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The Victorian Armed Offenders Squad - a case study

The Victorian Armed Offenders Squad

- a case study

Ordered to be printedVictorian Government Printer

October 2008 Session 2006–08

P.P. No.134

WARNING - Language This report contains language that some readers may find offensive.

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Letter of transmittaL

To

the Honourable the President of the Legislative Council

And

the Honourable the speaker of the Legislative assembly

This Report is presented to Parliament pursuant to section 102J(2) of the Police Regulation Act 1958. It deals with issues arising from an Office of Police Integrity Own Motion Investigation, commencing in February 2006, into allegations of assaults against citizens in custody of the now defunct Victoria Police Armed Offenders Squad.

The investigation revealed evidence that suggested criminal conduct had occurred. Advice from the Office of Public Prosecutions supported the laying of charges against three members of the Squad. On 12 March 2008, each of the three members pleaded guilty to a ‘rolled-up’ charge of assault (a single charge involving more than one incident of assault). On 27 May 2008 each of the three members pleaded guilty to a ‘rolled-up’ charge of attempting to mislead the Director.

As criminal justice proceedings are now finalised, I am tabling this Report in the public interest.

Michael Strong

DIRECTOR, POLICE INTEGRITY

COnTenTS

Letter of Transmittal 3

Contents 4

Glossary of Terms 5

Overview 6

Background 7 Public hearings 8

What the investigation revealed 9

The circumstances of arrest 9

The allegations 9

The OPI audiovisual recording 10

Outcome of the investigation 12

Cultural issues 13

A Force within the Force 13

Loyalty to Squad above all else 14

Squad branding 14

Figure 1: Briefs of evidence with Armed Offenders Squad logo 16

The code of silence 17 Willingness to lie on oath 18

The role of the Police Association 18

Management issues 20

Management structure 20

Management of problematic behaviour 22

Figure 2: Average number of complaints against Crime Department Squad members, July 1 1999 - June 30 2006 24

Figure 3: Number of Squad members against whom complaints were made, July 1 1999 - June 30 2006 24

Examination of solutions 26

Major crime management model 26

Figure 4: Comparison of statistics: Armed Offenders Squad and Armed Crime Task Force 26

Other management strategies 26

Changes to policies or procedures 27 Figure 5: Suspect’s time in custody 29

Conclusion 32

Recommendations 33

Response by Victoria Police and the Police Association 34

Appendix One – Outcome of Magistrates’ court proceedings 39

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GLOSSAry Of TermS

Beach Report Board of Inquiry Into Allegations Against Members of the Victoria Police Force (B.W. Beach), 1975, Report

Charter Charter of Human Rights and Responsibilities Act 2006

CCTV Closed circuit television

Coldrey Report Consultative Committee on Police Powers of Investigation (Coldrey), 1986, Report on Section 460 of the Crimes Act 1958

ESD Ethical Standards Department of Victoria Police

Fitzgerald Report Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (G. E. Fitzgerald), 1989 Report of a Commission of Inquiry Pursuant to Orders in Council

OPI Office of Police Integrity

Section 86PA(4) certificate Certificate issued under the Police Regulation Act 1958. The effect of such certificates is that a witness is compelled to provided evidence even though it may tend to incriminate him or her, but such evidence is not admissible against the witness before any court, except in limited circumstances

VPM Victoria Police Manual

Wood Report Royal Commission into the NSW Police (The Honourable Justice JRT Wood) 1997, Report.

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OVerView

It is hard to imagine a situation in any civilised society in which there is a greater imbalance of power than when a person is taken into police custody. This report reveals how some former members of the now defunct Armed Offenders Squad acted in an uncivilised manner and exploited that power imbalance for a so-called ‘noble cause’.

On 15 February 2006, after receiving information about the mistreatment of suspects in the custody of some members of the Armed Offenders Squad, the then Director, Police Integrity Mr George Brouwer commenced an own motion investigation pursuant to s.86NA of the Police Regulation Act 1958.

The allegations were that some members of the Squad were regularly involved in the excessive and unlawful use of force on people in police custody. The investigation exposed the flagrant disregard by some members of the Squad for suspects’ rights. Covert audiovisual footage obtained in the course of the investigation depicts a brutal and sustained physical assault by three former members of Victoria Police as well as a purported ‘welfare’ check by a Squad Inspector that failed to protect the suspect.

This report looks at factors that could explain how, or why, some individuals come to betray their oath as police officers. Rather than upholding the law, these officers took the law into their own hands. Using the Armed Offenders Squad as a case study, the report examines the role of loyalty and culture in shaping an individual’s perceptions of what is right and what is wrong.

The report explores how the absence of effective management can create an environment where some police feel justified in acting outside the law in a so-called ‘noble cause’, to get a ‘result’. It highlights the alarming willingness of some police to lie on oath or turn a blind eye to protect themselves or their colleagues.

The report also identifies significant reforms Victoria Police have made to protect the rights of suspects and to address other issues exposed by the OPI investigation. Victoria Police acted swiftly to disband the Armed Offenders Squad once evidence that appeared to substantiate allegations of assault emerged. Replacing the Squad with a task force model has produced positive outcomes. Not only has there been a significant reduction in complaints against detectives working in the area, but arrest and conviction rates have also improved.

The report concludes by outlining recommendations intended to reduce the risk of improper conduct and promote accountability for professional policing. The Victorian community is entitled to expect police to be skilled in detecting, investigating and prosecuting criminal conduct. Police must not take the law into their own hands for the sake of a ‘result’. Therefore, a number of recommendations relate to structural checks and balances intended to act as a deterrent to any who remain within Victoria Police who have the inclination and arrogance to ignore our system of justice.

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BACkGrOund

The OPI investigation into the Armed Offenders Squad took place in the context of concerns about the number of complaints received by OPI and its statutory predecessor about police assaults and police use of excessive force on citizens. A statistical analysis of recorded complaints from July 1999 to June 2006 indicated that the Armed Offenders Squad had a disproportionate number of complaints compared to all other areas of the Crime Department, including squads that deal with offenders of a similar profile. (See Figures 2 and 3). While many of the complaints were not able to be proven to the requisite standard, when viewed as a whole they appeared to indicate an alarming pattern of improper behaviour.

At an early stage in the investigation, information was obtained which gave credence to concerns that some assaults and/or incidents involving excessive force were taking place. To obtain further corroborative evidence, electronic surveillance devices were installed in an interview room used by Squad detectives. This resulted in an audiovisual recording that was ultimately shown in the OPI public examinations of witnesses in September 2006 and released to the public by Magistrate Lauritsen in March 2008. The recording depicts a person being physically assaulted and verbally abused over a four-hour period.

Prior to the OPI public examination, relevant members of the Squad were questioned in private hearings.1 In these closed hearings each of the witnesses took an oath to tell the truth. In response to individual requests, several of the witnesses were provided with a certificate under section 86PA(4) of the Police Regulation Act 1958. The effect of such a certificate is twofold. Once a certificate has been issued, a witness may be compelled to give relevant evidence, even though it may tend to incriminate the witness. The issuing of a certificate also prevents use of such evidence in any court proceedings except in certain limited circumstances, for example where the person lies or gives false information.

The focus of the examination in the private hearings was the treatment of three particular suspects. Two of the suspects had been arrested on the same day. One of them was depicted in the audiovisual recording. The third suspect had been arrested some 12 months previously. The private hearings were intended to give police witnesses an opportunity to give truthful evidence regarding the allegations put to them. They could exculpate themselves, or provide evidence of their own misconduct or the misconduct of other police members, under the protection provided by confidential, private hearings and, in many cases, by the section 86PA(4) certificates.

In the private hearings, witnesses against whom allegations had been made categorically denied any wrongdoing. Those involved in the events depicted in the audiovisual recording specifically denied taking part in any assaults.

1 See Office of Police Integrity Annual Report 2006 – 2007 pp26–27 for a discussion about the rationale for questioningwitnesses in private or public hearings.

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Evidence obtained in the private hearings was then assessed in the context of the statements of the complainants and the covert audiovisual evidence. That assessment indicated that there was a willingness by at least some Squad members to give false evidence on oath.

This willingness to lie cast doubt on earlier findings that complaints against Squad members were unsubstantiated. It also gave rise to a concern that broader cultural and management problems existed in the Armed Offenders Squad. This concern was heightened by the behaviour depicted in the covert audiovisual recording. The covert tape also depicted a clearly inadequate ‘welfare check’ being conducted by the Squad Inspector.

Further examinations of witnesses were scheduled to deal with the discrepancies in the evidence. This time, after taking into account public interest and policy considerations, it was decided not to exclude the public.

