Harrison v Commissioner of Police

Harrison v Commissioner of Police - [2006] NSWIRComm 319 - NSWIRComm 2006 case summary — Zoe

[11]

4 When the Order was issued the applicant was a superintendent employed by the NSW Police. It was acknowledged by the Commissioner in the Statement of Reasons attached to the Order that the applicant was highly regarded by both members of the NSW Police and the wider community. The applicant, at the time of his removal, had been a serving member of the NSW Police for 33 years. At the time when the events, the subject of his removal, took place he was performing relieving duties as the Principal of the NSW Police Academy at Goulburn (the Academy). 5 While working at the Academy on 23 April 1997, the applicant drafted a letter to Mr Edlund advising him that his police computer access had been withdrawn indefinitely. The basis upon which this advice was given was that the NSW Police were investigating Mr Edlund following a complaint that he had used his position as a police officer to assist his wife who apparently conducted a repossession and collection business. The complaint alleged that Mr Edlund was accessing police computer records without appropriate authorisation. At that time, Mr Edlund was a lecturer at the Academy. 6 At about 8.30am on 21 May 1997, Mr Edlund approached the applicant in the grounds of the Academy and sought a meeting with him. The applicant agreed. Mr Edlund apparently wished to raise concerns about the progress of the investigation launched against him. One concern was a perceived lack of confidentiality in relation to the investigation which had resulted in certain details and allegations of illegal computer access made against him having become widely known. 7 The meeting took place about 9.00am on 21 May 1997. Mr Edlund, who had in his possession a tape and a recording device, covertly taped the conversation between himself and the applicant. Following the meeting, the applicant prepared detailed handwritten notes of the conversation, in which he alleged that he had been threatened by Mr Edlund during the meeting. A co-worker, Inspector Connor, who was working in an adjacent office at the time of the meeting, recalled going into the applicant's room as the meeting was concluding. In an interview conducted on 28 May 2001, the Inspector made a number of observations concerning the applicant's demeanour. He said:

[16]

I pause here to observe that according to the evidence in these proceedings the transcript had been prepared by Mr Edlund within about one to two days of 21 May 1997 on his home computer. 13 The applicant informed Inspector Barton that "at the end of the document" certain words (constituting a threat) were said to him by Mr Edlund at the conclusion of the meeting, "at the doorway". According to the applicant at that point in time Mr Edlund said "just watch yourself". When the applicant enquired "what do you mean by that?", Mr Edlund added "you know what I mean". 14 Shortly after, on 2 December 1997, Mr Edlund was interviewed about the circumstances of the meeting of 21 May 1997. At the commencement of the interview Mr Edlund was advised by the police interviewers (Inspector Barton and Acting Inspector Nunn) that the alleged taping of the 21 May 1997 conversation was in contravention of the Listening Devices Act 1984 (LD Act). During the interview Mr Edlund was shown the same transcript shown to the applicant in his interview of 6 November 1997. The transcript was headed "Transcript of Taped Conversation Between Superintendent Harrison on Det Sgt Edlund Held in the Principal's Office at the NSW Police Academy about 8.30am on 21 May 1997". Mr Edlund refused to say who had produced the document or how the document came to be produced. 15 In December 1999 Mr Edlund made a written complaint to the Commissioner asserting that he was concerned that allegations that he had made against the applicant (that the applicant had falsely accused him of issuing a threat) had not been investigated by the police. Shortly after an investigation was commenced. 16 On 8 November 2000 Inspector Phil Douglass of the NSW Police caused a microcassette tape, identified as Realistic MC-90 No 52902A7, (said by Mr Edlund to be the original tape upon which the recording was made by him of the 21 May 1997 meeting) to be sent to the Independent Commission Against Corruption (ICAC) for analysis. An employee of the ICAC attached to the Technical Services division, Mr Paul Empson, digitised the signal from the tape and listened to it. He concluded that the tape had not been edited or tampered with. 17 On some undisclosed date a second transcript of the recording of 21 May 1997 was prepared by persons attached to the Police Integrity Commission (PIC). 18 On 2 January 2001 the microcassette tape, earlier sent to the ICAC for analysis, was sent to Mr Peter Garde employed by Unisearch Limited for analysis. This microcassette tape, as earlier observed, was said by Mr Edlund to contain the original recording of the 21 May 1997 meeting. The item was forwarded by Inspector Douglass under cover of letter. Mr Garde was also sent two transcripts, one prepared by Mr Edlund and the second prepared by the PIC. Both purported to transcribe the conversation said to have taken place during the meeting of 21 May 1997. The covering letter sent by Inspector Douglass set out the following information: Subject Proposed audio tape analysis Our Reference 00000969 Exhibit One (1) micro-cassette tape (similar to a standard MC 60 style audio cassette in regular everyday commercial use). Background The subject tape was used to record a conversation which now forms the basis of a current investigation. Although there are no grounds to believe that the integrity of the tape is in question or indeed the contents are in any way edited, it is necessary to establish independently and by way of expert opinion that the tape is authentic. 1. To establish that the conversation appearing on the subject tape is a continuous and unedited recording of that conversation. Desired Objectives 2. To establish that there is no evidence of tampering or editing of the tape contents or any attempts to tamper or edit the tape or this recording thereon. 3. Generally, to provide opinion about the tape and the conversation recorded thereon.

