Whiskey Au Go Go Inquest - verballing allegations against police by Terry O'Gorman

Evidence given by a former Queensland Homicide Detective at this week’s Whiskey Au Go Go bombing inquest that verballing allegations against police were “what criminal lawyers did in those days” is a tired old almost 50 year refrain by senior former Queensland Police trying to rewrite history.

 

Former Detective Slatter who in 1973 was with the Brisbane Homicide Squad said that police would go to court with a signed confession by a suspect witnessed by a Priest and would still be accused of verballing.

 

In April 1977 an Inquiry into the Enforcement of Criminal Law in Queensland headed by Supreme Court Judge George Lucas listed as its most important recommendation “the mechanical recording of interrogations by police…this will eliminate or greatly reduce the protracted enquiries which take place in so many trials (on this topic)”.[1]

 

A large part of the Inquiry was devoted to the topic “Are changes in the law desirable to inhibit the fabrication of evidence by police officers or other persons”.[2]

 

The Inquiry found “…the allegations relating to the fabrication of evidence by police officers were many.  We have come to the conclusion that fabrication of evidence by police officers – particularly of confessional evidence – does occur.  The sad truth is that “verballing”, as it has become known, is a device that is not uncommonly employed by certain members of the police force…”[3]

 

Despite the mandatory tape recording of police interviews being the major recommendation of the 1977 Inquiry it did not happen for another 12 years.

 

Why? Because the powerful Queensland Police Union of the day opposed it.

 

And so the verbal flourished until part way through the Fitzgerald Inquiry after the Premier Joh Bjelke-Petersen-appointed Police Commission Terry Lewis was stood down on charges of corruption.

 

In 1989 my brother Frank who later retired at the rank of Assistant Commissioner quietly introduced the well overdue reform.

 

It is also to be noted that the Australian Law Reform Commission in a landmark report in 1975 recommended Australia wide mandatory tape recording of police interviews.

 

While the State Coroner has to decide whether Stuart and Finch who were later convicted of the murder of 15 people in the 1973 Whiskey bombing were verballed by police let history record that it was senior police who encouraged the ongoing practice of police verballing from 1977 onwards until 1989 by urging the then Premier Bjelke-Petersen not to introduce tape recording.

 

Bjelke-Petersen then said “if the Police Union don’t want it it’s not going to happen”.

 

The Aboriginal Legal Service where I worked between January 1976 and December 1980 introduced covert tape recording of police officers in police stations on an afterhours basis.  We were successful in convincing hitherto sceptical Judges that police verballing occurred by ALS lawyers producing tape recordings of police blatantly lying about the whereabouts of Aboriginal clients who were being denied access to their lawyers prior to ‘verballed’ confessions being typed up by police.  Many “verballed” confessions were excluded by Judges when confronted with the irrefutable tape recorded evidence produced by lawyers of police lying under oath about suspects confessing.

 

Therefore the ex-Detective Slatter’s comments that, effectively, verballing was the figment of the imagination of criminal lawyers ‘back in those days’ has to be seen for the historical absurdity it is having regard to the Queensland Police Service and the Queensland Police Union vehemently opposing Supreme Court Judge Lucas’ major recommendations during the period 1977 to 1989 that all police interrogations be tape recorded.

 

 

[1] See page iv of the Report of Committee of Inquiry into the Enforcement of Criminal Law in Queensland published 29 April 1977.

[2] Ibid Table of Contents page 1.

[3] See Report of Committee of Inquiry into the Enforcement of Criminal Law in Queensland page 14/paragraph 26.


Children's Detention by Terry O'Gorman

Two Mt Isa Childrens Court cases that have been published on the Queensland Courts website recently raise serious issues about detention conditions in the Cleveland Youth Detention Centre at Townsville.