Public hearings The decision to conduct public hearings provoked significant debate. It continues to be a controversial issue. Some observers are concerned about the impact of the public hearings on the police whose conduct is exposed. The impact on individuals is a serious matter that must be taken into account when deciding whether or not witnesses should be examined in public. In this case, the witnesses had been given an opportunity to admit any wrongdoing in a private hearing under the protection of section 86PA(4) certificates. None of the three officers seen in the audiovisual recording took advantage of that opportunity. They and their colleagues maintained steadfast denials of any wrongdoing despite the incontrovertible evidence of the audiovisual recording. There was a real concern that continuing to deal with the matters in private would not be effective in eliminating the conduct depicted in the audiovisual recording. There was a need for immediate action to protect the public.

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wHAT THe inVeSTiGATiOn reVeALed

The circumstances of arrest The two cases that were the specific focus of the investigation had a number of common features.

Arrest • Two of the three suspects (the main suspects) had criminal histories involving violent offences, including the use of firearms.

• In both cases, police took appropriate action to ensure safe arrests in public places.

Suspects’ behaviour post-arrest • The suspects were handcuffed following arrest and during their transfer between the

arrest scene and the interview location.

• The suspects, once secured, were compliant and did not pose an immediate physical threat.

The allegations

Assaults • Both main suspects allege that they were assaulted for particular reasons. In the first case, the suspect believes he was assaulted in order to make him implicate a co-offender. In the second case, the main suspect believes he was assaulted to encourage him to reveal where he had hidden a gun he had allegedly used in an armed robbery.

• In one case, the main suspect was taken to Springvale Police Station before being taken to St Kilda Road. He alleges that he was assaulted at Springvale Police Station by at least two members of the Armed Offenders Squad before being driven from Springvale to St Kilda Road.

• Both main suspects allege that they were physically assaulted during the drive to St Kilda Road Complex, a drive of approximately 45 minutes for each suspect.

• Both main suspects allege that during the time they were held in interview rooms at the Armed Offenders Squad offices, they were assaulted by more than one member of the former Armed Offenders Squad.

• They both said they were punched and kicked.

• They both said they suffered injury as a result of tight handcuffs or the use of plastic cable-tie restraints. The first suspect said the plastic cable-ties applied to his wrists were deliberately ratcheted tighter to cause him pain.

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• In the first case, the suspect said he suffered severe injuries after leaving the Squad officers. As he was exiting the St Kilda Road Complex, he was taken to the car park via some stairs. He said that as he approached the top landing of the stairs the Squad member who had preceded him up the stairs stopped, turned to face him, and went to kick him in the face. The suspect said he saw the kick coming and turned his head to the right. He said the force of the kick caused him to spin around and fall down the stairs headfirst. When he landed on the middle landing, his head crashed and hit the wall and his left knee hit the edge of the bottom step. His right knee crashed into the landing.

The OPi audiovisual recording The audiovisual recording depicts what happened to one of the main suspects in the interview room at the Armed Offenders Squad offices.

Among other things, the video and audio evidence in the interview room confirms the following:

At around 6:00pm, two members of the Squad (Officer One and Officer Two) are seen assaulting a suspect in an interview room at St Kilda Road Complex shortly after he had been lodged there.

At about 6:05pm, a purported ‘welfare check’ occurs when an unidentified police officer introduces the Squad Inspector to the suspect. The Inspector can be heard saying: “It’s going to be a long hard day for you, pal. It’s going to be a long day for you. Alright. I suggest you listen to some of the advice that the boys are going to give you. It might be a lot less painful. A lot easier for you, alright?”

At about 6:17pm, the suspect is dragged from his chair and assaulted by the two members of the Squad. During the assault Officer One told the suspect to “Show us some fucking respect here” and, between slapping or punching the suspect, he said the words “Fucking … Armed … Robbery … Squad”.

At 6:21pm, shortly after the assault recorded above, an unidentified police officer enters the interview room and throws a box of tissues on the table and says words to the effect of “Don’t bleed everywhere”.

At about 6:50pm, in the presence of Officer Two, Officer One again assaults the suspect by slapping him to the left side of his face numerous times with his right hand. As he was assaulting the suspect, Officer One says words to the effect of “That ear is coming off by the end of the day”.

At about 8:00pm, a third officer (Officer Three), in the presence of Officer Two, assaults the suspect before commencing to tape a formal record of interview. Officer Two can be seen launching himself over the desk to attack the suspect and whilst Officer Two has him on the ground apparently punching him, Officer Three walks around to them and kicks the suspect a number of times whilst he is on the ground being assaulted by Officer Two. The suspect can be heard asking for a Melways so that he can show them where a gun the police are searching for is located. Soon after, a Melways is thrown on the table.

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Following these assaults and prior to turning on the tape recorder to tape the formal record of interview, Officer Two told the suspect that he did not mind if the suspect does a ‘no comment’ interview but tells him not to ask for a solicitor because that would be, “Fucking me around, alright”.

At 8:06pm, the tape recorded interview commences. Officers Two and Three identify themselves on this recording. The audio-taped record of interview is also recorded on the covert video and covert audio.

At 8:24pm, Officer Two and Officer Three leave the interview room.

At 8:36pm, Officer Three returns to the interview room and asks the suspect about the location of the gun. The suspect tells him that the gun is under the back seat of the car, which police have impounded.

At 9:40pm, the suspect was taken from the interview room to the Bail Justice.

At 9:46pm, the suspect returns to the interview room. Officer Two follows him into the room and says, “What a pathetic cunt you are … saying all that about your mother. You couldn’t give a fuck about your mum …” About 20 seconds later Officer Two leaves the interview room.

At 10:12pm, an Acting Sergeant enters the interview room for a ‘disposal interview’. He asks, “How you going?” and tells the suspect that he is remanded. The suspect mentions a telephone call and the Acting Sergeant says, “Happy with everything else?”

At about 10:17pm, after the suspect’s request to make a telephone call, which had been refused throughout the afternoon, evening and night, Officer Two enters the interview room and hits the suspect with a large cream-coloured telephone saying words to the effect of, “Want a phone call? Here it is, here’s your fucking phone call … piece of shit. Don’t learn about the attitude, do ya? Want to make another one?”

At no time between 6:00pm and 10:23pm when the suspect was taken from the interview room was he offered or provided with anything to eat or drink.

The suspect was consistently denied access to a solicitor or telephone contact with a family member.

The covert audiovisual tape makes it plain that the suspect did not do anything to provoke the assaults upon him. The tape depicts him generally sitting quietly, often with his head in his hands, both before and after the assaults.

It is also clear from the audiovisual tape that the assaults were occurring in the context of Officers One and Two pressuring the suspect to confess, and more particularly to give the whereabouts of a gun used in a robbery that was the subject of the Armed Offender Squad investigation.

It should be noted that the information provided to police before the suspect was arrested indicated that he had a gun located underneath the back seat of his car. A search of the car before the suspect was taken to the St Kilda Road Complex failed to locate the gun. It was only after a second search was conducted that the gun was located underneath the back seat of the suspect’s car, as indicated in the preliminary advice to police.

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Outcome of the investigation The purpose of this report is not to examine in any further detail the evidence relating to specific allegations. Rather, its purpose is to examine factors that appear to give rise to the conduct established by the evidence. In the end, assaults against only one suspect had the necessary evidence to support criminal proceedings. These were the assaults that were depicted in the covert audiovisual tape which gave independent corroboration to the suspect’s version of events. See Appendix One for the outcome of Magistrates’ Court proceedings against three former members of the Squad.

In the other cases, the suspects’ versions of events conflicted with the version of police, who steadfastly maintained that they had done nothing wrong. As there was no independent corroborative evidence to support either version of events, the allegations of assault were unable to be established beyond reasonable doubt. It is clear that some complaints of assault by police are unfounded. However, the OPI analysis of complaints made against members of the Armed Offenders Squad and its predecessor spans four decades and demonstrates strikingly similar themes. In most cases complainants have had no opportunity for collusion, yet the complaints demonstrate a consistent and signature pattern of conduct.

The rapid closing of ranks and steadfast denials of witnesses from the Armed Offenders Squad in the public hearings, when seen in a historical context, add weight to the concern that the violence revealed on the covert audiovisual tape was neither an isolated nor unusual occurrence. Rather, it appears symptomatic of broader problems in the structure and ethos of the Squad.

As a result, the next section of the report focuses on the environmental factors that may have contributed to, or permitted, the occurrence of serious misconduct in such an entrenched way, over such a lengthy period.

