEGISLATION (36) The Office did not receive any FOI applications in 2008/09 for documents held by this

Office. There is therefore no information to give in terms of clause 9(1) of the Freedom of Information Regulation 2000 and Appendix B in the FOI Procedure Manual.

(37) As from 1 July 2009, the Inspector of the Police Integrity Commission is part of the Department of Premier and Cabinet for the purposes of the reporting requirement in Part 2 of the Freedom of Information Act 1989. Hence, this agency's "policy documents" are included by the Department in the Summary of Affairs for the Department provided to the Government Printing Service for publication in the Government Gazette.

MONITORING THE OPERATIONS AND PROCEDURES OF THE COMMISSION (38) In this Report the term "monitoring" is used to include the auditing of the operations of the

Commission for the purpose of reviewing compliance with the law of the State, and Commonwealth, and the assessment of the effectiveness and appropriateness of the procedures of the Commission relating to the legality or propriety of its activities.

(39) Monitoring and related activities have, typically, included weekly meetings with the Commissioner of the Police Integrity Commission, Mr John Pritchard, and the Commission Solicitor, Ms Michelle O’Brien, to discuss relevant issues and strategies, the regular review of representative samples of operational files, and the taking of necessary steps to satisfy myself as to the justification for the exercise of the Commission’s various investigative powers. As needs arise separate discussions with senior officers of the Commission may take place.

(40) In fulfilling my function under s.89(1)(a) and (1)(c) of the Act, I have available to me a designated office at the Commission where I have a computer providing electronic access to all the material on file at the Commission (with the exception of Telecommunication Interception (T.I.) material). This includes the records of the Commission’s various operations. Periodically and at random, I access such operations in absolute security. I have a print-out facility should this be required.


of 34

(41) My regular meetings with the Commissioner and the Commission Solicitor identify the

operations in which there has been activity, such as the issue of new warrants. This enables me to examine retrospectively such new warrants to ensure that all necessary approvals and administrative actions were completed in the process of obtaining and executing a warrant. In doing so I am also able to consider issues of propriety.

(42) The Commissioner has provided me with unreserved access to the records of the Commission (save for Telecommunication Interception material) and to any officer of the Commission whom I may wish to interview. Subject to my opinions expressed in my Report upholding complaints by the Police Association of NSW in respect of material allegedly published by the Commission in breach of the Listening Devices Act NSW (as to which see paragraph 64 (i)-(vi) hereof), the operations of the Commission, as observed by me in respect of the reporting period have been in compliance with the laws of the State.

ASSESSMENT OF PROCEDURES OF THE COMMISSION (43) Pursuant to s.89(1)(c) of the Act, the Inspector has the function of assessing “the

effectiveness and appropriateness of the procedures of the Commission relating to the legality or propriety of its activities.”

(44) This statutory requirement was taken from and is, in its terms, almost identical with s.8(3)(a)(iii) of the Commonwealth “Inspector-General of Security and Intelligence Act 1986”.

(45) Subject to specific criticisms of the Commission’s practices and procedures as indicated in this Report, in particular in relation to my Reports upholding complaints concerning the Commission (see below), I assess the general procedures and practices of the Commission, as I have seen them, in respect of the reporting period, to be effective and appropriate relating to the legality and propriety of its activities.

(46) Each operation of the Commission involves a preliminary assessment by the Commission through its Operation Advisory Group (OAG), usually comprising the Commissioner, Assistant Commissioner, Commission Solicitor and Director of Intelligence and Executive Services.

(47) Concerns as to timeliness in some of the Commission's procedures and the response thereto, continue to be closely monitored. The Commission, obviously, has limited resources and this may sometimes result in priorities having to be determined in respect of those resources, which may mean that some operations are placed on hold.

(48) Whenever it appears to me to be desirable to do so, I have discussions with the Commissioner focussing on this question of timeliness and on the allocation of resources, including the selection of matters for investigation or review with a view to achieving the proper discharge of the Commission’s statutory responsibilities.

(49) As part of my assessment, I have regard to the records of those operations requiring legislative sanction. For example, I receive regular reports regarding applications for warrants under the Surveillance Devices Act 2007. Also, I receive reports on Notices issued to obtain information (s.25 of the Act); Notices to obtain documents or other things (s.26); Authority to enter public premises (s.29); the summoning of witnesses (s.38); the issue of


of 34

Search Warrants, and the issue of authorities to conduct Controlled Operations (see further, paragraphs (97)-(101) hereof). I inform myself through discussion with the Commissioner and audit of the Commission’s records, so as to be satisfied that such powers are fairly and appropriately exercised.

(50) Applications to obtain information (s.25 of the Act) or to obtain documents or other things (s.26 of the Act) can only be made “for the purposes of an investigation.” The Commission has in place systems requiring requests for such applications to be in writing and to identify the relevant investigation. These may be seen by me, and may be the subject of discussion at my weekly meetings with the Commissioner.

(51) The Commission has issued a code of conduct which sets out the standards of behaviour that all Commission staff are to observe. Additionally it has internal Committees concerned respectively with an audit of its activities and human resource functions, to the minutes of which I have access.

(52) The security of the operations of the Commission is of paramount importance. The reasons for such security are made clear in the final report of the Royal Commission. It is also important that the exercise of the Inspector’s functions should not put at risk the confidentiality of informants and witnesses. From my observations, I have no reason to be concerned in relation to the adequacy of the Commission’s security practices and safeguards, or those relating to the security of my own office.

(53) The Act provides that information, acquired through the exercise of the Inspector’s functions, shall not be divulged except for the purposes of and in accordance with the Act or otherwise in connection with the exercise of the Inspector’s functions under the Act, or in accordance with a direction of the Inspector certifying that it is necessary to do so in the public interest.10

10 Section 56 of the Police Integrity Commission Act 1996


of 34

COMPLAINTS CONCERNING THE COMMISSION (54) An important function of the Inspector is that of dealing with (by reports and

recommendations) complaints of abuse of power, impropriety and other forms of misconduct on the part of the Commission or officers of the Commission11

.

(55) Section 90 of the Act empowers the Inspector to investigate any aspect of the Commission’s operations or any conduct of officers of the Commission and entitles the Inspector to full access to the records of the Commission. It provides that the Inspector “may investigate and assess complaints about the Commission or officers of the Commission”.

(56) Section 91 of the Act provides that the Inspector may make or hold inquiries for the purposes of the Inspector’s functions.

(57) Generally, such inquiries involve seeking information and submissions in turn from the parties to the complaint (usually the Complainant, on the one hand, and the Commission on the other) until the gravamen of the complaint is clearly established and both parties have had every reasonable opportunity to present relevant material and arguments on the issues identified. Usually it is also necessary for the Inspector to access by computer relevant electronic records of the Commission.

(58) Other inquiries may require the holding of a formal hearing. Generally, a formal hearing exercising the powers of a Royal Commissioner as conferred by Division 1 of Part 2 of the Royal Commissions Act 1923 will only be held where it is necessary by that means to resolve a disputed issue of fact critical to the inquiry. Such hearings may be small scale and appropriately held in the Inspector’s office. For this purpose, the Ministry for Police has in the past made arrangements for a court reporter from the Attorney General’s Department to be available for such hearings. It may, on the other hand, require a larger scale hearing. The circumstances may indicate that it should be public or that it should be private. If public, the facility of a Commission hearing room may be appropriate to be arranged pursuant to section 92(4)(a) of the Act. On the other hand, it may be more appropriate for a hearing room to be arranged through the Attorney General’s Department, at a venue which is seen to be quite independent of the Commission. It has not been necessary to hold any such hearing during the year under review. The fact that none of the determined complaints summarised below, in so far as they concern the Commission, led to full, as opposed to preliminary inquiries, indicates that these more formal processes are not invoked lightly. However, such preliminary inquiries may on occasions lead to individual matters being either reconsidered or considered afresh by the Commission. Experience establishes that almost all complaints can be dealt with by preliminary inquiry, and such complaints have been treated as putative complaints.