 

In a Judgment published on 25 January 2022 the Mt Isa Childrens Court Magistrate noted in relation to a juvenile offender whose offending was caused by a lack of attachment to positive adult role models, grief, loss and exposure to domestic violence whose parents drank too much and he had a significant cognitive impairment that the conditions at Cleveland Youth Detention Centre were described by a worker there as follows:

 

  • “Accommodation sections (often) are in night mode, this means that the young people do not leave their cells. Night mode occurs where we have significant staff shortages and cannot bring young people out for daily routine.  When in night mode, young people are provided with basic and safe resources to utilise such as colouring in, find-a-word, puzzles, art and craft activities, trivia, literacy and numeracy activities…the accommodation sections are in continuous cell occupancy, that means that the young people are permitted outside of their cell on a rotational basis.

 

The Childrens Court Magistrate found that in a unit usually the size of 10 plus children only 4 children at a time would be allowed out of the unit.

 

The offender was charged with spitting at an officer at a Youth Detention Centre where the offender was aged 16 years.

 

The spitting occurred during a period of continuous cell occupancy and it has to be seen in the context of a 16 year old person with an intellectual disability in a confined space.

 

The Magistrate went on to observe “I am concerned that (this) Detention Centre is falling below the standards it ordinarily operates at and those standards must already be seen as the bare minimum of what might be acceptable in a civilised society and they are now falling short of that”

 

In another Childrens Court case involving Mt Isa where the decision was delivered on 3 February 2022 the same Magistrate observed in respect of that offender who was described as a moderately cognitively impaired 16 year old First Nations young man that in relation to conditions at the Cleveland Youth Detention Centre the Court had been advised that staff shortages meant that children detained there are spending 70% of their time either locked in their cells for 24 hours a day or locked in their units and only able to socialise with three others for a couple of hours at a time.  Children cannot access recreation or education.

 

Much has been said in the media over the last couple of years about the law and order problems caused in northern cities particularly Townsville by juveniles.

 

The above two cases provide a rare insight into the unacceptable conditions under which children are being kept at the Townsville Cleveland Youth Detention Centre.

 

It is no wonder that children kept in these conditions reoffend so shortly after they are released.

 


Criminal Lawyers Beware! – Cellebrite downloads can be compromised

Criminal Lawyers Beware! – Cellebrite downloads can be compromised

Cellebrite downloads of mobile phones are front and centre of criminal prosecutions in Queensland and throughout Australia.  Even half complex criminal cases are dependent on them.

Recently the Guardian newspaper and the tech publication Gizmodo reported that Signal, the world’s most encrypted app, claimed Cellebrite software is exposed and the data can be manipulated.

Cellebrite’s main feature is an extraction device which allows law enforcement agencies to download data from seized phones.

Among the Cellebrite flaws revealed by Signal is one that allows hackers to not just access Cellebrite software but also to manipulate the data thereby making it possible to change the evidence contained in the Cellebrite download.

These recent warnings about Cellebrite vulnerabilities could have significant ramifications for the widespread law enforcement practice of using Cellebrite downloads as evidence in criminal cases.

If it is possible to break into Cellebrite software and alter the data police are collecting how certain can it be for criminal lawyers that the Cellebrite evidence produced in Court has not been the subject of tampering and falsification of evidence?

What will be the legal ramifications for the high number of cases in Australia that hinge on Cellebrite software if its security is able to be breached?

Robertson O’Gorman has long adopted a rigorous and sceptical attitude to technical and scientific evidence in Prosecution briefs in criminal cases. That sceptical attitude will be maintained in this firm’s work in light of the worrying suggestion that Cellebrite evidence can be compromised.


Review into Accuracy and Reliability of Forensic Evidence Shelved

Review into Accuracy and Reliability of Forensic Evidence Shelved

A national review into the reliability of forensic evidence used in Australian Courts has recently been abandoned by the nation’s Attorneys-General despite mounting concerns that innocent people are being jailed using questionable science.

The investigation, announced in November 2019 by the Council of Attorneys-General, was recently cancelled before a team of top legal, forensic and scientific minds could conduct any significant work or develop a reform plan.

The review into the use of forensic evidence in the Australian criminal system was announced after international studies found five widely accepted forensic “sciences” (bullet, hair, footprint, bite marks and mixed sample DNA analyses) to not work or have no strong evidence proving they work.

Gary Edmond, Director of the University of New South Wales Expert Evidence in Law Program said in a recent newspaper article[1] “we are completely out of step with other comparable countries” in this area.