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CuLTurAL iSSueS

A force within the force The picture that emerged over the course of OPI’s public hearings was that of a semi-autonomous subculture; a “Force within the Force”, in which some team members perceived themselves as both above the law and unanswerable to Victoria Police discipline.

In 1999, Victoria Police amalgamated the Armed Robbery Squad, Special Response Squad and the Prison Squad, renaming the division the Armed Offenders Squad. In spite of these changes, it became apparent throughout the OPI’s investigation that certain members of the Squad continued to identify with the past notoriety of the Armed Robbery Squad. The covert audiovisual tape depicts one Squad member saying to the witness “Welcome to the Armed Robbery Squad” just before the suspect is assaulted.2

The Beach Inquiry into allegations of corruption in the Victoria Police Force culminated, in 1979, in adverse findings against 55 members. Several of these members belonged to the then Armed Robbery Squad. Beach said:

… whilst it is virtually impossible on the material placed before the Board to attach percentage figures to Police involved in malpractice, evils have been uncovered which demonstrably require remedy. Indeed some of the abuses exposed in relation to one particular “elite” Squad, namely the Armed Robbery Squad … are of themselves so grave as to warrant the most prompt institution of safeguarding reforms …

For myself, and bearing in mind the matters previously adverted to in this Report, I would respectfully endorse and adopt the language of the then Solicitor-General appearing at page 5 of his Report of the 12th October, 1965, viz. – “The evidence which I have received has led me to the conclusion that the evils which I have referred to take place more often than on occasional or isolated instances.” 3

The Armed Robbery Squad also featured prominently in complaints to the short-lived Police Complaints Authority. OPI recently reviewed 230 complaint files from the Authority, which operated for 22 months from July 1986. A disproportionate number of complaints dealt with by the Authority related to allegations against Armed Robbery Squad members. Most of the complaints related to allegations that Squad members had assaulted or used excessive force when arresting suspects.

The statistical analysis of complaints from 1999 to 2006 conducted by OPI as part of its investigation into the Armed Offenders Squad adds further clarity to the pattern of violence associated with Squad members. The fact that, historically, complaints were largely unable to be substantiated is not surprising. The OPI investigation demonstrates the difficulties faced by a complainant if he or she lacks independent corroborative evidence to support his or her version of events and has the misfortune to be confronted

2 Analysis of surveillance footage 10 May 2005, AOS, Interview Room South, OPI DOC/06/17232, p1 3 Report of the Board of Inquiry into Allegations against Members of the Victorian Police Force, Volume 1, Melbourne,1976, pp60–61

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by police who are prepared to take the law into their own hands. Undoubtedly some police have been prepared to decide guilt without recourse to courts, mete out punishment to those they consider deserve it, and lie on oath or turn a blind eye to protect themselves or their colleagues.

Loyalty to Squad above all else The strength of team loyalty that puts the Squad’s interests above all else, including self-interest, became evident throughout the OPI public hearings. Loyalty to the Squad and fellow Squad members meant members actively obstructed the OPI investigation.

The nature of policing requires teamwork, trust and solidarity. These attributes, in turn, breed loyalty. However, despite its many virtues, police loyalty becomes problematic when it is misplaced. It is neither legitimate nor admirable for loyalty to a squad to supplant or overshadow organisational values, or for it to be used to close ranks and ward off external scrutiny, or to conceal criminal and morally unethical practices. Misplaced loyalty that tries to protect police who have acted outside the law betrays the majority of police who work conscientiously to uphold the law.

The loyalty or brotherhood exhibited by members of the Armed Offenders Squad was divisive, insular, and exclusionary. Their ‘us versus them’ mentality reflected an elitist superiority within Victoria Police. Rooted in the notion of the ‘noble cause’, it is, in reality, contemptuous of the law and the rights of criminal suspects, and dishonours the majority of Victoria Police men and women.

Squad branding The Armed Offenders Squad branding symbolises that Squad members set themselves apart from the rest of Victoria Police. This is illustrated in a newspaper article that appeared after the Chief Commissioner disbanded the Squad.4 The Chief Commissioner’s meeting to tell Squad members about the decision to disband the Squad was covertly recorded and that recording released to the media. The article that described the meeting included a poem apparently written by one or more members of the Squad. Titled Ode to the Armed Offenders Squad, it is set out below:

A Squad of men all as one, Ready to fight until the job’s done, The crime goes on, much more not less, dependence is clearly on the A.O.S., When banks get robbed and policemen are shot, The hierarchy cries, “Who have we got, Who can clean up this great mess, Let’s call on the men from the A.O.S.”, They’re hard and they’re tough and they’re professional too, They do what they have to do, each man and each crew. Yet when the dust settles and the crims wipe their eyes, the men at the top believe the crims’ lies. They point and they slander time after time those good men and true from the A.O.S.,

4 Herald Sun 15 September 2006

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And the bosses believe them, have them reprimanded, do that again and they’ll be disbanded, But the men go on; they know what’s right, they won’t give in without a good fight. The crims can’t win, we know that for sure, the A.O.S. will come back for more. The time has come to sit and reflect, moments in the Squad a few I’ll select. Those early crisp mornings, while Melbourne’s asleep, those men are out there, the peace they will keep. The sledge swings high and the door goes in, darkness and fear and thoughts of their kin. The man that they want is an armed robber, he is dangerous, and armed and likely to flee. The entry is smooth and the capture is sure, the crim is trussed up face down on the floor. They’ve done a good job, the bosses will say, but know that will last but for a day. Because some have complained a door was broken, a dog was kicked and neighbours awoken. But the crim is in the A.O.S. say, the bosses are angry; two complainants today. So long as there’s bad crooks, they’ll need us around, if they’re rid of us then crime will abound. The robbers are here in spirit and mind, they really are men of a good kind. To see what’s wrong and take a chance, to fight for what’s right and then advance. I see no option, I must confess, we really do need the A.O.S. Our future depends on what I might say, the spirit is here and here to stay. It’s not a crime to sit here and cry, just pride yourself in the A.O.S. Black Tie.

Squad members became renowned for wearing black suits, white shirts, dark sunglasses and a team-issue black tie. The ‘men in black’5 regalia (also adopted by the sole female Squad member) created an image, depicted in media coverage of the OPI hearings, of an unyielding clique or band, united together, separate and apart from the broader Victoria Police organisation. The outfits imitate the costumes worn by a network of violent criminals in the film Reservoir Dogs.6 The deliberate identification with Reservoir Dogs was reinforced when a well-known image from the film was used to advertise the Squad’s annual social function, “Robbers Rock”.

The Squad tie that formed part of the uniform is embossed with two gold, intersecting revolvers. In a telling display of the way the Armed Offenders Squad viewed themselves compared to the rest of Victoria Police, this symbol appeared on the Squad’s briefs of evidence against both suspects associated with OPI’s investigation, sent by the informant to the Office of Public Prosecutions and the defendants.

5 Barry Sonnenfield, 1997, Men In Black, motion picture, Columbia Films 6 Quentin Tarantino, 1992, Reservoir Dogs, motion picture, Miramax Films

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Figure 1: Briefs of evidence with Armed Offenders Squad logo

The defacement of the Victoria Police badge on official documents is contrary to Victoria Police policy and should not be tolerated. It this case it demonstrates that some Squad members saw the Squad as a force unto itself.

Specialist squad branding is observed in other policing areas, though perhaps not to the extent demonstrated by the Armed Offenders Squad. Specialist squad branding also appears in organised crime, homicide, drugs and other criminal investigation squads. Police who work in these areas have historically tended to see themselves as the ‘elite’ among police and tended to see the preventative and peacekeeping functions of the police mandate as subordinate to the ‘real’ work of ‘crime-fighting’.7

The Fitzgerald Inquiry suggested that this form of elitism had “fostered and helped corruption”.8 In a similar vein, The Honourable Justice JRT Wood argued (in the 1997 Wood Report) that:

The historical approach to criminal investigation, which has kept it separate from other activities within the Service, has led to the formation of an investigative power base and engendered a sense of elitism among detectives. This has been enforced by the Service providing high pay and allowances to detectives and giving undue status to the detection of crime.9

7 See Garcia, V., ‘Constructing the ‘Other’ within Police Culture: An Analysis of a Deviant Unit within the Police Organization’, Police Practice and Research, v. 6(1), 2005, p68

8 Commission of Inquiry Pursuant to Orders in Council, Report of Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, Brisbane, 1989, p240

9 Royal Commission into the New South Wales Police Service, Final Report, Sydney, 1997, p393

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Many specialist units within Victoria Police have developed their own uniquely recognisable symbols. It is a challenge for police command to ensure that pride in belonging to a specialist unit is accompanied by respect for the work of others and an understanding of the range of skills needed in a modern police service.

