Miscarriages Of Justice 2

Justice Action has obtained the permission of the Executive Officer of the Wood Royal Commission to distribute the public files of the Wood Royal Commission to NSW prison libraries. Permission has subsequently been granted by the legal department of the Department of Corrective Services and the Commissioner.

The public files are intended for research purposes only and not for profit use.
They can otherwise be obtained upon application from the Wood Royal Commission at an apporximate cost of +$1000.

The public transcript of the Wood Royal Commission is a vital resource for those who are imprisoned and suspect that corrupt police played a role in obtaining a conviction. These files can be searched by name of suspect officer who testified before the Commission. They contain relevant information from the corruption hearings, excepting those names and evidence suppressed by court order.

Justice Action strongly encourages prison libraries and inmate development committees to begin application for the purpose of obtaining a copy. A Justice Action volunteer has also compiled a searchable index in Microsoft Word format, on floppy disk, to accompany the files. Applications should be submitted to the appropriate library supervisor at each facility and should request $80 to cover our costs.

Our original transcript is in CD form. If your library does not have a CD Rom drive, indicate the size and type of storage disk that your computer system requires. We will attempt to duplicate in a form that each library can read.

Once you have made written application to the education, library or responsible officer, please write to Justice Action in order to inform us of all details. Please also indicate the number and type(s) of computers that your library uses. Be as specific as is possible and include information about peripheral devices and the particular software installed on your system.

This questionnaire consists of a series of detailed questions. If you do not know or cannot recall the information requested, please indicate so, in the space provided.

Please provide the following details:


WRC : NSW Prisoners Survey - QUESTIONNAIRE

For Compilation of Cases and Allegations of Police Misconduct and Corruption for Submission to the Wood Royal Commission into Corruption in the NSW Police Service


a) Name
b) Date of birth
c) The prison at presently
d) The date of your parole

a) Who were your solicitors?
b) What was the name of any barristers representing you?

a) What was the nature of the alleged offence(s)?
b) What was the date of the alleged offence(s)?

a) Did you plead guilty or not guilty?
b) Did you plead to a lesser charge?
c) If so, did you make any admissions in the process of pleading to a lesser charge?
a) Did you have a full committal hearing?
b) If so, at which court?
c) Who was the Magistrate at the committal?
d) Were you represented by Legal Aid or a private solicitor?
Please specify name of solicitor and/or barrister.

made outside a Record of Interview
a) What type of record of interview did you make?
i) Police notebook
ii) Typed unsigned statement
iii) Typed signed statement
iv) Electronically recorded

b) Did you make any statements outside the record of interview?

A) What was the name of your trial judge?
B) What was the name of the prosecutor?
C) Was it a jury trial?
D) Did you give a sworn statement in court or make a dock statement, ie a written statement?
E) What charge(s) were you convicted of?
F) What was the date of your conviction?
G) What sentence were you given? If more than one conviction, please specify each sentence.

A) Have you appealed your conviction or is your conviction presently under appeal? Please give details.
B) Have you applied for an inquiry into your conviction or is your conviction presently under inquiry? Please give details.

A) Who were the arresting officers?.
B )Who were the investigating officers?
C) In what police station were you charged?
D) If you made a record of interview, which detectives were primarily involved?
E) What police officers gave evidence in your case?

A) Did you raise with your solicitor or barrister any of the following issues?
i) That evidence was fabricated or concocted by the police, eg: an inaccurate record of interview.
ii) That evidence was suppressed.
iii) That evidence was manufactured or planted.
iv) That an officer falsely collaborating another officer's evidence.
v) That witnesses or informants were improperly induced into giving evidence.
vi) An improper relationship existed between the police & an informant.
vii) That the police did not follow correct police procedures.
viii) That in making an admission you were under duress because of police verballing you or applying pressure during the police interrogation.
ix) That police records were destroyed.
x) Any other conduct of the police during the investigation or the manner which you believe to be improper.
B) If you did raise any of the above issues, did you specify the officers you believed to be involved?
C) If you did raise any of the above, did it become an issue at your trial?

(Only answer if you are of NON ENGLISH SPEAKING background.)
A) Did you have problems, as a result of language difficulties, understanding what was said when you were questioned by police or during your trial?
B) Was there an interpreter on these occasions?

(Only answer if you suffer any form of impairment or disability)
A) Did you have any problems understanding what was said to you in any interview with the police or during your trial?
B) Was any person present who assisted you on those occasions.