The exercise to push through a review of the use of forensic evidence in criminal investigations and the Australian Courts have been spearheaded by the then Victorian Attorney-General and by the Victorian Court of Appeal President Chris Maxwell who were outspoken in their concern about the integrity of the legal system’s dealing with forensic evidence and the potential for miscarriages of justice.

Edmond has observed that a recent series of high level independent reports in the US reveal that much evidence produced in Court lacks solid scientific foundation having not been shown to be valid and reliable[2].

Australian Governments thrive on law and order campaigns especially at election time calling for ever greater Police and Prosecution powers.  These same State Government actors show zero interest in remedying miscarriages of justice especially those caused by faulty scientific evidence commonly led in criminal cases.

 

[1] See Sydney Morning Herald 21/05/2021 Forensics Review

[2] See Forensic Science Evidence, Wrongful Convictions and Adversarial Process by David Hamer and Gary Edmond, University of Queensland Law Journal, Vol 38, No 2 (2019)


To record or not to record – is there a question?

Should the ODPP electronically record proofing conferences with prosecution witnesses? The ruling of her Honour Judge Loury QC in R v MK [2020] QDCPR 118 has thrown a spot-light on the issue.  Since the High Court’s landmark judgment in McKinney v R (1991) 171 CLR 486, the utility of electronic recording has been beyond doubt.  In short, electronic recording is a process by which the making of oral witness statement may be unmistakeably and reliably corroborated.

Following MK, it appears that there is every reason for the ODPP to adopt the practice, and very little reason for it not to.  In MK, Judge Loury QC found that evidence of a complainant child had been irremediably corrupted in the course of a Crown proofing conference. Central evidence of the child was excluded. The child’s pre-recording had to be adjourned. The child was re-interviewed. The Crown ultimately discontinued charges.  The child in MK was vulnerable. However, vulnerability to suggestion, pressure (intended or unintended) and/or gratuitous concurrence is a trait not confined to child witnesses.

The Crown Prosecutor in MK made no notes of the proofing conference. He had an imperfect recall of pivotal aspects of the events. The conference was not electronically recorded. The only record was a contemporaneous note prepared by ‘an employee’ of the ODPP.  Examination of the note, which is appended to the judgement, reveals 1½ pages of neat, type-written dot points. Many practitioners in crime might express a view that the proofing note in MK is of a significantly higher quality than many records of Crown proofing conferences disclosed in indictable prosecutions.

At [55], Her Honour Loury QC DCJ said:-

The only record of the conference is the anonymised conference note which is attached to this judgement. It is apparent from the evidence of the Crown Prosecutor before me that he considered Tom was at times, confused. He did not always appear to understand the questions asked and sometimes answered with gestures such as a thumbs-up gesture. Because the process wasn’t recorded it is unknown when and about what he may have been confused.(Emphasis added).

And, at [57]:-

The circumstances surrounding the significant change in the evidence of Tom is impossible to properly assess because the conference was not recorded and because the Crown Prosecutor has no real recollection about Tom’s confusion…Accordingly in my view it would be inexpedient in the interest of justice for the evidence contained in the complainant’s two interviews with police to be admitted. I exercise my discretion to exclude the interviews of Tom dated 11 July 2019 and 30 September 2020”. (Emphasis added).

The issue of whether proofing conferences should be electronically recorded is separate and distinct from questions of disclosure.  Proofing conferences are a juncture in criminal proceedings at which the evidence of key prosecution witnesses can materially change. The existence of an independent, objective record of exactly what was said and done is a desirable safeguard in the event independent scrutiny of a proofing conference is required. And, modern technology makes electronic recording and storage simple and inexpensive.


EXTRA TEN YEARS

The Queensland Government’s announcement on Wednesday, 16 June 2021 that child killers and people who commit multiple murders will be blocked from applying for parole for up to a further 10 more years after their current parole eligibility date is an extraordinary proposal. It represents a significant interference with the due process and procedural fairness principles of Queensland’s criminal justice system.