The code of silence The divisive loyalty that sets a unit or group apart from others is also associated with what has been described in policing as a ‘code of silence’. The code creates an impenetrable barrier to prevent outsiders from scrutinising or challenging the conduct of the group or its individual members.

Conformity to the code not only prevents openness and accountability, it is also oppressive. The code of silence may be reinforced by those in the ‘brotherhood’ through implied or explicit threats of reprisals, exploiting fears of being shunned or labelled by the peer group, and feeding anxieties about an individual’s career prospects. As was explicitly demonstrated in the OPI public hearings, through the code of silence individuals are called upon to sacrifice their autonomy and personal interests for sake of the brotherhood.

Though unwritten, the code of silence is ingrained and insidious.10 The impact of the code was usefully summarised by the Fitzgerald Inquiry into the Queensland Police Service:

A practical effect of the code is to reduce, if not almost to eliminate, concern at possible apprehension and punishment as a deterrent to police misconduct. The code exaggerates the need for, and the benefits derived from, mutual loyalty and support … Under the code it is impermissible to criticise other police. Such criticism is viewed as particularly reprehensible if it is made to outsiders. Any criticism which does occur is kept under the control of those who have authority and influence within the Force … To the obvious benefit of those with something to hide, the police code also ensures that critical activities of police officers are largely immune from scrutiny. The police code effectively requires that it be assumed that whatsoever is done by a police officer legitimately occurs in the course of his duty.11

Throughout the OPI investigation into the Armed Offenders Squad, police regularly invoked the code of silence in an attempt to frustrate the investigation. Even OPI’s attempts to obtain background information about the Squad invoked the code. A former Squad Sergeant responded to a request for information as follows:

10 Commission of Inquiry Pursuant to Orders in Council, Report of Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, 1989, Brisbane; Royal Commission into the New South Wales Police Service, Final Report, Sydney, 1997; Report of the Board of Inquiry into Allegations Against Members of the Victorian Police Force, Volume 1, Melbourne, 1978; Task Force Victor, Police Shootings: A Question of Balance, Melbourne, 1994; Knapp, W. Report of the Commission to Investigate Alleged Police Corruption, George Braziller, New York, 1972; Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department, Report, New York, 1994; Independent Commission on the Los Angeles Police Department, Report, Los Angeles, 1991.

11 Commission of Inquiry Pursuant to Orders in Council, Report of Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, Brisbane, 1989, p202

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I have delayed replying to you but feel the time has come to convey my feelings. You and your office have no credibility and to include an excerpt from the force’s mission statement is, to say the least, offensive. I have copied the excerpt you have sent to many members just in case you’ve forgotten it. … it is the OPI’s view that a member who fails or refuses to assist the OPI in the investigation of a criminal offence is in conflict with the Force’s mission to “provide a safe, secure and orderly society by serving the community and the law.” Do not insult me or my colleagues again.12

In the course of the investigation, Squad members consistently refused to provide information about the complaints and allegations under examination. Only the Inspector who had conducted the ‘welfare check’ identified himself, once he had been shown the tape. However, apparently invoking the code, he went on to say he could not identify any other person on the tape.

willingness to lie on oath Apart from the Inspector, each of the squad members shown on the covert audiovisual tape and closed circuit television footage in the car park and lift at St Kilda Road provided either blanket denials or inconsistent and apparently manufactured statements about the events that took place.

The intractability of the denials was taken to absurd lengths by Officer Two and Officer Three who identified themselves on the audiotape of the formal record of interview but refused to identify themselves on the covert audiovisual tape simultaneously recording the interview.

The role of the Police Association The Police Association was provided with a draft of this section of the report and draft recommendations. Relevant comments from the Association’s response are included here. Further comments are set out in more detail at pages 34 –38. According to its Constitution, the objects of the Police Association include the following:

• to promote the interests of members of the Association by every means consistent with the provisions of the Police Regulation Act (Vic) and any regulation made under that Act;

• to improve the conditions of employment and service of members by any lawful means;

• to promote the welfare of members generally;

• to promote discipline in the Police Force and harmony between officers with a view to improving the efficiency of the Force.13

As Wood notes, the intuitive reaction by police to external scrutiny has, Australia-wide and almost without exception, been one of denial and defence.14 In Victoria,

12 OPI DOC/07/146613 The Police Association, Constitution, ss3a-d14 Wood, J. (2004) ‘In the Wake of the Royal Commission into the New South Wales Police Service’, paper presented at the International Society for the Reform of Criminal Law, Keeping Justice Systems Just and Accountable: A Principled Approach in Challenging Times, Canada, 8–12 August 2004

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Police Association officials were vocal critics of OPI’s investigation and of the Chief Commissioner’s decision to disband the Squad. They encouraged industrial action by Victoria Police members, led a protest rally in response to the Squad’s disbanding, and sought to challenge the Chief Commissioner’s decision in the Industrial Relations Commission. In its response, the Association maintains that it behaved ‘professionally’ and in pursuit of legitimate industrial objectives. In my view, however, the militancy of the action taken, in the absence of any criticism by the Association of conduct of the kind shown in the audiovisual recording, was at odds with the Association’s constitutional objects. In its response the Association states ‘that it is absolutely opposed to or criminal conduct by any member of the police force’. This statement is welcome. Yet such utterances after the event are no substitute for contemporary action.

The general welfare of members and the promotion of discipline within Victoria Police are served by a culture that welcomes rather than resists scrutiny, openly addresses rather than remains silent on the issue of professionalism and police corruption, and assures members who speak out against misconduct that they will be supported by both the organisation and its union. Noting similar issues in New South Wales, Wood made the following observations in relation to the necessary rethinking of union objectives:

What is required is a change of philosophy that will move on, from the offering of bare platitudes in relation to police integrity, to acceptance of the fact that the greater interest of the general body of their members lies in having a corruption free Service.15

Police loyalty means something more than merely support and solidarity between colleagues. It also requires that members display a genuine commitment to the oath they have made to discharge their duties faithfully and according to law. In order to achieve its objects, the Association must understand that condemning problem behaviours and practices within Victoria Police does not compromise, nor is it inconsistent with, its industrial relations functions and commitment to advocacy on behalf of its members. On the contrary, it will act as a powerful symbol of the Association’s commitment to the future welfare and professionalism of its members.

15 Wood, J., ‘In the Wake of the Royal Commission into the New South Wales Police Service’, paper presented at the International Society for the Reform of Criminal Law, Keeping Justice Systems Just and Accountable: A Principled Approach in Challenging Times, Canada, 8–12 August 2004

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mAnAGemenT iSSueS

One of the most important questions that arises from OPI’s investigations into the Armed Offenders Squad is ‘How did such blatant misconduct and disregard for organisational policy escape the attention and intervention of Squad management?’ The fact that officers were able to assault suspects who were in police custody, and that routine organisational oversight of the unit failed to prevent the development of unorthodox and unacceptable squad practices gives rise to a number of issues. An analysis of these issues indicates two major, interrelated structural problems.

First, the investigation has revealed that the general day-to-day management of the Squad functioned in an erratic and ad hoc manner, provided little consistency or guidance for members and hampered the ability of senior managers to supervise Squad activities. Second, at the time of the incidents in question, membership of the Armed Offenders Squad comprised a number of individuals with considerable complaint histories involving allegations of assault and other serious misconduct.

management structure It is apparent from the evidence obtained by OPI that, at least from 2002, the actual day-to-day supervision of the unit was inadequate. Persistent under-staffing and recurrent transfers of staff meant that there was a procession of acting middle managers, causing the Armed Offenders Squad to be without permanent supervisors for lengthy periods.