(59) During the reporting period 18 complaints or putative complaints were received by the Inspector’s office, and a further 5 were carried over from the previous reporting period.

(60) Unless otherwise indicated below, each complaint has been assigned an identifying code, which preserves, as far as possible, the anonymity of the Complainant, but indicates the year in which the complaint was received, and the numerical position of the complaint in relation

11 s. 89(1)(b) of the Act


of 34

to the totality of complaints received in that particular year. For example, “C01-09” denotes that that particular complaint was the first complaint received by the Inspectorate in 2009.

(61) As will be obvious from the summary of the complaints below, a number of the complaints alleged misconduct by NSW Police, and were therefore outside the Inspector’s jurisdiction. In such cases, where there was also a complaint concerning the Commission, it was usually in the form of an objection by the Complainant to the Commission’s having referred the complaint to NSW Police for investigation, in some cases under the supervision of the Ombudsman, or in very few cases, such investigations to be oversighted by the Commission, rather than the Commission itself investigating the relevant allegations. Such objections are, of course, difficult to sustain, because the Commission has a discretion as to whether a particular matter justifies an investigation by the Commission, rather than a referral to NSW Police for investigation. Unless it can be clearly shown that the exercise of that discretion has miscarried, such objections must be overruled by the Inspector.

(62) Shortly after my appointment I drafted an initial pro-forma letter to Complainants which set out the nature of the Inspector’s jurisdiction, and which makes it plain that the Inspector has no power to investigate complaints against NSW Police. The letter attempted to explain, in a summary way, the role of the Commission and the Ombudsman, respectively, in referring complaints received concerning NSW Police, to NSW Police for investigation, which investigations may, on a very few occasions, be oversighted by the Commission, or monitored by the Ombudsman, the latter having the principal role in supervising the investigation of such complaints by NSW Police, and having specific powers under Part 8A of the Police Act, to monitor such investigations, which powers are not conferred on the Commission.

(63) The complaints referred to above are summarised below. Generally, such summaries attempt to avoid identifying Complainants or confidential informants. However, as will be observed from the material below, some Complainants have expressly elected to be identified as such in this Annual Report in respect of their complaints. There being no obvious countervailing considerations, those requests have been acceded to.

(64) AS TO THE 5 COMPLAINTS OUTSTANDING AS AT 30 JUNE 2009

(Each of these complaints was referred to in the Inspector’s 2009 Annual Report)

C03-07: The Complainant in this matter is Mr Bradley Hosemans (a former Detective Sergeant in NSW Police) who has elected to be identified by name in this Annual Report. The complaint as formulated in the Draft Report comprises a number allegations of apprehended bias towards the Complainant by the Commission, as well significant breaches by the Commission of its duty to accord the Complainant procedural fairness. The PIC investigation of an anonymous allegation concerning this Complainant commenced in September 2005 (Rani Report iii). The evidence called by the PIC concluded on 14 November 2006. Counsel Assisting’s submissions were dated 3 May 2007. The Rani Report was delivered to NSW Parliament in December 2007, some 2 years and 3 months after the commencement of the investigation. No criminal prosecution has been commenced against any person, nor has any action been taken by the Commissioner of Police under the Police Act, despite the PIC’s recommendations in that regard in Section 10 of the Rani Report. The investigation found not a shred of credible evidence to support the anonymous allegation which gave rise to the investigation, and which, according to the Complainant has caused a great deal of damage to his reputation. My investigation into this complaint has reached the stage where I have prepared a Draft Report which has been provided for


of 34

comment, if any, to the Complainant and his solicitor, the Commission, and, in view of express or implied criticisms therein in respect of the following persons, to the former PIC Commissioner who presided during hearings highly relevant to some aspects of the complaint (to date, all attempts at making contact with the latter have been to no avail) Counsel Assisting (as he then was), and Counsel who appeared for the Complainant. Each of Counsel Assisting, and Counsel, have responded to the Draft Report, but I am still awaiting the Commission’s response thereto (although there has been considerable correspondence between myself and the Commission during the progress of my investigation of these complaints, from which the Commission’s general response is clear). I will in due course take all such responses into account, including in producing Draft Conclusions to the Report, which will likewise be provided for comment to the abovementioned recipients. Again, all comments, if any, will then be taken into account by me before finalising the Report.

THE REMAINING FOUR COMPLAINTS OUTSTANDING AS AT 30 JUNE 2009

The Complainants being The Police Association of NSW; and Police Officers Philpott, Deissel and Jennings. As to the remaining four complaints outstanding as at 30 June 2009, in which in each case the Complainants have elected to be identified by name, each is now the subject of a Report upholding the complaints, in the case of the Police Association that the Commission was in breach of the Telecommunications (Interception and Access) Act 1979 (Cth), and the Listening Devices Act (NSW), in respect of the use made of the published material the subject of the Complaint, and that a Senior Officer of NSW Police was denied procedural fairness when he appeared before the Commission, and in the case of the remaining complaints that the Complainants were denied procedural fairness by the Commission when each appeared as a witness before the Commission: A copy of each of these Reports is now published in full on the Inspector’s website – www.inspectorpic.nsw.gov.au. However, for convenience, I have set out below summaries of each of these Reports together with commentary thereon. Summary of Report Upholding Complaint by NSW Police Association

(i) My Report in this matter is dated 28 January 2010 and, as noted above, is

published in full on the Inspector’s website -- www.inspectorpic.nsw.gov.au.

(ii) In effect, that Report upheld a complaint by the NSW Police Association (“the Complainant”) that the Commission had published material at a public hearing during the Mallard investigation hearings, on 31 May 2007 and 1 June 2007, respectively, and expressly released the same to the Media, being on the one hand lawfully intercepted private telephone conversations, obtained pursuant to warrants under the Telecommunications (Interception and Access) Act 1979 (Cth), and on the other lawfully and secretly recorded conversations pursuant to warrants issued under the Listening Devices Act (NSW), in each case in breach of the relevant Statute.

(iii) My Report found that the relevant telephone intercept material (contained in Exhibit 26) objected to by the Complainant, comprised derogatory and insulting




of 34

references to three serving senior NSW Police Officers, and that the relevant listening device material (contained in Exhibit 10B) objected to by the Complainant also comprised similar material referring to another senior NSW Police Officer, and that in addition the latter had been denied procedural fairness by the Commission for the reasons set out in my Report.