[69]

36 The issue as to whether the applicant's removal was harsh, unreasonable or unjust requires a consideration of whether the five allegations of false conduct set out in the s 181D(3)(a) notice can be established on the material before the Commissioner as well as on the evidence before this Commission. The standard of proof is the civil standard but, consistently with the Briginshaw test, "... weight is given to the presumption of innocence and exactness of proof is expected": at 363. The Commissioner in written submissions before this Commission conceded the appropriateness of applying the Briginshaw test to the issue of misconduct alleged against the applicant. The Commissioner submitted that a decision by the Commission to "...overturn" the s 181D Order turns on whether the Commission is satisfied that the alleged misconduct on the part of the applicant is made out. The Commissioner contends in this regard that the "exactness of proof" referred to by Dixon J in Briginshaw is, "abundantly made out" on the materials that were before him. 37 The applicant relies on a number of issues in support of his application that his removal was harsh, unreasonable or unjust. In my opinion these issues may be narrowed to the circumstances of the covert tape recording by Mr Edlund of the 21 May 1997 meeting. That recording was the principal piece of evidence before the Commissioner upon which he formed his view that the applicant should be removed under s 181D. The material before the Commissioner concerning the events of 21 May 1997 consisted of a 22 page document (referred to in these proceedings as the "Commissioner's Confidence Submission (CCS)) with numerous attachments. I have used this material together with other material tendered into evidence during these proceedings to detail the relevant factual background set out earlier in this decision. What emerges from this material is that the Commissioner's attention was directed to the microcassette tape recording with the focus on whether Mr Harrison's allegations against Mr Edlund were borne out by the recording. 38 The Commissioner's decision to remove the applicant was based primarily upon the material in the CCS and the conclusions expressed therein about the contents of the microcassette tape recording. The applicant, after the meeting of 21 May 1997 alleged that Mr Edlund had threatened him. The applicant was unaware at that time that Mr Edlund had covertly taped the conversation that allegedly occurred at the meeting. This revelation, as well as the tape itself, was not made public by Mr Edlund until some considerable time after the 21 May meeting when he presented an alleged copy of the tape recording as well as a transcript prepared by him to Assistant Commissioner Nixon sometime in July 1997. 39 At a much later stage, in November 2000, a microcassette tape purporting to contain the original recording of the 21 May 1997 meeting was handed over to the ICAC for the purpose of analysing the tape for any evidence of editing or tampering. The analysis was done by Mr Paul Empson, who during his evidence in these proceedings effectively conceded that he was not qualified to give any considered opinion as to the authenticity of the tape. I will discuss this issue in detail later in this decision. The same microcassette tape was forwarded to Mr Garde, an electrical engineer, with expertise in tape authentication, for analysis. Mr Garde's somewhat equivocal conclusion was that although there was evidence of editing in the recording there were only a few edit points where the removal of information was likely to be limited so that the remaining information was "...unlikely to have been changed by the editing process" and, that what remained was, "...likely to be reliable, unaffected by the editing". Mr Garde's evidence and his conclusions will also be discussed in detail later in this decision. 40 At least two senior police officers involved in the investigation into the alleged false conduct of the applicant considered that Mr Garde's findings were inconclusive in relation to whether the microcassette tape recording was an authentic account of the conversation. In the CCS however, Mr Garde's findings, in particular, were presented with a greater of degree of certainty. The CCS records:

[78]

As the evidence stood in this case what was written on the label could not establish what was in the bottle even if the bottle had been produced. Counsel for the appellant argued that McDonald could have been permitted to say what was written on the bottle the contents of which he examined if only Doctor Sheldon had been permitted to say what had been written on the bottle into which he had put blood of the deceased. That, I have no doubt, is so. If the writings corresponded the jury might, in the circumstances, infer that the blood that McDonald examined was the sample that had been labelled and sealed at the autopsy. I do not agree that to enable the jury to infer identity any greater description of the bottle was required or any exact tracing of its movements and whereabouts from the time it left the morgue till the time McDonald got it. The question was simply: was it the same sample of blood? That would have been for the jury to say, if there were any evidence before them. It was not something that had to be proved beyond reasonable doubt, nor was it necessary that every possibility that it was not the same blood should have been eliminated. The respondent's attitude on this aspect seemed to me quite mistaken. 47 The continuity of the microcassette tape recording is in issue before the Commission in these proceedings. The recording was said by Mr Edlund to be the original record of the conversation between the applicant and himself on 21 May 1997. This is challenged by the applicant. This aspect was of course central to the Commissioner's consideration under s 181D. 48 The microcassette tape recording, on the evidence, remained in Mr Edlund's possession from 21 May 1997 until about 1 November 2000 when it was apparently handed over to the ICAC for analysis. On some undisclosed date the PIC personnel copied the recording, and produced a transcript. This transcript differs significantly at the beginning of the transcribed record from the transcript which Mr Edlund said he prepared of the original recording; as well as from the transcript prepared by Mr Garde. In the PIC transcript the voice of Mr Edlund is recorded as counting from 4 to 10. In addition, the beginning of the conversation is apparently duplicated on a copy of the recording. The counting sequence and the duplication is absent from the other two transcripts as well as from the microcassette tape recording provided to Mr Garde on 2 January 2001. These absences suggest some form of interference with the tape at least inadvertently, by Mr Edlund. The reason advanced in the PIC transcript for the duplication of the first part of the conversation appears on the first page of that transcript as:

[115]