Lack of a stable and strong middle management clearly contributed to the fact that an unhealthy Squad culture was able to continue unchecked. The short-lived appointments of some Senior Sergeants and Inspectors made it practicably impossible for them to acquire a detailed understanding of the everyday functioning of the unit, or recurrent problems in relation to particular members. A former Commander of the Crime Department told OPI investigators:

… there were several managers over a period of time who all had management styles and didn’t really have an understanding of the Squad or the people, or weren’t in the position long enough to be making – to be able to make any difference to the way in which the place was managed.16

As a former Squad Inspector said:

… because there had been so many people sitting in the chair and everybody comes in and does things slightly differently, it becomes quite (a) confusing and (b) unsettling for members of the Squad.17

The absence of a stable leadership and lack of diligent supervisors gave Squad members ‘free rein’ to use whatever policing methods they liked. There are indications that the informal Squad culture had gained such strength and impenetrability that the chain of

16 OPI DOC/07/357 p617 OPI DOC/07/347 p14

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command was effectively reversed, to the point where some Squad members considered themselves immune from managerial accountability or authority. OPI investigators were told that one Senior Sergeant “wasn’t totally accepted” by Squad members. Because he was “seen as someone who wasn’t part of the mob”, he was subsequently “sort of a bit ostracised”.18

In contrast, it appears members who were the right cultural fit for the Squad were recruited in a flawed selection process that relied on the personal preferences of senior Squad managers and perpetuated the unhealthy Squad culture. For example, one former Squad Sergeant was promoted to Senior Sergeant despite lacking leadership skills and with what one person described as “his horrendous complaint history”.19

The strength of the Squad’s culture is demonstrated by its ability to withstand later efforts by senior police to rectify problems and to raise the overall performance of the Squad. In July 2003, a new Inspector was appointed to the Squad to relieve a temporary vacancy. Coming from outside the Crime Department, the Inspector identified a number of areas in which the Squad needed to improve its general performance. He developed an action plan with strategies to address issues such as standard operating procedures, staffing, financial management and regional partnerships. Each of the strategies was to be implemented by the Squad Sergeants and Senior Sergeants within designated timeframes. Following his departure from the Squad, the majority of his proposed improvements were shelved.20

For most of the second half of 2005, the Squad operated without an Inspector. In response to the need for effective leadership expressed by those both within and outside the Squad, Victoria Police command appointed a new Inspector in October 2005. He had instructions to reduce the number of complaints against Squad members and to address its increasingly apparent lack of professionalism.

Shortly after his arrival, the Inspector met with Squad members and told them they needed to reduce complaints and improve performance to meet the expectations of senior management. Squad members were told it was important to conduct comprehensive risk-assessments before embarking on particular operations, to adhere to Victoria Police’s clean-desk policy, and to maintain an appropriate “home/work balance”. They were told that video-recording equipment would be installed in the Squad interview rooms and that the Inspector and Senior Sergeant were to be notified when prisoners were brought in for interview. They were also told that they needed to use the proper channels in the chain of command to support their individual decision-making.

OPI investigators were told that, during this period in late 2005 early 2006, new administrative processes were instituted, and outdated or inoperative facilities and resources were replaced. Squad briefings, which had previously taken place in the casual surroundings of the Squad kitchen, were relocated to a newly created operations room. Regular meetings between Senior Sergeants and Sergeants were held. These were intended to provide the Senior Sergeants with relevant information about the operational

18 OPI DOC/07/357 p1519 OPI DOC/07/357 p620 OPI DOC/07/2832

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activities of each crew and to allow Sergeants the opportunity to participate in decision-making and implementation processes, thus engendering a sense of ‘ownership’ and ‘responsibility’.

Ultimately, however, such strategies appear to have had little substantive effect on Squad practices. While the number of complaints diminished in the period immediately following the arrival of the Inspector in October 2005, the fact that some members went on to perpetrate assaults against a suspect in their custody is a clear indication that the warnings and instructions issued to them were ignored.

One explanation for this may be that Squad managers failed to lead by example, or adhere to or enforce their own instructions. Installation of video-recording equipment in each Crime Department interview room was not completed until November 2007. Despite instructions that required members to notify the Inspector when a suspect arrived at Squad headquarters, the Squad Inspector told OPI that he had “no idea” the suspect depicted in the covert audiovisual tape was present until he observed a group of detectives in his office.21 Similarly, the ‘welfare check’ performed by the Inspector appears to have been carried out in a way that could, to Squad detectives at least, appear to have condoned their brutal tactics. The welfare check conducted by the Inspector certainly failed to protect the suspect or to ensure that the police investigation was carried out in a legally and ethically responsible manner.

management of problematic behaviour Police managers have a number of responsibilities when those they supervise demonstrate consistent patterns of problematic behaviour. Foremost is the responsibility to protect citizens who might be the future subject of the problematic behaviour. Linked to this is the responsibility to maintain public confidence in policing and to protect the reputation of Victoria Police. Finally, managers have a responsibility to the individual who displays the problematic behaviour. This involves supporting the individual to take steps to rectify the problematic behaviour.

Lack of strong, consistent day-to-day management at the Armed Offenders Squad might have made it difficult to monitor a number of Squad members who had a history of, and continued to display, problematic behaviour. However, without exception, all of the former Squad managers interviewed by OPI admitted that at some point in their time at the Armed Offenders Squad, they were made aware of the complaint histories and ongoing problematic behaviour of a number of Squad members. Yet none of these former managers could explain what attempts they made to effect sustainable reforms.

The majority of interventions made by Squad managers were reactive, responding to symptoms of an unhealthy culture rather than attempting to effect cultural change. Several members awaiting the outcome of disciplinary proceedings were suspended from duty. Two officers who were considered to be exerting a ‘negative’ influence on the Squad’s culture were transferred to other areas within the Crime Department.

21 OPI DOC/06/19184 p23

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At various times, some Squad managers did attempt a more forward-thinking approach to the management of members with problematic behaviour. One of the Squad’s six crews was identified as receiving an unacceptably high proportion of the Squad’s complaints. Its members were eventually separated and reallocated to different teams within the Squad. Subsequently efforts were made, every year, to vary the composition of crews in an attempt to prevent the development of ‘unhealthy cliques’.22

At another stage, in response to the number of complaints made against Squad members, senior managers in the Crime Department asked the Risk and Research Unit of the Ethical Standards Department (ESD) of Victoria Police to provide a risk profile of the Squad. They also asked for an individual risk-assessment in response to concerns about a specific Squad member. The report of the individual risk-assessment identified that the Squad member had an extensive record of assault-related complaints. The report referred to the member’s uncontrolled anger and aggression when interacting with some suspects. The report also indicated that, in an attempt to prevent further complaints and to provide some sort of sanction, the individual had been temporarily transferred from the Squad to non-operational duties the previous year.

Following receipt of the individual’s risk-assessment report, senior managers met with the member to address the issues raised in the report and to ‘read the riot act’ to the person.23 The impact of this meeting on the subsequent performance of the member appears to have been negligible, despite the person being subject to ‘increased supervision’.24

The member did no additional training and was not subject to a performance management process. There is no evidence to suggest that the member’s subsequent contacts with suspects and witnesses were subject to any sort of risk-assessment process. To OPI’s knowledge, the person has been involved in at least two further serious incidents involving allegations of assault since the ‘riot act’ was read.

Not surprisingly, the Squad managers that OPI investigators spoke to were reluctant to admit they could have done more to manage the problematic behaviours exhibited by Squad members. Managers indicated that there were problems with vetting processes and that they did not have access to an individual’s complaint history when that person was recruited to the Squad. Some were critical of the time the ESD Risk and Research Unit took to complete a risk assessment.

These points have some merit, however interviewees also tried to suggest that Armed Offender Squad members were easy targets for criticism because they carry out a ‘tough’ job and deal with ‘hardened’, ‘treacherous’ and ‘disgruntled’ criminals who are prone to making ‘vexatious’ or ‘frivolous’ complaints. This is not an acceptable explanation. Many other squads within the Crime Department deal with comparable offenders and equally hazardous situations in the course of their duties, yet none has an equivalent complaint profile, as Figures 2 and 3 demonstrate.

22 OPI DOC/06/19486 p1823 OPI DOC/07/357 p2324 OPI DOC/06/19486 p21

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Figure 2: Average number of complaints against Crime Department Squad members, July 1 1999 - June 30 2006

0.0 0.2 0.4 0.6 0.8 1.0 1.2 1.4 1.6 1.8

Armed Offenders

Organised Crime

Sexual Crime

Tactical Response

Homicide

Asian

Arson

Missing Persons and Cold Case

Figure 3: Number of Squad members against whom complaints were made, July 1 1999 - June 30 2006

0 10 20 30 40 50 60 70 80 90 100

Armed Offenders

Organised Crime

Sexual Crime

Tactical Response

Homicide

Asian

Arson

Missing Persons and Cold Case

key number %

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Some managers also tried to rationalise their lack of performance management by suggesting that high complaint rates are a natural and inevitable product of ‘good policing’. The majority of former Squad managers spoken to by OPI said their reason for not doing more to address problematic behaviour was that the members were ‘enthusiastic’, ‘dedicated’, ‘knowledgeable’, ‘experienced’, ‘efficient’, had investigative ‘talent’ or otherwise had ‘excellent’ work histories. Rather they tended to congratulate them and reward them even if they were a bit ‘overzealous’.