A) Police Brief of evidence.
B) Committal transcripts.
C) Copies of your complaints concerning Police.
D) Any documents pertaining to Legal Aid.
E) Copies of Legal transcripts from the trial.
F) Copies of Legal arguments during trial.
G) Appeal Court submissions.
I) Appeal Court judgement.
J) Opinions from the barrister prior to the Appeal.

Did you at any stage make a complaint about improper police conduct to: (Please specify date and details)
i) the Ombudsman's office
ii) the Attorney General's office
iii) the Police Complaints Tribunal
iv) the Police Minister?

15. Would you be prepared to submit the name of a personal friend, family member or relative willing to assist us?


WRC - JA Submission



1. Debriefing Corrupt Officers
"In some cases, where evidence emerges that the police officers... in a particular conviction have deliberately lied and lied in respect of matters, it may be that the conviction will not be allowed to stand even though quite apart from their credibility there is independent evidence sufficient, if believed or accepted by the jury, to convict the accused."

This is an extract from the judgement of Mahoney P., in R v Miller (unreported, NSW Supreme Court of Criminal Appeal, 3 May 1996, Mahoney P, McInerney, Hulme JJ) where evidence from a statement by police officers at the Royal Commission into NSW Police revealed that police officers had perjured themselves and suppressed evidence. This resulted in a review of the conviction under Part 13A of the Crimes Act 1900 (NSW).

A. What is debriefing?
Where an investigatory body concludes that an appointee of the NSW Police Service is guilty of abuse of the criminal justice process (including fabrication, suppression or manufacture of evidence or perjury) and a history of such abuse exists (for example, where the officer makes an admission of a general nature), such criminality should be viewed as more serious than individual instances of police misconduct.

Abuse of the criminal justice process is a most serious type of corruption. Its consequences are far reaching and represent a significant challenge for the Royal Commission's (the Commission) objective for the NSW Police Service ie., "a culture and professionalism which will help to repel corruption and enhance productivity.". The Commission has shown that police abuse of process also casts serious doubts over many convictions.

A debriefing process carried out by an independent investigative organisation permits an examination of the case work of corrupt officers. It should determine: a) the nature and extent of the corruption- ie., the duration and type of process corruption; and b) specific instances where the officer has abused process to secure conviction of alleged offenders.

B. Why is it necessary?
Justice Wood states "the Royal Commission has, in the course of its inquiries to date, unearthed significant corruption of the kind which could answer the test adopted of 'entrenched or systemic corruption". (Royal Commission into the New South Wales Police Service Interim Report February 1996) We consider a four-fold mechanism is required to deal with this finding:
1. Determine suitable disciplinary action;
2. As part of the disciplinary action, the officer be directed to undergo a debriefing process to determine details of specific instances of corruption;
3. Referral to an independent review authority to investigate the nature and extent of the misconduct and establish whether perjury or fabricated evidence places conviction at risk of being unsafe or unsatisfactory; and
4. Details of the matter and subsequent action recorded and compiled into a central data-base for analysis and future policy determination if necessary.

Miscarriages of justice are the inevitable and most insidious by-product of corruption of the police service. Mr Jeremy Kinross MP states, "Deprivation of the liberty of a person by a conviction that is subsequently proved to have been attained by fraud or perjury, especially where the person is detained for many years in a gaol, is an act that no one would want to occur. Indeed, it is a grave injustice." (NSW Legislative Assembly, Hansard, 20 June 1996). Necessarily, all convictions resulting from the evidence of admitted or convicted police perjurers must be reviewed.

The Commission should comment on the appropriate mechanisms and modes for disciplinary action against corrupt officers of the NSW Police Service. The Commission's terms of reference also allow recommendations to be made regarding the consequences of proven allegations of misconduct including abuse of process, fabrication and suppression of evidence and perjury. The Commission should make recommendations in these areas.