(iv) In paragraph 49 of my Report, I expressed my overall conclusions in the following terms:

The intercept material complained of in Exhibit 26 (identified by page references in paragraph 11 hereof) and the recorded material complained of in Exhibit 10B (identified or referred to in paragraph 10 hereof) was, in my opinion, not capable of furthering the Commission’s investigation in any way and was therefore of no relevance, and accordingly its admission into evidence in a public hearing, in particular, could not, in my opinion, be justified on any basis. In particular, it follows that the use made of this material by the Commission in publishing it as part of Exhibit 26 could not be said to be a “permitted use” and was therefore not authorised by the legislation. Further, as already noted (paragraph 35, above), the presence of material in the recorded private conversations irrelevant to the Commission’s investigation was known to the Commission prior to its publication as part of the relevant Exhibits, so that that conduct could not be put down to an oversight on the part of the Commission. The potentially damaging effect on the reputations of those involved ought, in my opinion, to have been anticipated by the Commission, as also the use to which this material would be likely to be put by the recipient journalists “avid for sensation and entertainment” (per Kirby P at page 106 of Fairfax). So, too, that the publication of such material had the potential to damage and disrupt the working relationship between senior NSW police officers, and to undermine their standing in the eyes of junior officers who might be answerable to them, contrary, in my opinion, to the public interest clearly involved. No part of this offending material was included in the written submissions of Counsel Assisting or, fortunately, made its way into the Commission’s Mallard Report (a further indication, if one were thought necessary, of its irrelevance).

(v) I made three recommendations to the Commission arising out of my Report, the

first of those being in the following terms:

In the light of my conclusions, I recommend that the Commission give serious consideration to the offer of a (very belated) public apology to Inspector Wood, for the injury to feelings and reputation caused by the publication of the material referred to above in Exhibit 10B, making it clear that there never was a scintilla of evidence, not even an assertion, of wrongdoing on his part, and also to Messrs Goodwin, Redfern and Hazzard, for the publication of the gratuitously insulting references to them in the intercept material Exhibit 26.

(vi) Subsequently the Commission advised me that it declined to accept that

recommendation on the basis that it generally “rejects the criticisms contained in the Draft Report” (the reference to “the Draft Report” being a reference to a copy


of 34

of the Report provided to the Commission by me for comment by the Commission prior to finalisation of the Report). Subsequently, I wrote to the Commonwealth Director of Public Prosecutions, seeking advice as to whether, assuming my findings as to breach of the Telecommunications (Interception and Access) Act 1979 (Cth) are well founded, proceedings should be commenced by the ODPP against the Commission or any Officer thereof, and I am presently awaiting receipt of that advice.

Investigation of particular intercept material published in Mallard Report

(vii) As recorded in my last Annual Report (page 20), arising out of particular material

published in the Commission’s Mallard Report, I have of my own initiative (as distinct from having received a relevant complaint in respect of the matter) commenced an investigation into the circumstances in which the Commission published in that Report, the telephone conversations of certain persons together with the identity and personal details of those persons, apparently on the basis that such persons were parties to a telephone conversation with a person being investigated by the Commission, and also details sufficient to identify another person referred to in those conversations together with potentially adverse material relating to that person. Regrettably, although I have notified the Commission of this investigation, and the reasons therefor, time constraints to date have not permitted me to produce a Report dealing with the matter. It is, however, my intention to do so in the ensuing 12 months.

Summary of Reports Upholding Complaints by Officers Philpott/Deissel/Jennings

(viii) Each of these Reports, upholding complaints of a failure to accord procedural

fairness to these officers by the Commission, is dated 9 June 2010, and, as noted above, each is published in full on the Inspector’s website -- www.inspectorpic.nsw.gov.au .

(ix) Each of these complaints had its genesis in what was published concerning these Officers in the Commission’s Whistler Report published by the Commission as a public Report on 21 December 2005, a copy of which is published on the Commission’s website -- www.pic.nsw.gov.au.

(x) Prior to receiving these three complaints, I had received related complaints arising out of the publication of the Whistler Report from Detective Briggs, which resulted in my publishing two Reports upholding those complaints, each of those Reports being published on the Inspector’s website -- www.inspectorpic.nsw.gov.au .

(xi) Each of the four officers mentioned above (Officers Briggs, Philpott, Deissel and Jennings), was at all relevant times based in Wagga, as were a number of other Police Officers, in all seven, each made the subject of what was described as a “substantial allegation” in the Whistler Report at 9.7(b) of that Report (see below). As a result of adverse opinions and recommendations concerning these Officers published by the Commission in the Whistler Report each of the four Officers named above (and Officer Kelly: see below) was issued by NSW police with a Section 173 Notice under the Police Act, 1990.


http://www.pic.nsw.gov.au/�



of 34

(xii) On 16 December 2009, four years after the publication of the Whistler Report, the

Commission presented to the NSW Parliament, and thereafter published, the Alford Report, the stated purpose of which was “to identify publicly the breaches of procedural fairness which occurred in the Whistler

Report and make public the fact that those passages which have been identified as containing the breaches are invalid and should not have appeared.”

(xiii) The Alford Report identified, so far as relevant, Officers Briggs, Philpott and Deissel as having been denied procedural fairness by the Commission in relation to what had been relevantly published concerning them in the Whistler Report and, in effect, withdrew the recommendation made four years earlier for the issue of the said Section 173 Notices, despite the fact that on the basis of such recommendations, NSW Police had issued the relevant Section 173 Notices some four years earlier.

(xiv) Thus in the Alford Report the Commission conceded in the case of Officers Philpott and Deissel, that each had been denied procedural fairness by the Commission in certain respects: in the case of Officer Philpott see my Report dealing with her Complaints at paragraph 25 iv)-vii). In the case of Officer Deissel, see my Report dealing with her Complaints at paragraph 25 iv)-vii).

(xv) However, in the case of Officer Jennings, she was not included in the Alford Report: as to this see my Report dealing with her Complaints paragraph 26 v)-vi).

(xvi) Although, as I have mentioned, in the case of Officers Philpott and Deissel, the Commission’s Alford Report did concede particular instances of a failure to accord those Officers procedural fairness, in my opinion, the Officers were entitled to additional concessions by the Commission that procedural fairness had been denied them in other respects. In the case of Officer Philpott, see my Report dealing with her Complaints at paragraph 25 xii)-xiii). In the case of Officer Deissel, see my Report dealing with her Complaints at paragraph 25 xii)-xiii).

(xvii) In the case of Officer Jennings I have summarised my opinions and conclusions as to the relevant portions of the Whistler Report concerning this Complainant which in my opinion were published in breach of the rules of procedural fairness at paragraph 62 of my Report.

(xviii) In each of these three Reports, I have expressed the view that the Alford Report should be seen as incomplete and inadequate in that the stated purpose of that Report, namely, “to identify publicly breaches of procedural fairness which occurred in the Whistler Report and make public the fact that those passages which have identified as containing the breaches are invalid which should not have appeared”, has not been carried into effect, see, eg, paragraph 26 v) of my Report dealing with Officer Jennings’ Complaints.

(xix) Apart from the specific Complaints made to my office by Officers Philpott, Deissel and Jennings, concerning the material published about them in the Commission’s Whistler Report, as a result of my examination and investigation of those Complaints over a period of some months, my attention was also drawn to the opinions expressed by the Commission in Section 10 of the Whistler Report under the sub-heading “The decision to call a critical incident”, paragraphs 10.31-


of 34

10.36. I first drew attention to this particular problem in my Reports upholding Detective Briggs’ complaints that he had been denied procedural fairness in respect of what was published concerning him in the Whistler Report (see above).

(xx) For the reasons set out in my three Reports: Philpott paragraphs 55-62; Deissel paragraphs 56-63; and Jennings paragraphs 50-57, it appears to me that the opinions expressed in that portion of the Whistler Report conflict with, and contradict, the opinions identified earlier in the Whistler Report which opinions seem to me to be highly relevant to the so-called substantial allegation published at 9.7(b) of the Whistler Report.