The following statement typifies sentiments expressed to OPI investigators by many former Squad managers:

I’d rather see someone out getting complaints for working than sitting on their bums doing nothing, you know. You’re going to accumulate complaints if you work, but nothing – sure you won’t get any if you just sit around and do nothing.25

The notion that complaints correlate with policing activity or are an inevitable by-product of investigations into armed robberies is not only unsound, it is irresponsible. As Victoria Police has successfully demonstrated since the Armed Offenders Squad was disbanded, effective policing does not mean aggressive policing. Nor is it necessary to break rules or bend them to get a result. Overzealousness arising from a belief that the end justifies the means is no longer acceptable in modern policing. The Victorian community is entitled to expect a more professional approach from police.

25 OPI DOC/07/349, p29

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exAminATiOn Of SOLuTiOnS

This section of the report examines measures that should prevent the re-emergence or future development of unacceptable behaviours within Victoria Police such as those identified in the former Armed Offenders Squad. It examines the current performance of police involved in investigating armed robbery offences under the crime management model adopted by Victoria Police. It also looks at some practical changes to policies or procedures that should serve the dual purpose of protecting those in police custody and also protecting police from false or malicious complaints.

major crime management model In September 2006, Victoria Police announced it would disband the Armed Offenders Squad. This announcement followed the commencement of a major crime management model within the Crime Department. The model replaces the old ‘squad’ structure with a more flexible and responsive task force model. Features of the model include measures to prioritise the use of resources and that enable major crime investigations to draw on a range of resources from police regions as well as from within the Crime Department. Increased accountability and review mechanisms measure the effectiveness of resources in tackling major crime. Statistics provided to OPI give an early indication that the model is achieving results. Not only does it appear that the rate of solving crime has increased, complaints have fallen dramatically.

Figure 4: Comparison of statistics: Armed Offenders Squad and Armed Crime Task Force 26

indicator Armed Offenders SquadJul 03 – Sept 06 (39 months)

Armed Crime Task force Sept 06 – mar 08 (18 months)

Arrests 142 79

Briefs 189 136

Matters solved 139 (47%) 95 (80%)

Matters unsolved 157 (53%) 24 (20%)

Complaints lodged 31 2

Other management strategies Some of the reasons given by former Squad managers for their difficulties in adequately managing staff with problematic behaviour were valid. There are systems that could be implemented by Victoria Police to ease the burden on those responsible for staff

26 Information in this table was provided to OPI by Victoria Police

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with performance issues. An early intervention system and an accessible complaints management system linked to a performance management system would improve opportunities for day-to-day managers to effectively intervene and address issues for staff with problematic behaviours. OPI recently tabled a report on the review of the Management Intervention Model. The report, Improving Victorian policing services through effective complaint handling, makes a number of recommendations about these systems and other management strategies that should be adopted by Victoria Police to improve professional policing services. Implementation of these measures would help ensure conduct exhibited by members of the Armed Offenders Squad becomes a thing of the past.

Changes to policies or procedures The OPI investigation into allegations involving the Armed Offenders Squad identified a number of weaknesses in policies and procedures that have implications for Victoria Police beyond the investigation of major crimes.

Installation of video equipment in police vehicles Both main suspects in the cases involving members of the Armed Offenders Squad alleged that they were assaulted by Squad members when they were being driven to the St Kilda Road Police Complex. Other complainants have made similar allegations.

In early 2007, Victoria Police announced that in-car video technology was to be installed in traffic management cars to scan outside the car and to provide an unbiased and accurate representation of events that can be used in court or, if necessary, reviewed at the time of an offence to clarify details. It also provides added safety for police working solo.27

The installation of appropriate audiovisual equipment in all Victoria Police operational vehicles warrants serious consideration. Videos that scanned inside the vehicle would provide benefits to both police and passengers in custody. They would act as a deterrent to police mistreatment of suspects and proof against false allegations. They would also provide an accurate record of any conversation that took place in the vehicle. This could satisfy Crimes Act 1958 provisions intended to protect the rights of accused. For example, an audiovisual record could corroborate that a caution had been given or an admission had been made.28 There might be no need to subsequently confirm those matters on a later recording. The device could be activated at the discretion of the driver, who could be asked to explain why a device was not activated if a civilian was in the vehicle. Appropriate mechanisms would need to be in place for the storage and destruction of recordings. Legislation regulating the installation of cameras in taxis sets a precedent for addressing privacy concerns.29

27 Victoria Police media release 20 March 2007 28 Crimes Act 1958 s 464H 29 Transport Act 1983 ss 158 B & C

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Use of police divisional vans to transport suspects Each of the complainants in the specific cases investigated by OPI had a history of violence. Where it is not possible to avoid a lengthy journey between the place of arrest and the nearest appropriate interview facility, consideration should be given to using police divisional vans for transporting potentially dangerous individuals. While arrangements would necessarily be contingent on the availability of appropriate resources, proper operational planning should, in these circumstances, include arrangements for divisional vans to be made available following the apprehension of a potentially dangerous suspect.

In addition to providing a secure and safe mechanism for transporting a suspect, the use of police divisional vans and uniformed personnel for transportation of suspects frees up investigators to pursue further investigative inquiries. In the cases OPI investigated, three members of the Squad were required to transport each of the three suspects to St Kilda Road Police Complex.

Video surveillance of suspects throughout their time in custody Anecdotal information provided to OPI about other jurisdictions suggests that the presence of video surveillance devices reduces the number of allegations of assault in police custody. There are some practical difficulties in making an electronic record of the whole time a suspect is in police custody, particularly when a suspect may be moved to various locations whilst in custody. The length of time a suspect may remain in custody also varies.30 However, the audiovisual recording of suspects for at least the majority of the time they are in police custody serves an important function by providing an independent record that accounts for the conduct of both police and prisoners. Since the OPI public hearings, the Crime Department has advised that it has installed video surveillance devices in every interview room. OPI considers that the installation of devices in reception areas, interview rooms and holding cells in all police premises would provide cost benefits by reducing the amount of time spent investigating allegations of assault in police custody.

‘Reasonable time’ in custody The period of time a person can be held in custody in Victoria has been settled legislatively since the ‘six-hour’ rule was revoked in 1988. The Crimes Act 1958 provisions make it clear that a person may be detained for a reasonable time for questioning and so that police can carry out investigations.31

In each case examined by OPI, very little time was taken up with formal records of interview. One suspect was in police custody for more than 12 hours, as Figure 5 demonstrates. In that time the suspect was formally interviewed on four occasions for a total of one hour and thirty-six minutes.

30 In the cases OPI investigated, suspects were kept for approximately 6 and 11 hours respectively. 31 Crimes Act 1958 s 464A (4)

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Figure 5: Suspect’s time in custody

event Time Stop Time duration

Taken into custody 1:35p m

Interview starts 3:05p m Suspended 3:39p m 34 min

Interview resumes 7:18p m Suspended 7:30p m 12 min

Interview resumes 8:08p m Suspended 8:14p m 6 min

Interview resumes 8:34p m Concluded 9:18p m 44 min

Appears before Bail Justice 11:45p m

Lodged at Melbourne Custody Centre

2:09p m

next day

Totals 12 hrs 24 min 1 hr 36 min

The other main suspect was detained for more than six hours. Of that time 14 minutes were spent in a formal record of interview. An inspection of investigators’ diaries indicated some investigative activities had taken place. However, for the suspect who was detained for 12 hours there was insufficient detail to account for the delays between interviews. In my view Victoria Police need to demonstrate that the period a suspect is detained in custody is appropriate. The suspect in this cases was remanded in custody. He was available for further questioning in prison. I am concerned that he was detained longer than was reasonable. The behaviour of police in this case seriously jeopardises the confidence and trust placed in them when the six-hour rule was revoked.

At this stage, I have insufficient information to determine whether the experience of the individual outlined is a symptom of a wider problem. I will continue to monitor this issue.

Cautioning and informing persons in custody of their rights The obligations of investigating officials and the rights of persons in custody are set out in the Crimes Act 1958. These include the obligation of police to caution a suspect about his or her right to remain silent, as well as the right of a suspect to contact a lawyer, friend or family member, unless this would compromise the police investigation.32

In one of the cases investigated by OPI, the suspect says he was denied the right to contact a friend or relative. However, before one of the Squad formally denied him that right, a search warrant had already been executed at the home of his mother and step-father.

32 Crimes Act 1958 s 464A (3) & s 464C (1)

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A Squad Sergeant had already told them their son had been arrested and where he was. There was no apparent reason for continuing to deny him his statutory right to contact a friend or relative.