The catalyst for this change appears to be Barry Watts who has served 34 years for the appalling, utterly disgusting and despicable rape and murder of 12 year old Sian Kingi at Noosa in 1987. While it is totally understandable that the family and community of Sian Kingi would advocate for such a reform, it is a dangerous precedent to allow such high profile cases to direct significant changes to the criminal justice system in this State.

Minister Ryan’s proposal will mean that Watts and many others can be subject to rolling and consecutive periods of 10 years additional imprisonment. It is disturbing that such a radical reform is being proposed without any consultation with legal stakeholders and those working within the criminal justice system.

To give this power to a public official who heads a Board which sits in secret is totally at odds with the criminal justice system which is supposed to imprison people on the basis of an open, transparent and accountable court system. In making these observations no aspersions are cast against the current President of the Parole Board Mr Michael Byrne QC.  He is a well-regarded lawyer. It is the proposed process, not the incumbent of the Parole Board Presidency, that is to be criticised.

The proposed changes will give the President of the Parole Board the power to refuse parole for multiple and apparently endless rolling periods of 10 years after a person’s parole eligibility date falls due. For many cases, this will constitute retrospective criminal punishment which is contrary to the Human Rights Act 2019 (Qld). The government needs to demonstrate why such a breach of fundamental human rights is justified and that there are no other viable workable alternatives.

Terry O’Gorman


Review of Queensland’s laws relating to civil surveillance

The Queensland Law Reform Commission currently has a Reference titled “Review of Queensland’s laws relating to civil surveillance and the protection of privacy in the context of current and emerging technologies”. A Consultation Paper has been produced in that regard.

The Consultation questions are as follows:-

  1. What consideration should apply to surveillance that is conducted in a public place?
  2. Should there be a prohibition on the use of surveillance for the purpose of overhearing, recording or listening to a conversation and determining the geographical location of a person, vehicle or object?
  3. In what circumstances should a person be permitted to use a surveillance device with consent?
  4. Should there be a general provision permitting the communication or publication of information obtained through the lawful use of a surveillance device?
  5. How should the admissibility of evidence in Court proceedings of information obtained by the unlawful use of a surveillance device be dealt with?
  6. Should there be a right to bring civil proceedings in respect of a contravention of the prohibited use of a surveillance device or the prohibited communication or publication of information obtained through the use of a surveillance device?
  7. Should there be an independent regulator in respect of enforcement powers and, if so, what should that entity be?

The Consultation Paper notes that in Queensland the use of surveillance devices for civil surveillance is not comprehensively regulated and that the principal Act in that regard is the Invasion of Privacy Act 1971 which regulates only the use of listening devices.  It is noted that in most other Australian jurisdictions, surveillance devices legislation regulates the use of listening devices, optical surveillance devices, tracking devices and data surveillance devices.

 

The Queensland Drones Strategy

In June 2018 the Queensland Government released the Queensland Drones Strategy which was designed to “leverage the State’s innovation success to take advantage of new and emerging opportunities in the drones industry”. While noting the potential of drone technology to enhance people’s lives and support communities, the Queensland Drones Strategy also had regard to concern about the adequacy of Queensland legislation to protect the privacy of individuals with the emergence of drones.  The privacy aspect of drones are therefore within the current QLRC Reference.

While the questions posed in the Consultation Paper specify the particular topics that are being examined by the QLRC, the actual Terms of Reference directed by the Attorney‑General to the Commission in July 2018 are to recommend whether Queensland should consider legislation to appropriately protect the privacy of individuals in the context of civil surveillance technology.

Unfortunately the Terms of Reference exclude from the review Queensland’s existing law regulating the use of surveillance devices for State law enforcement purposes where the Police Powers and Responsibilities Act regulate the use of surveillance devices by the Police and there is similar regulation by the Crime and Corruption Act.  The QPS and CCC are outside the scope of the Commission Review.

The issue of whether there should be a legislative framework to regulate the surveillance of workers by employers using surveillance devices is the subject of a separate Term of Reference to the Commission.

The Consultation Paper notes that there have been a number of recent Law Reform Reviews and other Inquiries which have considered surveillance regulation in Australia. These include the New South Wales Law Reform Commission Report on surveillance in May 2005, the Victorian Law Reform Commission Report on surveillance in public places in June 2010 and the Australian Law Reform Commission Report in 2014 dealing with serious invasions of privacy in the digital era.