C. What should be proposed?
Justice Action submits that the Commission recommend a five-stage process for dealing with process corruption:
at an investigation into a complaint against an officer of the NSW Police Service evidence is adduced that an officer fabricated, manufactured, or suppressed evidence in a particular case or a general admission of fabrication or perjury is made by an officer;

as part of the disciplinary action, each officer culpable of such misconduct must undergo extensive debriefing by an independent debriefing officer (with access to the relevant records and file notes for each case investigated by the officer in question) where the officer must detail the specific cases where the officer or his/her colleagues lied, planted or suppressed evidence;

a brief is prepared indicating particular instances of fabrication or suppression of evidence and perjury and the matter each instance of misconduct related to;

the brief is handed to a separate investigative body which establishes whether the investigative and/or prosecuting process has been corrupted;

if it is discovered the brief touches on the conviction of a person, raising the suspicion that the conviction is unsafe or unsatisfactory, or raising the possibility of a miscarriage of justice, then the investigative body should have the power to direct investigation of that case, including supervising any further police investigation, with powers to order an investigation be carried out by a police force different from that which investigated the original offence (if it is felt the case warrants it), and the power to commission independent expert evidence on particular aspects, for example scientific evidence, if it wished to do so outside the main police investigation.

Where the result of the investigation indicated there were reasons for supposing a miscarriage of justice may have occurred, the body would refer the case to the New South Wales Criminal Court of Appeal, together with a statement of its reasons for so referring it and any other supporting material it considers appropriate in view of its investigations, and which in its view is legally admissible, though without any conclusion or recommendation as to whether or not the miscarriage has occurred. It would be for the Criminal Court of Appeal, on receiving a case referred in this way to treat it as a standard appeal, ie. ensuring the defence and prosecution receive a copy of the statement of reasons and supporting material sent to it. It would then be for the appellant to present his or her case, with appropriate legal aid arrangements.

These proposals are not fanciful. After a series of cases involving supposed Irish terrorists, the Runcieman Royal Commission in Britain recommended the establishment of an independent Criminal Cases Review Authority. It has been established and is independent of the Attorney General's Office. It does not breach the separation of powers doctrine as the Criminal Cases Review Authority simply investigates and assesses assertions of miscarriages of justice claims and refers these back to the Court of Appeal.

2. Management Responsibility for Criminal Process Corruption
The management of the NSW Police Service must publicly acknowledge its corporate responsibility for the entrenched and widespread criminal justice process corruption which has finally been exposed and, as the interim report states, is accepted by the Commission.

It is unsatisfactory to say this is all now in the past, and the Police Service has changed and has exemplary integrity procedures. In the same way an alcoholic must admit his or her addiction, the Service must acknowldge the gravity of its criminal activities before the problem can be properly addressed. At the minimum, there must be an acknowldgement that management failed to prevent the widespread practices of fabricating confessions, planting evidence and fabricating other testimony to mislead the courts. Although this is stating the obvious, it is important that such an admission is made.

Integral to such a public acknowldgement is senior management (preferably the Commissioner) outlining to the public its plan to ensure the cessation of such practices and the manner in which those engaging in these practices will be dealt with now and in the future. Only through the presentation to the public of such a detailed plan of action can a credible advance be made and a semblance of public accountability restored.

3. Community Policing
Part Two raises issues about the police culture. There is scholastic agreement that the policing which people receive is a function of the culture of policing that permeates the institutions through which policing takes place. (see Shearing C., "Transforming the Culture of Policing: Thoughts from South Africa" in The Australian and New Zealand Journal of Criminology (1995) at 54)

Policing is typically understood as the activity of police officers acting according to the law, departmental regulations and an occupational culture.

The militarisation of the police force provides a useful example of the occupational culture. The introduction of the routine wearing of firearms is only a recent occurrence. Supporters argue that an armed force is necessary because society has become more violent and even routine policing can become dangerous.

While there is disagreement over whether society is more dangerous, evidence shows that the absence, or apparent absence, of weapons on police officers may enhance their safety and increase co-operation of offenders, particularly in situations where the offender is carrying a weapon. Sknolnick and Fyfe in Above the Law: "Police and the Excessive Use of Force (1993) find the level of shootings by the police is affected more by the policies and philosophies of police departments than factors such as the level of violence faced by the police, in arguing against the growing militarisation of the police". The finding is supported by the Victorian Police Firearms Policy Review.

Despite evidence that restrictive firearm policies lead to decreased shootings by police, (like the rest of the community as the current gun law debate shows), police maintain that wearing weapons is necessary to protect the public and themselves. This perception by police that their job is becoming more dangerous is not well founded, as the Australian Institute of Criminology have repeatedly stated. That police are sometimes involved in dangerous situations and may be targeted or killed simply because they are police is true, but the knee-jerk response of police calling for greater fire power is not justified. Indeed, liberal use of firearms by the police have endangered the public, as evidenced by units such as Victoria's SOG.