The covert audiovisual tape that forms part of the evidence in this investigation establishes that, just prior to the commencement of the formal audio-taped record of interview, this suspect was also directed by a Squad member not to ask to contact a lawyer. The suspect was told that any request for a lawyer would be refused and that if he did ask for a lawyer on tape, the recording would have to be stopped and restarted. To carry out this threat, the Squad member would have had to destroy the tapes on which the request was made, then get the suspect to repeat the interview on fresh tapes. It appears he was prepared to deliberately destroy what otherwise should have been admissible evidence just to compel the suspect not to exercise his rights.

After he had been interviewed, this suspect asked another officer who was conducting a check on him if he could make a phone call. A short time later the Squad member took a phone into the interview room, hit the suspect over the head with it, and shouted: “Here’s your fucking phone call”.

The consequences of failing to record what happens when a suspect is denied her or his statutory rights are not prescribed in the legislation. However investigators risk having improperly obtained evidence excluded at the discretion of the trial judge.33

Victoria Police are currently required to document when the discretion not to allow a person the right to contact a friend or relative is exercised.34 I am advised, however, that there is no mechanism for this to be systemically monitored or audited by Victoria Police. The additional responsibilities and obligations imposed by the Charter of Human Rights and Responsibilities Act 2006 (the Charter), underscore the importance of Victoria Police monitoring the occasions on which a person in custody is denied access to statutory rights. Victoria Police must be able to assess whether such a denial breaches the Charter and must be prepared to sanction those who breach the Charter and provide redress to those whose rights have been breached.

Checks by independent police members during a suspect’s time in custody Despite the comprehensive list of instructions regarding independent police checks, in one case investigated by OPI, what purported to be a welfare check was, in my view, nothing of the kind, despite the fact that it was recorded as such in the Attendance Module.

The covert audiovisual recording indicates that the Squad Inspector said the following:

“It’s going to be a long hard day for you, pal. It’s going to be a long day for you. Alright. I suggest you listen to some of the advice that the boys are going to give you. It might be a lot less painful. A lot easier for you, alright?”

33 See Pollard v R (1992) 110 ALR 385 & R v Li {1993} 2 VR 8034 VPM Instruction 113 -3

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There is a mumbled response from the suspect, then the Inspector leaves. Following the departure of the Inspector, the suspect was left alone and put his head on table, doubled over. The check took 18 seconds. The Inspector did not ask the suspect if he was injured, nor check for himself to determine the suspect’s physical or mental condition, or whether he had any obvious injuries.

The failure of the administrative processes intended to protect the welfare of the suspect in this case is disturbing. The suspect was unable to leave the interview room of his own accord. Under escort he left the interview room for a short period to have his finger prints taken. He told OPI investigators he was not provided with anything to eat or drink or an opportunity to use a toilet. This is corroborated by the covert recording in relation to the time he was in the interview room. This treatment alone, irrespective of the assaults and oral abuse to which he was subject, constitutes a serious breach of his rights under the Charter.

I am unable to say whether the failure of the Inspector in this instance is an aberration or an indication of a systemic problem.

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COnCLuSiOn

The Armed Offenders Squad should be regarded as a cultural relic within Victoria Police. Too many of its members believed that ‘the end justified the means’ and that bashing a ‘crook’ was a community service. The Squad, through a lack of appropriate monitoring and accountability within Victoria Police, was allowed to develop its own culture, out of step with the organisation’s direction. Its members drew comfort from the strong support they received from the Police Association.

Victoria Police has made significant progress since September 2006. The current performance of the Armed Offences Task Force appears to bear little resemblance to the old, especially in terms of health and well-being, performance, and complaints. The challenge for Victoria Police is to maintain its impetus to achieve sustained reforms that well and truly cast the undesirable practices of the Armed Offenders Squad to history.

Parliament has given police significant powers of arrest that include the right for police to use reasonable force when depriving individuals of their liberty. The maintenance of public trust necessitates public confidence that police will not abuse these powers. Victoria Police need to continue to build a culture of openness and accountability. Increasingly modern technology is available to provide unbiased and accurate representations of police conduct. The costs of installing technological support are ameliorated by the police time saved in not having to investigate complaints about assault in police custody.

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reCOmmendATiOnS

Some of my conclusions are specific to the OPI investigation into the Armed Offenders Squad. However, in the context of an assessment of complaints of assault received by my office, many of my conclusions have broader application within Victoria Police.

The recommendations I have made regarding equipment clearly have resourcing and training implications. However, in addition to ensuring protection for suspects and compliance with the Charter, their implementation will assist investigative processes and improve the safety of police.

I recommend that:

• Victoria Police takes steps to ensure that persons in custody are treated in accordance with the law, Chief Commissioner’s Instructions and the Charter of Human Rights and Responsibilities.

Victoria Police gives consideration to:

• The installation of audiovisual recording devices in all operational police vehicles.

• Improved processes of transportation of suspects in custody including:

- Where practical, requiring arresting officers to take a suspect to closest police premises for interview and further investigation;

- Using secure vehicles for potentially dangerous suspects

• The installation of audiovisual recording devices in reception areas, interview rooms and holding cells in all police premises.

• Improved processes for welfare checks, including:

- Requiring comprehensive questioning of suspects regarding their welfare;

- Video recording of checks.

• Implementing measures to monitor compliance with the Charter for people in police custody.

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response by Victoria Police and the Police Association Victoria Police was provided with a copy of a draft of this report. The Police Association was provided with a copy of the recommendations and an extract from the report dealing with the role of the Police Association. Their responses are as follows:

Recommendation

The installation of audiovisual recording devices in all operational police vehicles.

Victoria Police response Victoria Police currently operates a fleet of 2200 operational vehicles. Of the 160 divisional vans, all currently have prisoner compartment video monitoring. There is an ongoing “in car video” trial program whereby all Traffic Management Unit (TMU) vehicles will be fitted with video recording equipment which records activities external to the vehicle such as interceptions of motorists, primarily for the protection of the police. The vehicles being fitted operate outside the metropolitan area and do not have access to the central mobile data terminal (MDT) facilities. Currently 30 TMU vehicles are being outfitted with a view to increasing that number to between 60 and 90, at an approximate cost of $20,000 per vehicle.

Whilst the recommendation has obvious merit, it must be balanced against the initial installation cost along with ongoing maintenance and regular refitting costs associated with the high turnover of vehicles. A low-tech alternative such as that utilised in taxis may provide a more practical solution combined with documented welfare checks at each point of contact, should manage the possible risk of coercion of suspects en route to interview. Additionally, the encouraged use of hand-held digital recording devices would quickly obviate spurious allegations.

Early advice indicates that the incorporation of video/audio recording facilities in operational vehicles could possibly be most efficiently and economically achieved by integration in the future MDTs when the contract is renegotiated. Such an approach would also address OH&S issues that arise from bolt-on equipment solutions.

Police Association response The Association has long campaigned for (this) innovation… we are please that you have made (this) recommendation which we believe if implemented will afford our members some protection.

Recommendation Improved processes of transportation of suspects in custody – Where practical, requiring arresting officers to take a suspect to closest police premises for interview and further investigation.

Victoria Police response The operative word in this recommendation is practical. In most instances, suspects are in fact taken to the nearest open police facility and processed but in some more significant matters, especially where large amounts of exhibits or information are required to be utilised

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during interviews or investigation, it is not practical to utilise local facilities. Likewise where numerous offenders are taken into custody in close proximity, it is necessary for security reasons to use remote facilities.

Recommendation Using secure vehicles for potentially dangerous suspects.

Victoria Police response Again practicality weighs heavily on this recommendation. Prior to taking suspects into custody, or where a suspect displays a high level of aggression, a risk assessment is undertaken and if deemed appropriate, a local divisional van is utilised to transport the suspect. It must be appreciated that the local divisional vans are the workhorse of community policing and on many occasions, particularly on afternoon, night shifts and weekends, are the only police vehicle servicing all the needs of the local community, usually an entire municipality. On the majority of shifts, the divisional van is actually responding to calls for assistance and has a backlog of outstanding jobs to attend to.

Police Association response The Association has long campaigned for (this) innovation … we are please that you have made (this) recommendation which we believe if implemented will afford our members some protection.

Recommendation The installation of audiovisual recording devices in reception areas, interview rooms and holding cells in all police premises.

Victoria Police response Currently all 24 hour police stations and new 16 hour stations are equipped with video monitoring and recoding capabilities. In some instances video facilities are being updated to current digital standards. The currently installed facilities do not include audio recording facilities and to date this capability has not been researched.