(xxi) As a reference to that “substantial allegation” in the Whistler Report demonstrates, that not only included Officers Philpott, Deissel and Jennings, but Officers Murphy, Briggs, O’Neill and Kelly as well. That “substantial allegation” was in the following terms: “That on 6 February 2003, Murphy, Briggs, Philpott, Deissel, Jennings, O’Neill and Kelly being officers involved in a critical incident, each failed in their duty to ensure that the critical incident was dealt with in accordance with established guidelines for the management and investigation of critical incidents.”

(xxii) Thus, it seems to me that quite apart from the Complaints made by Officers Philpott, Deissel and Jennings concerning the publication of the material in the Whistler Report to which they have objected, it also appears that in considering the so-called “substantial allegation” comprised in the 9.7(b) the Commission failed to take into account the opinions expressed in Section 10 of the Whistler Report, referred to above, which opinions seem to be consistent with the evidence, expressly rejected by the Commission, given by each of the Officers named in 9.7(b) that the relevant guidelines, for the reasons given by these Officers, left in doubt whether the Hathaway incident up until the time of Hathaway’s arrest and his subsequent admission to hospital, ought to have been recognised by the Officers as a “critical incident” within the meaning of the guidelines.

Recommendations to Police Integrity Commission

(xxiii) Reproduced below are paragraphs 65 and 66 of my Report in the matter of

Jennings. Each of my other two Reports in the matters of Philpott and Deissel included similar material –

RECOMMENDATIONS

Given the extensive nature of the damaging and unauthorised material published in the Whistler Report, as conceded by the Commission in the Alford Report concerning the four police officers identified in that Report, and further having regard to the breaches of procedural fairness concerning the Complainant and Officers O’Neill and Kelly as identified by me in this Report, and having regard also to my two Reports dealing with the complaints of Officers Philpott and Deissel published simultaneously with this Report, and to the fact that those Reports identify seven Officers in all (being those Officers referred to in 9.7(b) of the Commission’s


of 34

Report) as having been denied procedural fairness as a result of the Commission’s procedures and what was published concerning those officers in the Whistler Report and the damage thereby inflicted on the reputations of these seven Officers, and also taking into account that for the reasons set out in my Reports the content of the Whistler Report should be seen to be to a considerable extent incoherent and internally inconsistent, lacking crucial cross-referencing, and consequently substantially unreliable, there would not seem to be the slightest justification for the continued exhibition by the Commission of this unauthorised, unjustified and misleading material on the Commission’s website where it may be viewed by all and sundry, thereby having the potential to continue to inflict damage on the reputation of these officers, as well as to mislead, and that accordingly the only acceptable and ethical course open to the Commission, in my opinion, is for the Whistler Report to be removed forthwith from the Commission’s website in its entirety, with an explanatory note being substituted explaining clearly and fully the reasons for its removal, and that in a proper case an application for access to the Whistler Report can nevertheless be made to the Commission, and ensuring that any such applicant be made aware by the Commission of the existence of my Reports herein and the availability of those Reports on the Inspector’s website.

The Commission’s Response to the abovementioned Recommendations

Prior to the publication of this Report I provided the Complainant and the Commission with copies of earlier Drafts for the purpose of enabling comment to be made in respect of those Drafts by the parties. I have paid careful regard to and have taken into account all such comment as the parties have provided me with in settling the content of this Report. The Commission has advised me that apart from the breaches of procedural fairness acknowledged in the Commission’s Alford Report it does not accept as correct any of the various breaches of procedural fairness in respect of the Complainant or the other Officers identified by me in this Report. The Commission has further advised me as follows: Your recommendation is noted. For reasons which have been extensively detailed in this and previous submissions by the Commission in response to the various documents prepared in relation to this complaint the Commission does not consider that it is either appropriate or necessary to remove the Whistler Report from its public website. To the extent that the Whistler Report contains statements about persons that the Commission has previously conceded were made in breach of the rules of procedural fairness then these have been addressed in the Alford Report. As was indicated in its letter to you of 25 February 2010 (at paragraph 38) the Commission will also amend the notations on its website relating to both the Whistler and the Alford Reports to state that the Alford Report identifies breaches of procedural fairness which occurred in


of 34

the Whistler Report with the result that parts of the Whistler Report are accordingly invalid.

(xxiv) If the opinions and conclusions in my three Reports are accepted, it follows that

the material identified by me in those Reports has been published in breach of the rules of procedural fairness, and, consistently with the Commission’s acceptance (in the Alford Report) of the consequence of the publication of material in the Whistler Report published in breach of the rules of procedural fairness, should be regarded as unauthorised and invalid.

(xxv) There is no doubt, that each of these three Officers, together with the other four

Officers identified in 9.7(b), has suffered considerable harm to their reputation and careers as Police Officers as a result of the publication of the material, first which the Commission itself has conceded in the Alford Report to be unauthorised and invalid, and second, if my conclusions and opinions are accepted, in respect of the additional material which I have identified as having been published in breach of the rules of procedural fairness.

(xxvi) It is of course impossible to undo the harm to reputation and to careers which has already occurred as a result of the consequences following the publication of this material, and, as a result of the Commission’s recommendations in that regard, the issue of the Section 173 Notices. However, in my opinion, every practicable step should be taken to reduce the harm to reputation and to career prospects, for example, by my recommending to NSW Police that all relevant Section 173 Notices issued by NSW Police to any of these Officers as a result of reliance upon the offending material identified in the Alford Report, and by me in my Reports, are withdrawn or revoked, and by recommending that their files make it clear that adverse opinions were expressed concerning them in the Whistler Report which in the later opinion of the Commission to the extent indicated in the Alford Report, and to the extent indicated by the Inspector in the three Reports referred to above, should be regarded as unauthorised and invalid.

(xxvii) The relevant Section 173 recommendations by the Commission to NSW Police arising out of the Commission’s purported opinions in relation to the so-called substantial allegation 9.7(b), which in my opinion denied the officers procedural fairness, were recommended in the following paragraphs of the Whistler Report concerning the following officers: Briggs 9.14; Deissel 9.17; Philpott 9.59; Jennings 9.37; Kelly 9.40.

(xxviii) As noted above, the relevant effect of the Commission’s Alford Report in the case of officers Briggs, Philpott and Deissel, was to withdraw the recommendation in each case that NSW Police should issue Section 173 Notices in respect of these three officers. However, the Alford Report made no recommendation as to how NSW Police should act upon the belated withdrawal of those recommendations in the Alford Report given the fact that the Notices had issued following the publication of the Whistler Report in December 2005, with consequential damage to the officers’ reputations and career prospects.

(xxix) In my opinion, having regard to the Alford Report, so far as relevant, and for the reasons set out in my three Reports referred to above, the Section 173 Notices issued by NSW Police to Officers Jennings and Kelly, as well as the Notices


of 34

issued to Officers Briggs, Philpott, and Deissel, and all penalties incurred and detriment suffered as a consequence of the issue of those notices, should in so far as practicable be removed, withdrawn, cancelled or revoked, the relevant circumstances being clearly notified on each Officers’ file, and notification of these changes conveyed in writing to each of the Officers.

(xxx) Accordingly, for the reasons set out above, I subsequently wrote to the NSW Police Commissioner and made the abovementioned recommendations as to the Section 173 Notices, and I am presently awaiting a response thereto. It is hardly necessary for me to state that neither my opinions nor recommendations are binding on the Police Integrity Commission, let alone on third parties.