The Commission, while looking at more obvious forms of surveillance such as audio and visual surveillance, is also looking at data surveillance, tracking or location surveillance and biometric surveillance.

Data surveillance refers to the systematic use of personal data systems and the investigation or monitoring of the actions or communications of one or more persons and it may include surveillance of a person’s electronic records including those relating to credit cards or loyalty cards, email communications or computer usage and internet activities using tools such as cookies, keystroke monitoring or spyware.

Tracking or location surveillance relates to the observation or recording of a target’s location. Location data may capture the location of a person or object at a point in time or monitor a person’s movements in real time.  It may also involve predictive tracking or retrospective tracking based on the data trail of a person’s movements.  Examples of location and tracking devices include global positioning system (GPS) and satellite technology tracking, radio frequency identification (RFID) and automatic number plate recognition (ANPR).

Biometric surveillance refers to the collection or recording of biological samples and physical or behavioural characteristics, usually for the purposes of identifying an individual. This may include fingerprints, cheek swabs, iris scans and blood or urine samples as well as face or voice recognition or gait technology.

The Commission is also considering another emerging technology known as ‘smart CCTV’ which combines CCTV cameras with facial recognition software and artificial intelligence (including predictive systems to identify different behaviours). Facial recognition software can automatically analyse video, pick a face from a crowd and identify the individual by comparison with a database of known faces.  The person can then be tracked from camera to camera across wide geographical areas without any human intervention.  Automated cameras can also be programmed to identify ‘suspicious behaviour’ or ‘threats’, for example an individual entering a restricted access zone or unattended luggage at an airport.


QUEENSLAND PRISONS

In December 2018, the Crime and Corruption Commission released its report named Taskforce Flaxton looking at corruption risks within Queensland prisons.

The summary and recommendations of that report are instructive.

They note that in 2017 Queensland Corrective Services was established as a standalone agency where previously it had been part of the Queensland Department of Justice and Attorney-General.

There are 14 prisons in Queensland with 2 being managed under private contracts namely Arthur Gorrie Correctional Centre and Southern Queensland Correctional Centre at Gatton.

The CCC found that prison overcrowding is negatively affecting the way prisons operate and the CCC said that alleviating prison overcrowding is essential to reducing corruption risk in Queensland prisons.

The CCC report also noted the necessity for an enhanced independent inspection function. In that regard, the Sofronoff review into Queensland prisons recommended in 2016 that there be an Independent Inspectorate of prisons in Queensland and it is expected that Inspectorate should be modelled on the United Kingdom system which has operated for quite a long time.

Queensland could also learn in a practical sense from the operation of the Western Australian model of an Independent Inspectorate, the essence of which is without notice, ‘spot’ visits be made by the Independent Inspectorates to prisons not only to address the corruption risks but also to ensure that facilities meet minimum standards. It is something of a worry that despite the fact that the Sofronoff review recommended that the establishment of an independent inspectorate, the CCC in its Operation Flaxton report published in December 2018 made the following critical comments:-

“The Government supported these recommendations (especially the establishment of an Independent Inspectorate to report to Parliament and not to the Department arising from the Sofronoff report). In its submission, QCS indicated that it is working with relevant agencies to commence the initial work on the recommended Inspectorate and associated legislative requirements however little observable progress has been made.”[1]

It is worrying that as of December 2018, 2 years after the recommendation for an Independent Inspectorate, QCS is only at the stage of commencing initial work on the recommendation.

It is noteworthy that the CCC has been critical of QCS observing that as late as December 2018 little observable process has been made in respect of this proposal.

The current Inspectorate model in Queensland prisons is inadequate and reports only to the Department and none of its reports are made public.

In the UK where the Independent Inspectorate model has worked for decades, there are regular reports published critical of health and accommodation standards falling well below minimum agreed international requirements for jails.

It is time that the Queensland Corrective Services gets its act together and starts implementing this important recommendation.

[1] See Operation Flaxton report page 50.