Victoria Police has received funding to replace the current TRIM audio tape decks with DVD Digital Evidence Capture (DEC) units. The required 500 units have been funded within a budget allocation of $12M and will be progressively rolled out after the completion of a 1 month pilot program at two 24 hour stations in the near future. The units record to a 2 hour duration DVD and it could be practical to conduct welfare checks using this facility.

Reception areas do not currently have audiovisual recording equipment but many have video surveillance and recording equipment which is also being upgraded to digital standard. The installation of audio recording facilities would encounter significant technical difficulties in many areas due to layout and ambient noise levels etc.

The cell areas in most police facilities are constantly video monitored/recorded and it would be possible in future installations to incorporate audio facilities but again with varying practical constraints. Likewise, it would be possible and probably less technically challenging to install

35

audio/visual recording facilities in all interview rooms but costing of such an enormous project has not been undertaken and would be well beyond the limits of the Victoria Police budget.

Experience has shown that reliance on CCTV footage in the absence of other evidence can prove problematic. Victoria Police would prefer to develop other defensive practice control systems rather than rely on cost prohibitive high-tech measures.

Police Association response The Association has long campaigned for (this) innovation … we are please that you have made (this) recommendation which we believe if implemented will afford our members some protection.

Recommendation Improved processes for welfare checks including: - Requiring comprehensive questioning of suspects regarding welfare;

Victoria Police response The current Victoria Police Manual (VPM) 113-3 outlines the requirements of independent members conducting welfare checks and although it does not specifically list particular questions to be asked, it is quite clear in articulating the requirements of those conducting the checks. If those conducting welfare checks comply with the instruction, sufficient checks and balances are in place.

Police Association response We are certainly not opposed to the provision of additional welfare assurances for suspects or offenders in custody, but simply note that the implementation of such a process, in the current climate, would require taking additional police from operational ‘front line’ duties.

Recommendation Video recording of checks.

Victoria Police response Where audio-visual recording facilities were available and utilised in interviewing suspects, it would appear appropriate to utilise the same facility to conduct and record welfare checks. There may be evidentiary aspects that require consideration if the welfare checks were recorded on the same DVDs as the interview and the storage of separate DVDs would become a serious practical consideration if that process was adopted.

Recommendation Implement measures to monitor compliance of the Charter for people in police custody.

Victoria Police response On a monthly basis the Crime Department Professional Development Committee (PDC) reviews and audits all welfare checks, video taped searches and the use of CCTV in an effort to improve practices and ensure full compliance with the Charter of Human Rights. Similar initiatives could be implemented in regions to likewise ensure compliance.

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Police Association response The Association supports this recommendation.

Victoria Police also provided the following comments in response to issues raised in this report:

• All Crime Department searches are video taped As a consequence of the 2002 Drug Squad Review, Crime Department now requires that all searches are fully video taped. This procedure has led to a total absence of complaints similar to those of the AOS behaviour at the suspect’s home.

• Independent welfare checks in Crime Department Crime Department has introduced local instructions in addition to the VPM, to ensure the correct undertaking of independent welfare checks.

• Recruitment of Crime Department staff With the implementation of the MCMM in 2006, the recruitment of staff changed dramatically whereby members applied for a position in Crime Department rather than at an individual squad or location. The Crime Department Board of Management thoroughly oversees the placement of staff in particular units with a view to orderly distribution of skills and experience while also being mindful of not allowing unhealthy cliques to establish themselves.

• Time lapse in ESD producing requested risk assessment A search of records at the Ethical Standards Department has failed to locate any record of the requested risk assessment of the Squad and with regard to the criticism of the time taken to obtain risk assessments, it should be noted that a risk assessment is a detailed analysis of several major risk indicators for individuals or locations. Several of the processes still require manual records to be ordered and analysed and there is also significant demand for these documents and they are prioritised according to urgency. In general, areas or persons with large complaint histories, of which management are known to be aware, do not take priority in this process for obvious reasons, as it is expected that local management will be addressing these issues.

• Early intervention system The case study makes mention of an early intervention system but it is not mentioned in the recommendations. Victoria Police developed a basic early intervention system using data from its current complaints governance system in 1999. This system has on the whole shown significant improvements in the behaviour of members who have undergone the risk assessment process as a result of being identified through the system and having management intervention initiatives in place to address their specific issues. The prospect of expanding this system using new technology has been explored for approximately two years.

Victoria Police has recently embarked on market research and construction of the initial business requirements for the development of this system. Dependant on funding allocation, we hope to have this system up and running by the end of this financial year.

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The Police Association also noted the resourcing implications of implementing some of the recommendations and made the following points in response to an extract from the report dealing with the role of the Police Association.

The Association adopted a position of opposing the immediate disbandment of the AOS (Armed Offenders Squad) and of support for our accused (and other) members who, at that time, maintained their innocence and were (quite properly) afforded the presumption of innocence.

For the following reasons

the damage caused to policing and police morale witnessed in other jurisdictions where squads are disbanded and where members are ‘tarred with the one brush’ …

Numerous other AOS members had no criticism levelled against them at all. Yet their positions were taken from them because of the alleged behaviour of a very few, and the Force used a sledgehammer to crack a walnut. It was for that reason, and because of the guilt by association by which the innocent members of the AOS were ‘convicted’ by Force Command, that the Association mounted the industrial challenge to which you refer.

The Association has not in the past, nor does it now, assert the innocence of our members who may be charged with criminal matters before the courts - it would not be proper for us to do so.

However, we cannot be reasonably expected to decry the alleged behaviour of our members (given the ‘presumption of innocence’ to which they were fully entitled) coupled with the fact that they stated they were innocent of the allegations. We are not a jury …

The response went on to state

The Association is absolutely opposed to corruption or criminal conduct by any member of the police force, or persons in any field of endeavour. We believe that, while only a relatively minute number of police ever conduct themselves in a criminal or corrupt manner, their doing so inevitably tarnishes the reputations of the overwhelmingly honest and hard-working police officers in Victoria. In the process of the profession moving forward, there is no place in a police force for the criminal or the corrupt …

We believe that your comments on the Association are unfair and, without wishing to be offensive in any way, lack an understanding of the perspective and role of the Association throughout the course of the AOS process, which was a very trying time for all who were involved. We believe we behaved professionally throughout that time. Yes, we addressed the industrial issues; that was both our entitlement as an industrial organisation and an absolute expectation of our members. We were critical of the public hearing procedure, and the airing of allegations prior to a legal process, which is a position we maintain to this day.

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APPENDIX ONE – OUTCOME OF MAGISTRATES’ COURT PROCEEDINGS

Robert Dabb

On 12/03/2008 – convicted on one rolled-up charge of assault contrary to section 23 of the Summary Offences Act 1966, relating to assaults on 10 May 2006. Sentenced to 10 weeks imprisonment, to be served by Intensive Corrections Order.

On 27/05/2008 – convicted on one rolled-up charge of attempting to mislead the Director contrary to section 86K(1)(c) of the Police Regulation Act 1958, relating to lies told during private and public OPI hearings in July and September 2006. Sentenced to 3 months imprisonment, to be served by Intensive Corrections Order.

Both sentences to be served cumulatively making a total term of 22 weeks (5½ months).

Mark Butterfield

On 12/03/2008 – convicted on one rolled-up charge of assault contrary to section 23 of the Summary Offences Act 1966, relating to assaults on 10 May 2006. Sentenced to 10 weeks imprisonment, to be served by Intensive Corrections Order.

On 27/05/2008 - convicted on one rolled-up charge of attempting to mislead the Director contrary to section 86K(1)(c) of the Police Regulation Act 1958, relating to lies told during private and public OPI hearings in July and September 2006. Sentenced to 3 months imprisonment, to be served by Intensive Corrections Order.

Both sentences to be served cumulatively making a total term of 22 weeks (5½ months).

Matthew Franc

On 12/03/2008 - convicted on one rolled-up charge of assault contrary to section 23 of the Summary Offences Act 1966, relating to assaults on 10 May 2006. Sentenced to 5 weeks imprisonment, to be served by Intensive Corrections Order.

On 27/05/2008 - convicted on one rolled-up charge of attempting to mislead the Director contrary to section 86K(1)(c) of the Police Regulation Act 1958, relating to lies told during private and public OPI hearings in July and September 2006. Sentenced to 3 months imprisonment, to be served by Intensive Corrections Order.

Both sentences to be served cumulatively making a total term of 17 weeks.

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The Victorian ArmedOffenders Squad - a case study

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