(65) AS TO THE 18 COMPLAINTS OR PUTATIVE COMPLAINTS RECEIVED SINCE 1 JULY 2009 Of these, 11 have been DISPOSED OF as follows:

(i) C13-09. This complaint arose from the decision of the Police Integrity Commission to decline to investigate the Complainant’s allegations concerning NSW Police, a matter within the exercise of the Commission’s discretion. However, the Complainant refused to give his consent to the Commission’s referring his allegations to NSW Police and the Ombudsman for investigation.

(ii) C14-09. This Complainant was a law enforcement agency. Suffice it to say the

complaint was subsequently withdrawn.

(iii) C15-09. In this case, the complaint concerned an investigation into the Complainant and his family by the Police Integrity Commission. Following my investigation of this complaint I concluded that there was no reasonable basis for the complaint and advised the Complainant accordingly.

(iv) C16-09. The basis of this complaint was that the Police Integrity Commission

declined to investigate the complaint. However, upon examination of the circumstances, I concluded that that matter was within the discretion of the Commission and there was no basis for any complaint concerning the Commission’s relevant decision.

(v) C17-09. The Complainant complained that the Police Integrity Commission’s

procedures involving integrity checks of NSW Police, in her case, were having an unduly adverse effect on her current application for promotion. Following correspondence between myself, the Complainant and the Commission the Complainant withdrew her complaint.

(vi) C18-09. The Complainant’s complaint was that the Police Integrity Commission

had declined to investigate the particular complaint that he wished to make concerning NSW Police. However, following correspondence between myself, the Complainant and the Commission, the complainant subsequently withdrew his complaint.


of 34

(vii) C19-09. The complaint was that the Police Integrity Commission had declined to

investigate the complaint and instead referred the matter to NSW Police and the Ombudsman. Following my investigation of this complaint I was satisfied that the matter was one within the discretion of the Commission and that discretion had been reasonably exercised.

(viii) C20-09. This complaint concerned NSW Police and accordingly was not within

the Inspector’s jurisdiction. The matter was eventually closed due to lack of response from the Complainant.

(ix) C02-10. This complaint concerned allegation involving NSW Police and was

accordingly outside the Inspector’s jurisdiction. However, the Complainant’s files were forwarded by me to the PIC for assessment by the Commission.

(x) C04-10. This Complainant did not accept the Commission’s decision to refer his

complaints involving unidentified NSW Police to NSW Police and the Ombudsman for investigation. Following correspondence between myself, the Commission and the Complainant, I was satisfied there was no basis for the complaint.

(xi) C05-10. This complaint concerned allegations made against NSW Police.

Accordingly, the complainant was advised that the matter was outside my jurisdiction. The Complainant had also taken his complaint to the Police Integrity Commission.


of 34

As to the remaining 7 complaints not yet disposed of:

(xii) C01-10. This Complainant is the subject of a current investigation by the Police

Integrity Commission. Correspondence has passed between myself and the Complainant, and myself and the Commission in relation to this matter. I have recently written to the Complainant suggesting that until the completion of the Commission’s investigation concerning the Complainant, which investigation, I am advised is in its final stages, it is not possible for me to finalise this complaint. Accordingly, I have suggested to the Complainant that once the investigation is completed, and he has been advised as to the outcome concerning himself, I will further consider the Complainant’s complaints in the light of that outcome.

(xiii) C08-10: This Complainant appears to be in a domestic relationship with the

Complainant in the C01-10, and this Complainant is also the subject of the investigation involving the Complainant in C01-10. Accordingly, I have taken a similar course in relation to the complaint in C01-10, and written to this Complainant suggesting that once the investigation being conducted by the PIC involving herself is concluded, I will consider the complaints in the light of the outcome of that investigation.

(xiv) C03-10: This Complainant is a solicitor who was a party to proceedings in the Equity Division of the Supreme Court more than 10 years ago. The Complainant makes serious, indeed, scandalous, allegations concerning the Supreme Court Judge who heard the case, as well as a prominent former NSW politician, several Police Officers and other persons, and several law enforcement agencies, in the absence, in my opinion, of any credible evidence to support such allegations. However, so far as my jurisdiction is concerned, essentially his complaint is that the Police Integrity Commission in declining to investigate his complaints in so far as they involve current or former NSW Police Officers, has wrongly exercised the Commission’s discretion in that regard. I have advised the Commission, on an informal basis of the nature of this complaint. However, although the Supreme Court judgment in question would not seem to be directly relevant to the only aspect within my jurisdiction, I felt that it may well shed some light on the origin of these multiple complaints. Attempts to obtain a copy of the judgment from the Supreme Court foundered over several months. Following a written complaint by me to the Supreme Court access to a copy of the Judgment has now been made available to my office. I anticipate the need for further correspondence between my office and the Complainant in respect of this matter before the matter can be finalised.

(xv) C09-10: By letter dated 23 April 2010 received in the Inspector’s office 28 April

2010, former Sergeant Kelly of NSW Police, based in Wagga at the relevant time, raised matters of complaint concerning his treatment by the Police Integrity Commission in relation to his capacity as a witness in the Whistler hearings, and in what was relevantly published concerning him in the Whistler Report This Complainant is one of the Police Officers referred to in my Reports summarised in this Annual Report (above), and published in full on the Inspector’s website, dealing with and upholding the complaints by Officers Philpott, Deissel and Jennings, respectively. In the course of the investigation of the latter complaints, I concluded Sergeant Kelly had been denied procedural fairness by the Commission for the reasons stated in those Reports, even though I had not at that stage


of 34

received a relevant complaint from the latter. Accordingly, I wrote to him informing him of my findings in that regard, which in turn resulted in his letter referred to above. I have provided a copy of that letter to the Commission for their comment in respect thereof. In view of the considerable amount of time already spent on investigating complaints involving particular areas in respect of the Whistler Report, the fact that those complaints have now been dealt with by me in no less than five Reports upholding those complaints, and, as noted above, my conclusion that this Complainant was denied procedural fairness, and the fact that, as noted above, I have made recommendations to the Police Commissioner arising out of my Reports in the matters of Officers Philpott/Deissel/Jennings, including in respect of this Complainant, I am of the opinion that further time spent investigating this complaint involving as it does the same areas already investigated, could not be justified. In reaching this conclusion, I have also taken into account the limited time available before my appointment as Inspector expires (November 2011), and the remaining matters requiring investigation, further consideration, or finalisation of Reports, prior to the expiry of my appointment. The Complainant has elected to have his identity published herein.

(xvi) C07-10: This Complainant was formerly Inspector O’Neill, of NSW Police, at

the relevant time stationed in Wagga. This Complainant is one of the Police Officers referred to in my Reports summarised in this Annual Report (above), and published in full on the Inspector’s website, dealing with and upholding the complaints by Officers Philpott, Deissel and Jennings, respectively. In the course of the investigation of the latter complaints, I concluded Inspector O’Neill had been denied procedural fairness by the Commission for the reasons stated in those Reports, even though I had not at that stage received a relevant complaint from the latter. Accordingly, I wrote to him informing him of my findings in that regard, which in turn resulted a letter from him dated 2 June 2010, containing a formal complaint concerning various aspects of the material published in the Whistler Report, concerning him, as well as other matters relevant to the Whistler investigation. For the reasons referred to above in respect of Sergeant Kelly, to the extent these complaints concern areas already investigated by me over a long period of time, I cannot justify any further investigation. However, the main thrust of his complaint concerns not the areas already dealt with in the abovementioned complaint Reports by me, but rather an aspect of the Whistler Report in respect of which until this complaint I had not received a complaint, namely, the segment described in the Whistler Report as “The Arrest of WH-1”. I have advised the PIC of this complaint, but at this stage have not had the opportunity to evaluate that complaint, although it is my intention to do so as soon as time permits. The Complainant has elected to have his identity published herein.