57 All of the matters which I have considered above are also relevant in my opinion to the issue of the reliability of the microcassette tape recording as an accurate record of the 21 May 1997 conversation. I adopt my analysis and findings concerning the issue of continuity in my analysis here in relation to the reliability of the recording. 58 In addition to those matters that I have already considered above, there are a number of other indications which in my opinion affect the reliability of the recording. There were, for example, discrepancies between the accounts given by the applicant and Mr Edlund of the conversation. There were also found to be discontinuities in the record of the conversation, for example, Mr Garde noted two discontinuity points (anomalies) at the end of the recording at the precise point where the threat was alleged to have been made. 59 The applicant in submissions points to numerous inconsistencies in the accounts given by both parties to the conversation. I intend to mention a few by way of illustration. First, the applicant said in a record of interview that during the conversation Mr Edlund's hands on occasion went in and out of the pockets of a leather jacket he was wearing. The applicant surmised from this activity that at the critical time when the threat was issued Mr Edlund may have put his hand over the microphone. Mr Edlund, on the other hand, maintains that he secreted the listening device inside an A-4 size black leather folder which he had either on his lap or had placed on the floor. Secondly, at the end of the conversation Mr Edlund said "Allright, thanks for talking to me". According to Mr Edlund he then opened the door in order to leave the room. He then saw Inspector Connor who greeted him. On the tape recording, however, no sound consistent with opening a door can be heard. This suggests, according to the applicant, that the recording had been edited at that point. Thirdly, there are two anomalies (discontinuities) appearing at the end of the conversation at the point where the applicant alleged he was threatened by Mr Edlund. Both these anomalies are described in the PIC report as "unintelligible", and in Mr Garde's transcript as "indistinct". Mr Garde conceded in cross-examination that he did not provide an explanation for the presence of the anomalies. Indeed, in his report he did not advert to them at all. Mr Garde's evidence was, however, that a discontinuity (identified in his transcript as "indistinct") in the recording may be indicative of a possible edit point. The gap in time between the words "Allright, thanks for talking to me" followed by the first discontinuity, and then the voice of Inspector Connor saying "John" is three seconds. The applicant submits that this was insufficient time for Mr Edlund to have walked from where he was standing in the office, open the door into the foyer area (at which point according to the applicant Mr Edlund lent backwards) and utter the implied threat. 60 Whether or not in this last mentioned illustration 3 seconds was sufficient time, it was in my view worthy of further investigation. It was an anomaly in the recording at the precise point when Mr Edlund was alleged to have uttered the critical words. It is unfortunate that Mr Garde's attention was not directed first to the fact that a threat was alleged to have been made during the conversation, and, secondly to that part of the recording where it was alleged to have been made. The presence of discontinuities in both the PIC and Garde transcripts may well have, if Mr Garde had been informed, been subjected to closer analysis. All of these matters to which I have referred in my consideration of the issues of continuity and reliability of the microcassette tape recording, including Mr Edlund's tampering (I use the word here in a neutral sense) of the recording on probably two occasions, should have alerted those persons investigating the allegations to the importance of adopting a cautious approach to the contents of the recording and of taking careful and precise steps to confirm its accuracy or otherwise. 61 The accuracy or authenticity of the recording could only be ascertained by experts in tape authentication, provided such persons were in receipt of the necessary instructions. In my opinion this did not happen. Mr Empson was not qualified to give an opinion on the authenticity of the recording and Mr Garde's analysis was unsatisfactory, in my view largely because his instructions were not sufficiently comprehensive. As a result the material before the Commissioner which formed the basis for the decision to remove the applicant was inadequate, in relation to the critical piece of evidence against the applicant. 62 I turn now to consider the evidence of Mr Empson and Mr Garde. The expert evidence

[129]

An MC-90 microcassette tape containing a recording of a conversation between two males was examined. The recording was of only average quality, presumably because it was made under surreptitious circumstances. It is normal for such a recording to contain noises and other artefacts not present in professional recordings. It was found that at least a large portion of the recording was authentic even though some possible edit points were identified. The most significant possible edit points were called recording discontinuities. If the recording has in fact been edited it is likely that the editing consists of the removal of part of the original recording at those points. The amount removed is likely to be limited otherwise the conversation would become disjointed. In this situation, and with the possible editing limited to so few edit points, the information contained in the remaining material is unlikely to have been changed by the editing process. That is, while some information may have been edited out, what remains is likely to be reliable, unaffected by the editing. 73 In his evidence before the Commission Mr Garde explained the methodology he utilised in testing the microcassette tape. He said he first undertook a visual examination and then underwent a procedure called "critical listening". He also maintained that he performed wave form analysis although there is no mention of any such analysis in his report. Mr Garde also agreed in cross-examination that Inspector Douglass did not draw his attention to any particular part of the recording. As I have earlier observed, the failure to do this meant that Mr Garde would not have specifically focused on that part of the recording where the threat was said to have been made. This is unfortunate as it might have resulted in a more thorough analysis of that section of the tape, or even of the tape as a whole. 74 Mr Garde also said that he was not provided with the recording device on which the alleged original recording was made. He was shown an article by an acknowledged expert in the field of tape authentication, Mr Steve Cain. In that article Mr Cain states that it is, "essential in all tape authentication exams to obtain the original recorder and tape, as copies cannot normally be authenticated". Mr Garde agreed with the statement. 75 Mr Garde's attention was also directed in cross-examination to his identification of the two anomalies in his transcript at the end of the recording. Mr Garde's response, that he had never provided an explanation for the anomalies, is recorded in the following exchange during cross-examination:

[146]