Justice Action recommends the demilitarisation of the police force. Further, in considering occupational culture, occupational culture and the law/ departmental regulations can often be in conflict. The practice of 'noble cause corruption' evidences this. The Commission has heard police officers admit to perjury in the name of it being part of the duties of an officer. However, the police exist to protect the fundamental freedoms of all citizens. Paradoxically, the powers the police possess for the protection of these freedoms, also provide the potential for severe abuse of these freedoms.

The strengthening of the legal and regulatory script for police officers will solve a part of this problem, as will undermining or setting about transforming the occupational culture and the use of more and stricter accountability measures, such as independent review bodies and complaints authorities.

In addressing issues of the occupational culture, the experience of South Africa provides innovative and workable solutions. For example, the Goldstone Commission established a multinational panel to explore new ways of policing demonstrations that would be less brutal and discriminatorythan the public order policing for which South Africa became notorious. The panel found the public order unit of the South African Police epitomised the police culture, explicitly seeing themselves as Children of God and expressing all values of Afrikanerdom, irrespective of the cultural background of police officers.

To deal with public order policing, the panel adopted the position that progressive change could only occur if the South African Police were not regarded as the principal source of public order policing. Once policing was seen as something that is, and can be, done by other institutions besides the police, possibilities for transformation abound. In this case, the panel found the institutional basis for policing public order in the marshals whom the political organisations had used to regulate political demonstrations. These marshals were part of a very different "police culture" that viewed demonstrations as a civil right requiring safeguarding. The panel acknowledged this radical change in policing went against the grain of South African public order policing and that of most Western countries. However, the panel devised a workable scheme involving marshals, the municipality involved and the police, albeit without the police controlling the process.

Justice Action suggests the Commission consider the possibilities of such policing strategies, particularly in finding methods to curtail the potential of abusing freedoms, and make recommendations accordingly. The community must be involved in the reorganisation of policing as a result of the Commission. A permanent structure that allows elected community representatives involvement in all aspects of local policing must be established, which is also involved in senior management initiatives such as the introduction of new weapons, eg capsicum spray. The community based police councils will have the authority to make local policing policy that reflects community needs. Too often changes in policing policy occur without any community discussion or involvement. Police must be accountable so that social and ethnic groups or certain types of crime are not over-policed. A workable system of police governance must contain a source of counterveiling power that can resist the centralisation and militarisation of this public institution.

Drug law reform is also essential. We have had the opportunity to see the New South Wales Legal Steering Committee of the Australian Drug Law Foundation submission to the Commission and wholly endorse its call to end prohibition and the meta-legal approach to drug use in the community which has provided the basis for much of the corruption exposed by the Commission. We will not repeat their arguments here. Suffice to say, the issue is squarely within the Commission's terms of reference. If the Commission is genuinely committed to the cessation of police corruption, it cannot shirk from advocating the removal of the lucrative incentives to corruption that existing drug laws have.

Analysis of the Interim Report
by Tim Anderson

Wood Royal Commission into Corruption in NSW Police Service

On The Police Royal Commission's Interim Report

Most analyses of police corruption focus on a perceived need to protect the institution of the police and meet its needs, at the expense of protecting those abused by police power. Yet this very bias helps explain why police corruption is as "entrenched and systemic" as Justice James Wood now acknowledges.

Analysts are now talking of police restructuring, management regimes and police training. Wood rightly rejects the complacent view of the Police Association that corruption will always exist, but at the other end of this spectrum Premier Carr claims he will deliver to the public "a Police Service in which they can have absolute faith". However 'absolute faith' in anything, let alone a police force, is for the terminally naive or the overly religious.

A series of weak police excuses have emerged for the fiasco the Royal Commission has begun to expose. Ex-Commisioner Tony Lauer, denying the extent of corruption to the bitter end, weakly claimed to Wood that his submission was not an exercise in "damage control". Acting Commissioner Neil Taylor, having also claimed there was little police corruption, now simply says "my views were incorrect". And despite Wood's finding that "on a prima facie basis, widespread corruption, criminal conduct ... and perjury existed within the NSW police force", former head of Internal Affairs, Jeff Jarrat, could only offer the lame excuse that police corruption was "like a relationship when one partner is cheating; the other is often the last to know."

