How accountable are the police?

by Dale Mills
student in the Law Faculty of
University of Technology, Sydney

Police misconduct in the small Australian town of Wagga Wagga shows how the police commit unlawful violent acts and cover up for each other, according to a recently published Report.

A Wagga police officer chased a man for committing traffic violations and assaulted him. The assault resulted in the victim receiving a fractured cheek, jaw, lower arm and finger. He spent several weeks in hospital following surgery and still needs medical treatment some 3 years after the attack.

The Report of Operation Whistler was released just before Christmas and was not reported in the Sydney Morning Herald till December 26, thus receiving the least possible media attention.

Operation Whistler was an investigation by the NSW Police Integrity Commission which focused on the arrest of Allan Frederick Hathaway in Wagga Wagga on 6 February 2003 by Senior Constable Christopher John Jackson and other police officers.

The investigation was initially taken up by the Police Integrity Commission when Hathaway was taken to court following the alleged traffic offences. The presiding Magistrate at his trial said that it was clear that the police officers at court ‘had given untruthful evidence, that Hathaway could not have received the injuries he did in the manner which was described by police in evidence, and that a knife found at the scene was almost certainly planted there by a NSW police officer.’

As a result of the knife being planted by police, the knife possession charge was dismissed by the court, along with charges including breaking and entering, assaulting police and resisting arrest.

The attack

Hathaway’s alleged crimes included driving an unregistered car. He was spotted and chased by police, who followed him into a house where he tried to hide underneath a bed.

While underneath the bed, the pursuing police officer, Senior Constable Jackson, sprayed Hathaway with pepper spray, and then laid into him with a baton across his arms, face and legs and (according to the Report) Hathaway’s head, although this was denied by Senior Constable Jackson.

The Report said:

‘The Commission is of the opinion that Hathaway’s injuries…were caused by Jackson. Specifically, that the injuries were caused by blows from Jackson’s baton and that the use of force by Jackson was excessive. The Commission is also of the opinion that there is no credible evidence that suggests that Hathaway did, or said, anything in the bedroom to justify the injuries that were inflicted upon him.’

The cover-up

Not only was Hathaway attacked in a vicious assault, but police arriving on the scene afterwards attempted to cover up the vicious beating that Hathaway had received. The senior police officer who turned up at the scene was Inspector Murphy.

As the room in which Hathaway was assaulted was splattered with blood, Murphy should have declared a ‘critical incident’ and isolated the bedroom. This would have meant the documentation of blood stains as a way of substantiating the victim’s (or the police officer’s) version of events. Rather than preserving the evidence that could have incriminated one of his own officers in a brutal and unprovoked attack, Inspector Murphy decided to clean up the blood as a matter of urgency. Arrangements for a commercial cleaning company to attend were put in motion within an hour of Inspector Murphy being on the scene. Murphy said that he made this decision, in part, because he was worried about the amount of blood on the floor damaging the carpet.

Was the Inspector incompetent, or was he corruptly trying to protect a violent fellow officer? You can take your pick, but after examining the options, the Report concluded that ‘the evidence gives rise to the compelling inference that Murphy did not immediately declare the matter to be a critical incident because he was more concerned to conceal misconduct on the part of Jackson.’

Planting evidence

To further cover their tracks, an unidentified police officer wanted to portray the arrested (and now badly beaten) victim as something more than a person who was possibly guilty of traffic violations. Perhaps it would be better if he were a dangerous criminal, carrying a knife perhaps? Sure enough, a knife was found. The commercial cleaning company, while cleaning the room, found a knife, which the police then alleged belonged to the beaten Hathaway, who was then being transported to hospital.

The suggestion, however, that Hathaway was a dangerous criminal who carried a knife was rejected by both the Magistrates’ Court and the Police Integrity Commission. If the knife belonged to Hathaway, the Report reasoned, it would have had his bloodstains on it, considering that Hathaway’s blood had been splattered about the room in the beating received at the hands of Jackson. Forensic investigations failed to find any blood.

Perhaps Hathaway had stashed the knife in the room before the beating? However, anyone carrying a knife would leave traces of DNA, certainly if they had been perspiring after having been chased in a police pursuit and then into a house. However, the Police Integrity Commission would have none of this: ‘The Commission is satisfied that Hathaway did not arm himself with a knife…the Commission is of the opinion that one of the officers who attended at the Property on 6 February 2003 planted the knife in the bedroom.’

The botched prosecution

Hathaway’s violent beating was not the end of his troubles.

Hathaway eventually attended court about his allegedly driving an unregistered vehicle (as well as on the planted knife possession and other related charges).

The initial brief of evidence to the defence lawyer representing Hathaway did not include Hathaway’s custody records, medical reports, Critical Incident Investigation File and was, extraordinarily, completely silent on the beating that Hathaway had received.

When the defence lawyer did his job and demanded to see these materials, the police opposed the application. The Court would also have none of this and made the order directing police to produce the materials for Hathaway and Hathaway’s lawyer to see.

One medical report, which was till now a secret, had contents which were consistent with Hathaway’s version of events. Another report prepared by forensic scientists, secret till its production on court order, showed that there was no DNA connection between Hathaway and the knife he was alleged to have been carrying.

In the measured words of the Police Integrity Commission, ‘The NSW police prosecution of Hathaway reveals a number of features that suggest that the prosecution may have been conducted otherwise than in accordance with the prosecutor’s duty to assist the Court in determining the truth.’

But it gets worse...

The decision as to what reports to disclose, custody records, etc were not taken by the police prosecution in Wagga but Subpoena Section in Sydney. The police officer at the Subpoena Section, when challenged over withholding material from the police prosecution brief, said she did so because she didn’t properly understand the rules relating to disclosure. According to the Police Integrity Commission, the decision by that officer to withhold material was ‘difficult to understand.’

The Commission did not comment on whether this difficulty in understanding procedures relating to disclosure had an impact on any other cases with which the officer at the Subpoena Section had dealt with.

The Report by the Police Integrity Commission recommended that criminal charges be brought against Senior Officer Jackson for assault, as well as in relation to false evidence given at Wagga Wagga Local Court and to the Police Integrity Commission itself. Charges were also recommended against Inspector Murphy for perverting the course of justice.

As of the date of writing (7 January 2005) police media releases have failed to mention whether any charges have in fact been brought against Police Officers Jackson or Murphy.

A copy of the Police Integrity Commission’s Report can be found at http://www.pic.nsw.gov.au/PDF_files/Whistler.pdf.

Date: 7 January 2006