(xvii) C06-10: This Complainant was one of several senior NSW Police Officers

identified by name in the telephone intercept material of a derogatory nature published by the Commission, and the subject of my Report responding to and upholding complaints by the Police Association of NSW summarised (above), and published on the Inspector’s website. In essence, the additional complaint made by this Complainant involved the alleged PIC’s service of process upon him in particular circumstances to which he objected. The Commission has provided me with a written response to this complaint, and, there being no objection by the commission, I have provided a copy thereof to the Complainant, and presently await his response to that document.


of 34

(xviii) C10-10. The issue raised by this Complainant seems to be that whereas he made

specific complaints to the Police Integrity Commission containing allegations against certain NSW Police, which the Commission advised him that it declined to investigate, a decision which the Complainant appears to have accepted, his real complaint seems to be that thereafter he came into additional information supporting his relevant allegations and thereupon passed that material to the Commission, but that the Commission in the Complainant’s view, without justification, has refused to consider this additional material. I have brought this complaint to the attention of the Commission, and presently await the Commission’s response thereto.

THE COMMISSION’S ALFORD REPORT (66) On 16 December 2009 the Commission delivered a Report to the NSW Parliament (the

Alford Report, now published on the Commission’s website) which was thereupon on the recommendation of the Commission made a public document.

(67) The stated purposes of the Alford Report (at 21 thereof) were “to identify publicly the breaches of procedural fairness which occurred in the Whistler Report and make public the fact that those passages which have been identified as containing the breaches are invalid and should not have appeared.” Further at 27 the following appears: The Commission regrets that the breaches of procedural fairness occurred and apologises to [each of the relevant Officers].

(68) In all, four NSW police officers, all based in Wagga at the relevant time, are identified in the Alford Report as having been denied procedural fairness by the Commission as a result of unauthorised adverse material concerning them having been published in the Whistler Report (a public document) published by the Commission four years earlier on 21 December 2005, which had the potential to impugn their integrity, and to damage their reputations and career prospects as police officers. These officers, so far as relevant, include Detective Briggs (arising out of my Reports upholding his complaints and now published on the Inspector’s website – www.inspectorpic.nsw.gov.au) and officers Deissel and Philpott. Note: My Reports upholding the complaints of these Officers are published on the Inspector’s website, and a summary appears above at paragraph 64 (viii-xxx) of this Annual Report.

(69) Clearly the publication of this unauthorised material, subsequently identified as invalid in the Alford Report, constituted serious breaches of procedural fairness in respect of the Officers identified in the Alford Report. In particular, in the case of Officers Briggs Philpott and Deissel, the concession by the Commission that that material was invalid and unauthorised had the effect that the Whistler Report must now be read as containing no recommendation by the Commission that consideration should be given to the taking of any action whatsoever concerning those officers, despite the fact that recommendations by the Commission in the Whistler Report that NSW Police issue Section 173 Notices under the Police Act had been acted upon and such notices had issued some four years or so earlier. Thus, on one view, the overall result of the virtual withdrawal of the unauthorised material is, to that extent, to leave those officers’ reputation and integrity unimpaired. However, as a practical matter, the effect of that withdrawal of the relevant recommendations in the Whistler Report may depend on the publicity given to that withdrawal, for the reason that, as Gleeson CJ has pointed out : “Sensational and damaging allegations of misconduct



of 34

made and widely publicised on one day might not be contradicted until a considerable time later, and even if they are ultimately held to be baseless the publicity given to that conclusion may not match, or counteract, the publicity given to the original allegations.” (ICAC v Chaffey, 30 NSWLR 21, at 28, 29).

(70) In the summary of the three Reports in Philpott/Deissel/Jennings, appearing above, I have expressed the view that the Alford Report should be seen as incomplete and inadequate in that the stated purpose of that Report, namely, “to identify publicly breaches of procedural fairness which occurred in the Whistler Report and make public the fact that those passages which have identified as containing the breaches are invalid which should not have appeared”, has not been carried into effect, for the reasons stated therein.

LEGAL REPRESENTATION OFFICE

(71) This Office was established in 1994 to provide legal advice and representation in relation to witnesses appearing before the then current Wood Royal Commission into NSW Police. Upon the establishment of the Police Integrity Commission in 1997, the function of the Office was extended by reference to the Police Integrity Commission (and the Independent Commission Against Corruption).

(72) In relation to witnesses appearing before the Police Integrity Commission, Section 43 of the Police Integrity Commission Act allows such a witness to apply to the NSW Attorney-General for legal assistance. The Attorney- General then determines the application in the light of that Section.

(73) Each of the Complainants in the cases of Officers Philpott, Deissel and Jennings, as well as Mr Hosemans (see above as to each of these) was or is represented by the Legal Representation Office. It follows that that Office occupied an important role in bringing these complaints to the Inspector’s notice, which might otherwise not have come to such notice.

EXTENSION OF POLICE INTEGRITY COMMISSION’S JURISDICTION TO OVERSEE ASPECTS OF NSW CRIMES COMMISSION OPERATIONS

(74) As noted at paragraph 73 of my last Annual Report, the amendments made to the Police

Integrity Commission Act by Act 60 of 2008, in particular, the inclusion of Section 13B (in effect, to detect or investigate misconduct of NSW Crime Commission officers and to prevent such conduct), so far as the Inspector’s jurisdiction is concerned, have the effect of enlarging the classes of persons who may, in a proper case, make a complaint to the Inspector pursuant to Section 89(1)(b) of the legislation; such amendments also have an effect on the Inspector’s functions pursuant to Sections 89(1) (a) and (c), to the extent that the effect of those statutory provisions adds to the workload of the Commission, and thus impacts on the Inspector’s regular audit of the Commission’s operations pursuant to Section 89(1)(a), and upon the procedures referred to in section 89(1)(c). To date, in practice, the effect has been to increase the number of PIC investigations falling within the Inspector’s auditing functions.

(75) As noted at paragraph 74 of my last Annual Report, Assistant Commissioner Clark SC was appointed an Assistant Commissioner on 25 September 2008 to assess the capacity of


of 34

NSW Crime Commission to identify and manage risks of serious misconduct involving Crime Commission officers, such appointment expiring on 7 July 2009, at which time the Report of the Review of the Capacity of the NSWCC to identify and manage serious misconduct risks (Project Rhodium) was provided to the Minister for Police in his capacity as Chair of the Management Committee of the NSWCC. The Commission has advised that it is required to report separately in its Annual Report in respect of its activities relating to the NSWCC, at which time it will make reference to a number of inquiries carried out by the Commission in that regard.

(76) The Commission has further advised in respect of Project Rhodium (mentioned above), that it is anticipated that further details relating to this subject will be provided in its forthcoming Annual Report.