I think this is something that changes over time. I think probably in my more recent reports I'm getting towards Dr Tibbitts' direction, shall we say; but this is - one reason for this is now, of course, you simply press a button and the form pops out and it takes you two and a half seconds, whereas five years ago you were just moving out, I suppose, of dot matrix printer technology or low resolution laser technology. 78 This response seems to be a concession from Mr Garde that his recent reports are more in conformity with Dr Tibbetts' views of what constitutes a scientifically valid technical report. The fact that techniques of tape authentication have improved over the last 5 or so years does not necessarily provide support however for an assertion that the analysis performed by Mr Garde in 2001 was nevertheless adequate. It should be emphasised here that Dr Tibbetts did not analyse the microcassette tape recording. The evidence suggests this was because of prohibitive cost and time constraints. Dr Tibbetts is however highly qualified in the field of audio tape authentication as her curriculum vitae discloses, and, in my opinion her observations on the methodology used by both Mr Empson and Mr Garde must be given weight. In any event as I have earlier commented both Mr Empson's and Mr Garde's analysis of the recording was compromised by at least one instance and probably two of inadvertent tampering with the recording, by Mr Edlund. 79 Taking all these matters into account I am not satisfied that the analyses of the microcassette tape recording revealed that the recording had not been edited or otherwise tampered with at the point where a threat was alleged to have been made. More precisely, given Mr Empson's lack of expertise and given the inadequacies in the methodologies adopted by both Mr Empson and Mr Garde during their respective analyses, as well as Mr Garde's equivocal conclusions, the only reasonable inference available is that their results were unreliable and inconclusive. At some stage during the course of the investigations into the allegations against the applicant it seems, for reasons not explicable to me, that an initial view that the expert analysis was inconclusive, changed and the final conclusion presented to the Commissioner in the CCS extracted below was quite different:

[149]

A police report on 16/07/01 stated that further consultant (sic) with Mr Garde indicated that he had altered his conclusion to say that the tape had not been tampered with. If Mr Garde did say this then where is the scientific testing that produced this different conclusion. Until the existence of discontinuities is explained scientifically and the tape and equipment thoroughly and scientifically tested; no definite conclusion can be derived about the validity or integrity of the tape in question. 82 I endorse the comments of Dr Tibbetts. The Inspector's claim should therefore be accorded little or no weight. 83 For the reasons discussed in this decision I find that the microcassette tape recording, which was the central piece of evidence upon which the Commissioner acted to order the applicant's removal under s 181D, was neither reliable nor properly the subject of expert analysis. Early interference with the recording by Mr Edlund, inconsistent accounts of the conversation given by the participants, the existence of discontinuities at the precise point at which the alleged threat was said to have been made, and, the failure to verify the authenticity of the recording by the experts as well as deficiencies in the analysis of the recording, could not have provided the Commissioner with the "exactness of proof" required under the Briginshaw test to justify the conclusion that the applicant had engaged in the five nominated instances of alleged misconduct. Other material before the Commissioner depended upon the reliability of the recording and an adequate expert analysis of the recording to establish to the requisite standard that the applicant had engaged in misconduct. Lawful interest 84 Given my findings it becomes unnecessary to consider the other issues relied upon by the applicant to show that his removal was harsh, unreasonable or unjust. I do not have to consider, for example, whether Mr Edlund had a lawful interest to record the conversation as required under s 5(3)(b)(i) of the Listening Devices Act, when he covertly recorded the 21 May 1997 conversation. I would add for completeness, however, that I seriously doubt that Mr Edlund could avail himself of the exemption under that section. 85 In a record of interview dated 23 April 1997 between Mr Edlund and Superintendent Hobden of the NSW Police annexed to the CCS, Mr Edlund is informed that an internal investigation is underway into an allegation that an Inspector Matt Casey has been victimised by senior members of the NSW Police as a consequence of his providing information to an inquiry into aspects of management at the Academy. At Q10 Mr Edlund is asked the following question:

[152]

