An inquiry conducted by Victoria’s anti-corruption agency, the Independent Broad-based Anti-corruption Commission (IBAC), has identified concerns about certain investigative practices, handing down recommendations with implications for both police and private operators.
Operation Gloucester scrutinised improper evidentiary and disclosure activities during the investigation into the 1998 Melbourne murders of two police officers, Sergeant Gary Silk and Senior Constable Rodney Miller.
In its report, IBAC identified several instances where significant witness statements were not effectively disclosed at this criminal trial. The Commission went on to express concern that the procedures leading to such omissions remain in use today, with Victoria Police never definitively outlawing these. Some officers were even taught to use them as part of their training.
Awareness of the problems is very important for those involved in investigations in order to avoid a similar risk to justice in future matters. In addition to police, this includes private and government investigators, particularly as many operators are former officers whose training may not been updated.
Training not only on updated procedures, but ethical standards and the impact of cognitive bias on investigations and decision making.
Specific issues identified in the IBAC report
DESCRIPTIONS OF OFFENDERS DELIBERATELY OMITTED FROM WITNESS STATEMENTS AND RECORDED ELSEWHERE
During the Silk-Constable investigation, descriptions of offenders were omitted from witness statements, with these often recorded only in supplementary documents. Evidence was presented to IBAC that this practice was taught to new recruits, both ‘on the job’ and even at the Victoria Police Academy. The intention was to ultimately assist prosecution cases by helping witness statement stand up to scrutiny. The Commission’s report stresses, however, that such descriptions must not be omitted, as the “statement must be the witness’s full account of the event.”
RELEVANT INFORMATION OMITTED ON THE BASIS THAT IT IS UNRELIABLE OR INCORRECT
Similarly, information had sometimes been left out when the officer believed it to be unreliable or inconsistent with the other evidence. Again, this was done to help achieve a successful prosecution, but the Commission emphasised the need to take down all the evidence in a statement, regardless of the officer’s opinion.
TAKING A ‘REPLACEMENT STATEMENT’ INSTEAD OF A SUPPLEMENTARY STATEMENT
There were also some instances of original statements being destroyed and replaced with new ones. On some occasions these substitutions were even backdated to give a false impression of authenticity. The report states that where a second statement is taken, this must only be as a supplementary statement and disclosed with the original.
ACKNOWLEDGING A STATEMENT IN THE ABSENCE OF A STATEMENT-MAKER
When making a statement, the person must formally acknowledge the truth of its contents with an officer witnessing their signature. In some instances, however, officers had formally recorded acknowledgement without the witness even being present.
FABRICATING CONTEMPORANEOUS NOTES
The report heard evidence of occasions where investigators falsely represented their notes as contemporaneous, when they had, in fact, been created some time later.
CONTAMINATION OF STATEMENTS
Witness recollections must be independent and free from contamination by external information (such as CCTV footage) or knowledge of other witness statements. Disclosing evidence to help jog a witness’s memory is definitely in the danger zone of unethical practice because of the undue influence it might have on the witnesses independent recollection.
FAILURE TO DISCLOSE RELEVANT MATERIAL
All relevant evidence must be disclosed. IBAC was presented with further accounts of investigators destroying material or failing to disclose certain information because in their view, it didn’t serve the cause of justice.
What are the implications for private and administrative investigators?
The IBAC inquiry highlighted several concerning practices that undermine the investigator’s responsibility to collect and present evidence in a reliable and unbiased fashion. Acting on these recommendations to ensure that briefs are not contaminated is important for everyone involved in the investigative process, not just police officers and not only in criminal matters. This ethical duty prevails whether the investigation concerns an administrative decision on workers compensation entitlements, a sexual harassment claim or a civil litigation matter.
For anyone working in this field, these findings demonstrate the importance of maintaining current training, ensuring practice is up to date and meets the highest legal and ethical standards instead of merely pandering to the pressures of an employer.
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