THE USE OF SUPRESSION ORDERS BY THE COMMISSION (77) A substantial portion of the following material appeared in my last Annual Report

(paragraphs 76-88). However, in view of the importance of the issues involved, and the relevant developments in the interim, I have decided to include that material herein. Section 52 (1) of the Police Integrity Commission Act empowers the Commission, in a proper case, in effect, to direct that evidence given before the Commission must not be published. Section 33 (4) of that legislation further empowers the Commission to direct who may be present at a private hearing. Such directions when given can severely restrict the use which may be made of anything said in such proceedings, access to the transcript, even by those present at the hearing, and prevent any discussion of the proceedings, even by those present, outside the hearing. Given the draconian effect of the making of such directions, the legislation also provides, that such direction must not be given by the Commission unless it is satisfied that to do so “is necessary or desirable in the public interest” (Ss. 33(3), 52(2)).

(78) It is clearly within the functions of the Inspector to keep a watchful eye on the particular circumstances in which such directions are made from time to time by the Commission to ensure that in a particular case there can be no reasonable apprehension such directions are given in circumstances clearly contrary to the public interest, and for the purpose of shielding matters of public interest from public scrutiny. I should make it clear, however, that although the Commission has from time to time made numerous such orders, I have never received a complaint arising out of the making of such an order.

(79) It is in this context that I include in this segment of my Annual Report a reference to my difficulty in seeing the grounds for the giving of such directions by the Commission in proceedings which came before it on 8 December 2008 in relation to what was then Operation Alford. Accordingly, I wrote to the Commission by letter dated 1 May 2009, expressing my concerns and requesting the Commission give consideration to reversing the relevant suppression Orders forthwith. Indeed, in subsequent correspondence from the Commission, the latter advised me that it was giving consideration to my request that the restrictions be revoked. On 16 December 2009, the Commission presented to the NSW Parliament a Special Report in the matter of Operation Alford: see above.

(80) A reference to the transcript of the Directions Hearing proceedings reveals that, at the outset, the Commission immediately made an order under Section 52(2) of the Police Integrity Commission Act on the stated basis that it was “not in the public interest for this preliminary hearing to be a public hearing.” No ground for this decision was provided. No


of 34

objection was raised by any party to the making of the decision referred to above by the Commission.

(81) That order had the effect of preventing publication of anything that transpired during the hearing, and a further order was made under Section 34(4) of the legislation restricting severely the number and identity of persons who might be present at that hearing.

(82) These orders were made, not on the application of any of the four police officers who were summoned by the Commission to those proceedings, each one being legally represented, including, in one case, by Senior Counsel, nor on the application of Senior Counsel Assisting the Commission, but made on the initiative of the Commission without any preliminary discussion or ground being stated as to why it could be said to be in the public interest to screen the proceedings from public scrutiny.

(83) For as long as that order was in force the effect was to avoid any public comment or even awareness of the existence of those proceedings.

(84) There are a number of matters which in my opinion indicated a high degree of public interest in respect of the Directions Hearing proceedings. First, the four police officers were summonsed to attend hearings over three days which were to commence in the week following the Directions Hearing. It is obvious that significant inconvenience must have been caused to those persons and, presumably, in the case of the officer represented by Senior Counsel put to considerable expense in retaining legal representation (the other three apparently being represented by the Legal Representation Office, in effect, at public expense). Despite the fact that they had been summonsed to appear before the Commission during that three day period, shortly after the Directions Hearing commenced the Commission announced that the hearing dates in respect of the following week had been vacated.

(85) Ultimately, the parties were advised that in fact the proposed hearing would not be proceeding. These matters alone, in my opinion, make out a clear case for bringing this matter into the public domain given the time and expenditure that must have been involved in relation to the proposed hearings, which were vacated at very short notice, as indicated above.

(86) Further, the nature of the submissions made on behalf of the four police officers raised significant issues concerning the Commission’s attempt, in effect, to revisit the procedural fairness issues identified in my Reports concerning Detective Briggs (copies of which have been posted on the Inspector’s website). As to these matters, see now, generally, the Commission’s Alford Report (above).

(87) The submissions made to the Commission at the Directions Hearing included submissions, in effect, that the Commission had no jurisdiction to enquire into the proposed subject matters of the hearings, that there was an apprehension of bias in the Commission concerning the four police officers and that there was a serious breach of the principle of finality of proceedings involved as well.

(88) In my opinion, all these matters amounted to a strong case where the public interest in ensuring transparency and accountability would have been served for the Commission reversing its relevant these Orders forthwith and to make the Directions Hearing open to


of 34

public disclosure, subject to the exclusion of the material relating to the medical condition of one of the four police officers.

(89) Such a reversal of the confidential orders would still leave the position, in my opinion, as far from satisfactory, and, in particular, would not, by any means, overcome the effect of the initial decision by the Commission to make the orders.

(90) In fact it was not until 16 December 2009, some 12 months later, that the Commission made an Order varying the abovementioned Suppression Order, which variation permitted an edited transcript of those proceedings to be made public. (The material excluded apparently comprised medical reports relating to a particular individual.) The Commission has advised that prior to the making of the Order on 16 December 2009, advance notice of the intention to do so was provided to all parties, and the responses taken in to account prior to making the Order.

(91) The overall effect of these events, it seems to me, is that for 12 months those proceedings and all aspects of them were clothed in secrecy and the parties thereto bound to silence. The variation Order contains no explanation as to why that was necessary, or why it took 12 months to vary the Order, or why the an Order in the terms of the variation Order could not have been made on 8 December 2008, instead of the Suppression Order made on that date.

TELECOMMUNICATION (INTERCEPTION) ACT 1979 (Cwth) (92) The Telecommunication (Interception) Legislation Amendment Act 2000 (Cth) (the TI Act)

which included the Inspector of the Police Integrity Commission as an “eligible authority” was given Royal Assent on 23 June 2000.

(93) Applications for the issue of Telephone Intercept (T.I.) warrants are communicated to me by the Commission’s T.I. Manager. The formalities associated with access to the foundational material upon which reliance is placed in seeking the issue of T.I. warrants and access to the product of such warrants is recorded to facilitate the statutory audit of such access by the NSW Ombudsman. By reason of the constraints contained in the TI Act, I do not have access to the product of such warrants, such material being carefully isolated within the Commission’s IT procedure so as to quarantine it save for essential operational purposes.

(94) These arrangements have been working satisfactorily.


of 34

ELECTRONIC RECORD KEEPING (95) The MATRIX system of electronic record keeping has resulted in easier access to

operational reports and to the minutes of the regular Operational Advisory Group meetings.

(96) From time to time changes in the formatting and operational procedures continue to improve the easy access to the recorded information. From the Inspectorate’s perspective the MATRIX system is well managed and effective.

CONTROLLED OPERATIONS (97) Subject to the provisions of the Law Enforcement (Controlled Operations) Act 1997, the

Police Integrity Commissioner may authorise the carrying out of controlled operations. This function is seen as an important and productive weapon which, absent statutory authority, would contravene the law. A controlled operation may be described as a covert investigative method used by law enforcement agencies, including the Commission, during which, for example, an undercover Police officer infiltrates a suspected criminal enterprise to obtain evidence to identify and prosecute those involved, and in the course of so doing may himself necessarily engage in conduct which but for the Act would be unlawful and expose him to criminal and/or civil liability.

(98) The approval procedures for authority to conduct a controlled operation have been settled by the Commission’s Solicitor and are set out in some detail. Although the application for a controlled operations authority is prepared by the relevant investigative officer with the assistance of the Team lawyer, as and when required the Commission Solicitor also provides advice upon the necessity or appropriateness of the application. Such operations are subject to the external audit, as far as documentation is concerned, by the Ombudsman in accordance with Part 4 of the Act.