Yes, In January and February, 1995 I performed rotational duties at Kogarah Detectives Office and on my return to the Academy in about March that year, Casey was still in charge of the Detectives training and a short time after that he was removed from those duties and the then Inspector Harrison became the Commander of that area. I had met Harrison on a number of occasions in favourable circumstances. I certainly did not expect the type of attitude that he displayed towards me when he arrived here at that time. At the time I was on restricted duties, due to a diagnosis of epilepsy which had affected me somewhat. Harrison's attitude was totally devoid of any consideration and or compassion. He removed me from teaching duties which I had been cleared to perform by the Police Medical Officer, he accused me of hiding plans which I had formulated for a complicated scenario which had been used in the MMI Course. As I said, he forbade me to give lectures and put me in charge of preparing rosters for a team of about twelve people. I found it most inappropriate for a Detective Sergeant to be performing these duties when the teaching staff was short and the course was in disarray. Although seeking an explanation I was never given one. It is now apparent to me that at this stage this man had undertaken an investigation into me and I believe had formed beliefs which caused him to act in this manner. Sometime after that I was at a Hotel with members of the staff and I can remember Detective Sergeant Lawson being there and Detective Sergeant Pegram and others being there. I said "I've been told by someone down at the station (being Goulburn Police Station), that the Royal Commission is looking into travelling allowances at the Police Academy." All the people there broke out into laughter and then told me that I was one of the subjects of that enquiry. It also become apparent that the story was all over the Academy and I was one of the last to know. Some weeks later, I was told by Harrison that on the following Monday I was to be interviewed by IPSU. I said to him "Is this over the travelling allowance?" He said "I don't know what it is about." I said "Well that's funny, because it is all over the Academy and I think you are the person who has told them." This conversation was over the phone and he denied it. I think that was in about June or July that year. 86 At the end of the interview Superintendent Hobden issues Mr Edlund with a formal directive:

[156]

[28] I understand, both from such events as the enactment of the Listening Devices Act and also from my general understanding of values and behaviour in the community of which I must take notice, that such conduct is not tolerated and is regarded as an extreme impropriety. The nature of the breach of an Australian law and the nature of the impropriety have a part in the weighing exercise and in appraisal of the undesirability of admitting evidence to which subsection 138 (1) refers. I am of the view that the tape is evidence which was obtained improperly and that the transcript is evidence which was obtained in consequence of an impropriety. 90 These comments underscore a community expectation that participants in a conversation held during the course of legitimate business or other professional undertaking are entitled to proceed upon the basis that the conversation is taking place openly and without any apprehension, perceived or otherwise, that it is being secretly recorded. The circumstances in which covert recordings are made, therefore, should be carefully scrutinised before they can be said to fall within the exemption provided in s 5(3)(b)(i) of the Listening Devices Act. 91 As the Commissioner has failed to establish to the requisite standard that the applicant engaged in the five instances of misconduct alleged against him, I find that the applicant's removal under s 181D of the Police Act 1990 was harsh, unreasonable or unjust. 92 In making this finding I have considered the Commissioner's reasons for the decision to remove the applicant as well as the respective cases presented to the Commission by the applicant and the Commissioner. I have also had regard to s 181F(3) of the Act. In the applicant's interest, he has had a long and distinguished career with the NSW Police rising through the ranks to the position of Superintendent. He is held in high regard by his peers. So much has been acknowledged by the Commissioner in the Statement of Reasons. He seeks reinstatement to his former position in the NSW Police for the purpose of obtaining a medical discharge, and to clear his reputation. In relation to the competing public interest which includes the interest of maintaining the integrity of NSW Police I see no impediment to the applicant's reinstatement on the desired terms. His lengthy service with the NSW Police reveals an impressive career during which he achieved a very senior position within the police hierarchy. He has received numerous commendations and awards as a serving member of the NSW Police. 93 Section 89(8) of the Industrial Relations Act 1996 gives the Commission power to make an order for reinstatement under s 89(1) on such terms and conditions as the Commission determines. I propose therefore to order that from the date of this decision he will be reinstated to the NSW Police at the rank of Superintendent, in order to permit him to be medically discharged and to clear his reputation. The applicant requests that, before final orders are made, the parties have the opportunity to confer with the relevant superannuation trustee. Orders The Commission makes the following orders:

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