In fact all the hierarchy knew. Many were involved, many turned a blind eye, and those who made it to the top were all experts in damage control. Experts with a big budget. Tony Lauer, along with Assistant Commissioners Dennis Gilligan and Bruce Gibson, worked closely with the squads which verballed and loaded up suspects. They, and all senior police involved in internal affairs, were thoroughly familiar with police perjury and cover-ups. As spokesperson for the Police Association in 1981 Lauer attacked as "anarchist elements" those who criticised Roger Rogerson, when he shot Warren Lanfranchi dead in a Chippendale back lane. Lauer was accused by other police of planting heroin on suspect Frank Hakim, but was cleared by ICAC boss Ian Temby, in 1989. Lauer was not unfamiliar with allegations of criminal process corruption.

The failure of ICAC under Temby, which Framed has detailed in past issues, is now widely accepted. Wood correctly calls Temby's feeble pretence to deal with police corruption as "an opportunity lost"; Temby's 1994 plea to leave police to themselves was "unfortunate". Temby aligned ICAC so closely with the police hierarchy that the anti-corruption body publicised and distributed the police policy on informers. Little wonder that Lauer tried to employ Temby as the police barrister, when the Wood Royal Commission began. Little wonder, too, that a public outcry blocked Temby's lucrative opportunity.

The reasons for the failure of ICAC are worth reconsidering, when we look at the newly proposed Police Corruption Commission. Will it do any better? Perhaps. ICAC under Temby was concerned to establish close working relationships with law enforcement bodies, to influence their training, education and management practices. Temby identified with the goals of the police, and attempted to build public confidence in police effectiveness. For these reasons he gave senior police soft treatment and avoided forms of corruption (such as organised perjury) which strengthened the police hand. A higher than normal standard of proof in the Hakim case meant Tony Lauer would not face charges of perjury and fabrication. Inspector Aarne Tees, when caught out lying to ICAC, was excused. Temby refused to deal with Rogerson' 1991 admissions of widespread fabrication.

Things have now changed. While Temby called fabrication to secure convictions the pursuit of "noble ends by wrongful means", the Police Board in its submission to Wood rejected any linking of the term "noble" with police perjury and fabrication. After the revelations of the Royal Commission, both the Police Service and the Police Board accept the need for an external body to investigate serious corruption. They also both offer tentative support for drug law reform. But there is a pressing insistence to allow police to move their new management tools, such as a 'Professional Standards Program', into centre stage. This is to 'rebuild confidence' in the force, where the Royal Commission had destroyed it. But this is the heart of the problem: no strategy which is focussed on building confidence in the police can at the same time unearth substantial and destabilisingcorruption and so trigger change. A 'hit and run' Royal Commission may do so, but what about a permanent complaints body, such as ICAC or the PCC, concerned for its place in the bureaucracy?

Former barrister and judge Jim Staples proposes "demilitarisation, democratisation and decentralisation" of the police. Criminologist Russell Hogg speaks of the need for changes in police structure, training and management. But this focus on police needs means that the political confidence-building process % which no-one dared upset in the past, and which strengthened the police culture of cover-ups and lies % resumes centre stage. 'Retooling' the police force has its dangers. The worst example to follow would be the response to the Aboriginal Deaths in Custody report, where several hundred million dollars have been spent on police and prison officer training and education, suicide proof cells and so on, yet Aboriginal imprisonment and deaths have risen.

Justice Action has suggested that addressing police corruption requires something more. There must be special structures outside the police to protect the vulnerable from the worst abuses of police power. In addition, ongoing exposure of police abuses is an essential and necessary part of a democratic society. The destabilisation caused by such exposures is a healthy thing, and must not be avoided, as it is the motive force for further reform. We wrote to the Royal Commission late last year, proposing:
• " the establishment of a Criminal Cases Review Authority
" a requirement that the police hierarchy publicly admit and accept responsibility for organised perjury, and then detail a plan to deal with criminal process corruption.

• While acknowledging these problems Wood has not suggested measures to deal with them, in his interim report. This might be seen as a reflection of Wood's priorities, or it may be that the Royal Commission is in a jurisdictional dispute with the Attorney General, who has so far taken no real initiative on the matter. Whatever the case, the responsibility for implementing such proposals lies with the government. Watch to see if as much political energy is spent on dealing with police perjury and the victims of miscarriages of justice, as on 'rebuilding confidence' in the police.

Author: Tim Anderson



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