(99) In practice controlled operations undertaken by the Police Integrity Commission from time to time of necessity involve police officers in the exercise of investigative, surveillance or enforcement functions and accordingly fall within the purview of Section 142(1) of the Police Integrity Commission Act which provides:

“142 Exercise of functions by police

(1) A police officer may not exercise investigative, surveillance or enforcement

functions under or for the purposes of this Act unless authorised to do so by the Commissioner.”

(1A) As soon as practicable after giving such an authorisation, the

Commissioner must notify the Inspector of that fact.

(100) Although by virtue of the definition of “police officer” in Section 4 of the Police Integrity Act, the reference to “police officer” in subsection (1) must be read as referring to NSW police officers only, I am in a position to inform myself of all Controlled Operation authorisations by the Commissioner by reason of my access to the Commission’s internal records, and I also intend to further inform myself in this regard by reference to the Ombudsman’s Annual Report dealing with compliance with the relevant provisions of the


of 34

Law Enforcement (Controlled Operations) Act. By letter dated 30 April 2010, the PIC Commissioner advised me that he had authorised a NSW Police Officer to exercise investigative, surveillance or enforcement functions pursuant to Section 142 of legislation, such authorisation being scheduled to expire on 31 July 2010, and that this was the only controlled operation authorised during the reporting period.

(101) A code of conduct applicable to all relevant agencies is contained in Schedule 1 of the Regulations made pursuant to Section 20 of the Act. The Section provides, so far as relevant, that a Regulation must be not be made pursuant to Section 20, except on the recommendation of the Inspector, and that a contravention of the code of conduct by any person employed with a relevant agency (which includes the Commission) is taken to be misconduct for the purpose of any relevant disciplinary proceedings.

MEETINGS WITH PARLIAMENTARY COMMITTEES

(102) The Committee on the Office of the Ombudsman and the Police Integrity Commission (the Parliamentary Joint Committee) is constituted under Part 4A of the Ombudsman Act 1974. The functions of the Committee under the Ombudsman Act 1974 are set out in section 31B.

(103) Under the Police Integrity Commission Act 1996, the Parliamentary Joint Committee has the function of monitoring and reviewing ‘the exercise by the Commission and the Inspector of their functions’.12

(104) On 26 October 2009, I appeared and gave evidence before the Parliamentary Joint Committee on the occasion of the Committee’s tenth General Meeting with the PIC Inspector. Prior to my appearance I received correspondence from the Committee containing a number of questions relating to matters within the Inspector’s functions of interest to the Committee, and I responded to each of those questions in writing prior to my appearance. At the completion of my evidence referred to above on 26 October 2009, I gave further evidence in relation to the Committee’s inquiry into the handling of complaints by the Inspector against the Police Integrity Commission, having previously received correspondence from the Committee containing a number of questions relevant to that subject matter, and I responded to each of those questions in writing prior to my appearance. On 16 June 2010 I forwarded a lengthy written submission to the Committee in effect raising objections to the Recommendation of the Committee in its Report published in April 2010, mentioned below, in effect that the Police Integrity Commission ought to have a right of reply to complaint Reports by the Inspector containing criticisms of particular procedures and practices of the Commission.

(105) The Report of the Parliamentary Joint Committee on the Tenth General Meeting with the Inspector of the Police Integrity Commission (which includes copies of the correspondence referred to above) was published in March 2010, and is accessible on the Committee’s website, as is the Report re Handling of Complaints against the Police Integrity Commission published in April 2010, at:

www.parliament.nsw.gov.au/prod/parlment/committee

12 S.95(1)(a) of the Act

http://www.parliament.nsw.gov.au/prod/parlment/committee�


of 34

(106) In my last Annual Report at paragraphs 89-91, I raised an issue concerning the exclusion of

the Inspector from confidential evidence given to the Committee by the Commission, for reasons therein mentioned. Suffice it to say that by letter dated 3 September 2009, the Chairman of the Committee responded to the concerns raised by me, and I accept as satisfactory the arrangements referred to in that letter.

(107) This Inspectorate holds itself available and would welcome enquiries and discussions on any matter of concern to members of the Parliamentary Joint Committee at any time.

PROBLEMS WITH THE LEGISLATION: RE: S.89(1)(b) OF THE POLICE INTEGRITY ACT

(108) In my last Annual Report I attempted to spell out problems I perceived with the above

statutory provision, and concluded in the following terms – Thus, it seems to me, the legislation gives no guidance, expressly, as to who should be seen as the recipients of such reports. Nor any guidance as to the status that should be accorded to such reports, In my opinion it is not clear that the Inspector has any power to publish the reports so that they become public reports. Nor does there appear to be any power in the legislation authorising the Inspector to present such reports to Parliament. If this conclusion is accepted as reasonable, it follows that an amendment to the legislation would appear to be desirable to clarify these issues. I have drawn these perceived problems to the attention of the Joint Parliamentary Committee.

(109) There has been much discussion since then between my office and the Parliamentary Joint

Committee of the need for a relevant amendment and as to the form such an amendment might take. By letter dated 23 June 2010 from the Deputy Director-General, Department of Premier and Cabinet, I was advised that the Minister for Police had established a review of the Police Integrity Commission Act 1996, that the review was pursuant to Section 146 of the Act and that a Report to Parliament was due by March 2011. I was further advised by that letter that the Minister had requested that the review be undertaken by the Department of Premier and Cabinet, and attached to the letter was a copy of the Terms of Reference in respect of the review, and that any submissions from myself should be received by the Department by 31 August 2010. Subsequently, I provided written submissions to the Department including a submission supporting an amendment to the legislation to overcome the difficulties referred to above.


of 34

END NOTES

(110) Meeting with ICAC Commissioner: On 14 April 2010 I met and conferred with the ICAC Commissioner, The Hon David Ipp AO QC at the ICAC. On 24 November 2009, I met and conferred with the ICAC Inspector, Mr Harvey Cooper, AM, at my office.

(111) Establishment of Inspector’s website: On 7 May 2008 the Inspector’s website was established as a result of the kind assistance rendered by Mr Bill Sharpe, Mr Alex Aidar and Mr David Lin, Officers of the Commission. Included on the website is the facility to allow details of complaints to be entered thereon and forwarded automatically to the Inspectorate. All Annual Reports of previous PIC Inspector’s are available on this website, as well as copies of my previous Annual Reports, this Annual Report, Special Report to the NSW Parliament, and a number of Reports upholding complaints concerning the Commission: www.inspectorpic.nsw.gov.au. The Inspector’s website is currently managed by officers of the Department of Premier and Cabinet.

(112) Access to DPP’s Law Library: I wish to record my deep indebtedness to the Director of Public Prosecutions, Mr Cowdery, QC, AO, for allowing me access to the DPP’s extensive law library; and to the Principal Librarian, Ms Gayle Davies, and her Staff, for their considerable and generous assistance in providing me with access to relevant texts and case-law from time to time.

(113) Since my appointment as Inspector of the Police Integrity Commission, I have received much assistance and encouragement from sundry sources, apart from those expressly referred in this Report for which I am extremely grateful and wish to acknowledge here. In particular, I acknowledge the assistance provided by the Commissioner, Solicitor and senior staff of the Commission, and the Commissioner’s Executive Assistant, Ms Gabrielle Wanner. I also wish to acknowledge the invaluable assistance provided to me by my Executive Assistant, Ms Jane Cecilia.

The Hon P J Moss, QC

Inspector of the Police Integrity Commission

1 September 2010


role of the inspector

Documents