Wednesday, March 21, 2012

Balance and alignment needed for scales of "seriousness"

Late last year, a Western Australian policewoman pleaded guilty to falsifying records that showed she had been doing 12kph over the limit behind the wheel of a squad car. She was sentenced, and before the court appearance was required to resign after the Commissioner of Police issued her with a loss of confidence notice. While Vary Ranier had been honest with her bosses and with the court about her offence, she was dealt with harshly, according to the District Court Judge. The Police Union's lawyer said that the offence was so trifling that it almost slid off "the scale of seriousness," and it does appear to pale in comparison to the actions of officers involved in incidents like the WatchHouse tasering and mistreatment of Spratt; the wrongful arrest, investigation and prosecution of Andrew Mallard, and in numerous police custodial deaths in the state. Nobody in the Mallard case has been disciplined besides John Quigley who helped to uncover the truth, in contrast to the myriad of others who helped to conceal it.

The police vehicle that hit Rex Bellotti Junior, to date, has caused him to die 15 times, but there was no forensic examination of the 4WD, and no examination for priors. The only officer to face discipline over the matter was the officer in charge of the potential crime scene that could not be treated as such in the absence of any evidence, and witness statements were not taken for a month.
Resuscitated 15 times, the harm that the promising Noongar footballer- Rex Bellotti Junior  suffered, was not required to be investigated as a potential homicide, under the current deaths in police presence policy.

In 2002 the UNCAT criticized the lack of independent mechanisms for investigations of harm by authorities in response to DICWC(WA's) Torture Report. The CAT made recommendations that an independent monitor be prioritized. Peter Foss, the then Attorney General, was dismissive of the recommendations.

In the 2007 death of Noongar man Mr Jones, a busy coroner investigated four police pursuit related deaths in the same inquest. The hearings were startling and revealed flagrant, repeated breaches of the Urgent Duty Driving policy, with AVL data differing from speeds officers reported to VKI 51 times, which drew pointed criticisms from the coroner during the inquest and in his findings. The evidence of one officer put Jones behind the wheel of an old, stolen vehicle that several police cars had been pursuing, but only after the chase had been stopped. Smoking a cigarette by the side of the road, the two officers told the court that they had seen the vehicle approach and pass them. And, oncoming, with the stolen car's lights on, travelling at 100kph, they identified Mr Jones at the wheel. They explained to the Coroner that the discrepancies between their reported speeds and the vehicle computer data were caused because they did not notice their own speed or their own speedometer. The stolen car spun out of control in the distance and Mr Jones was found in the middle of Ranford Rd in the dead of night with terrible injuries. Forensics officers found no DNA or fingerprints belonging to Mr Jones in the stolen car, although a fingerprint belonging to someone else was. Mr Jones' passing was not subject to the death in police presence investigation policy, and as such, not subject to a major investigation by the homicide unit.

In the  CoP's 2011 examination of conduct involved in the aberrant shooting by SC Westergerling at Aboriginal women and children during a traffic stop, he explained that past criminal records did not necessarily exclude an officer from undertaking his police duties. Westergerling's criminal history involved a criminal assault against a woman only six months earlier. In both court cases his lawyers defended the experienced officer by suggesting he suffered "a brain snap," and to his credit he at least admitted his wrongdoing in both instances.

Officers in court proceedings in the past have not been so forthcoming as Westergerling or Vary Rainier, and regarding the inquest of Stephen Wardell in Litany of Lies , author Avon Lovell noted that 17 WA Police officers refused to testify in the Coroner's Court, with no recriminations, on the grounds that their evidence could be incriminating.

With no information available in court about officers' disciplinary history or priors, as is the case in other prosecutions, is the risk that they pose in undertaking their duties being reasonably ventilated so that the public can be appropriately informed about the management of this troubled public sector agency? 

Premier Colin Barnett, coming up for election, last week said that he was looking at extending Commissioner O'Callaghan's contract for a further five years even though the CoP, himself, is presently under investigation - accused of misusing a corporate credit card and mishandling a response to local fires.

Former Kimberley Sergeant Michael Kelly had served in the WA Police for a similar length of time to Westergerling when he resigned. He cited a lack of confidence in the police as causal and there are many who would empathize with that sentiment, but his resignation also put a stop to the investigation of three internal disciplinary charges. IA alleged he hit the driver in the head with his police issue torch, and that he had turned a blind eye to two breaches by his officers of the Urgent Duty Driving Policy, which sets a limit of 140kms. Incidentally, breaches of the driving policy prompt stints of safe driving re-training. Mr Kelly said he was in imminent danger when he fired two shots at a stolen car in Derby in 2009, and in the Magistrates Court last year he was found not guilty of unlawfully discharging his weapon, the State Solicitor lost an appeal against the verdict earlier this month. In the SunX interview Mr Kelly shows signs of the usual stress experienced during any court process but now he has gone through it as a defendant, he is probably more capable of undertaking police duties and has more insight about procedural fairness than most serving officers.

Interestingly, there was no news published about discipline against any officers in this appellant court case, which heard (well after this inmate was paroled from his 15 month sentence), that the drugs he was jailed for just didn't exist. Mr Smith was jailed in 2008 on the basis that he was in possession of a substantial amount of amphetamines, 3 bags measuring "3.67, 2.56 and 3.18 grams," and a further conviction in November 2010 would reflect those charges in his sentencing. With Smith facing an official branding as a "drug trafficker" under the Misuse of Drugs Act s32(a) the State Prosecutor requested certification of the analysis of the substances involved in the 2008 convictions, only to discover the powder samples mysteriously, contained no illicit drugs.

"10...the certificates of analysis were obtained prior to the sentencing proceedings on 27 August 2008 but that they were not forwarded to the police prosecutor who appeared on that day and, accordingly, were unknown to him. That may account for why, in the facts that were read to the magistrate, there was only a reference to the preliminary tests.
11 It is not necessary for me to make any findings in regard to how this occurred. It is sufficient to note for the purposes of this appeal that the appellant pleaded guilty on the basis that the substances seized from him were amphetamines when it is now clear that that was not the case. In those circumstances it is apparent that he pleaded guilty on a basis that was incorrect and that a miscarriage of justice has occurred." Hall J, 2011