Media Release – Terry O’Gorman, President of ACCL

Home Affairs Minister Peter Dutton is again engaging in overblown rhetoric in calling for an Australia wide Public Register to track child sex offenders.

Australian Council for Civil Liberties President Terry O’Gorman said that in claiming the National Register will allow the public to go online to check up on people in contact with their children or in the community, Mr Dutton appears to be unaware of the current array of schemes that exist that result in close supervision of people convicted of child sex offences.

“Around the country there are ever widening Blue Card Schemes which prevent people who have not even been convicted of child sex offences but have been convicted of other criminal offences from working with children, even indirectly”, Mr O’Gorman said.

Mr O’Gorman said that similarly, people convicted of child sex offences committed 30 or 40 years ago are forced onto State Reporting Registers thereby being prevented from having any contact with children.

“These Registers require people who come in contact with children, even accidentally, to report their contact to a supervising Police Officer who has the power to haul the person in for questioning”, Mr O’Gorman said.

Mr O’Gorman said that as well, Dangerous Prisoner legislation in all the States and Territories regularly results in an ever widening pool of prisoners being subject to Attorney‑General Applications in the Supreme Court to either keep a prisoner in jail beyond their full time release date or be released subject to an often very long list of restrictive conditions, often numbering in the twenties or thirties.

Mr O’Gorman further said that Mr Dutton is engaging in the same sort of sleight‑of‑hand tactic as revealed in the recent Prakash citizenship stripping debacle when he claims the National Register will allow the public to go online to check up on people in contact with their children or to check where such people are in the community.

“Blue Card and reporting schemes adequately deal with offenders being in contact with children”, Mr O’Gorman said.

“But allowing an online Register to be searched to ascertain who ‘in the community’ has a child sex offence no matter whether it is 40 years old or committed within a family setting will promote vigilantism and prevent rehabilitation and reintegration of a child sex offender into the community”, Mr O’Gorman said.

“As demonstrated by his overreach and incompetence in the Prakash scenario, Mr Dutton in pushing for a National Register of sex offenders is promoting a remedy for a non‑existent problem”, Mr O’Gorman said.

 

Mr O’Gorman can be contacted during business hours on 07 3034 0000

or after hours on 0418 787182


Media Release – Terry O’Gorman, Vice-President of QCCL

A threat by Queensland Police Union President Ian Leavers that pill testers “will be charged too” if a sanctioned pill testing site is established in Queensland was today slammed by the Civil Liberties Council.

Civil Liberties Council Vice-President Terry O’Gorman said that pill testing rightly is on the public agenda about drug harm minimisation after a serious spike in the number of young people who have died at music festivals on Australia’s east coast in the last number of months.

“However, it is the Police Minister in conjunction with the Police Commissioner who sets policy in this contentious area, not the head of the Queensland Police Union”, Mr O’Gorman said.

Mr O’Gorman said that Mr Leavers appears to be engaging in something of a veiled threat that his members will charge pill testers if a sanctioned pill testing site currently under consideration by the Palaszczuk Government “okays” music festival pill testing and then someone dies.

Mr Leavers needs to recognise that pill testers who have operated at interstate music festivals such as Groovin the Moo Music Festival in Canberra last year do not ‘give the okay’ to any pill presented for testing.

“The legal document signed by those seeking pill testing and the advertised policy of the pill testers is to advise what the make-up of the pill is and to urge festivalgoers not to actually ingest a pill that has been tested”, Mr O’Gorman said.

Mr O’Gorman said that there have been instances where festivalgoers have ‘binned’ pills after testing and this shows that testing has some practical ‘on the ground’ value.

“While Mr Leavers is entitled to express his opinion on pill testing, it is the Minister and the Police Commissioner who can make a policy decision to allow music festival pill testing as Police Ministers and Commissioners interstate have done”, Mr O’Gorman said.

Mr Leavers’ apparent threat that his members will charge pill testers, especially if someone dies after pill testing, should be immediately dealt with and slapped down by both the Police Minister and the Police Commissioner.

 

Mr O’Gorman can be contacted during business hours on 07 3034 0000

or after hours on 0418 787182