Neighbour can't cop jolly whistle

Gayle Bryant | Heckler | SMH | 5 September 2012

A FRIEND of mine was threatened with an AVO on the weekend. Now, what image has just come into your head? Some violent, uncontrollable loser who lets his fists do the talking? Some drunken yobbo? Try a gentle, non-aggressive man whose only crime is whistling.

No, my fingers didn't slip on the keyboard. I didn't mean to write that my friend enjoys ''wrestling'', or ''wrecking things'', or ''whacking people''. My friend likes to whistle. Not constantly. Just occasionally, when he feels good about the world and has a spring in his step.

On Saturday, however, he was amazed to find that not one, but three police had appeared on his doorstep to tell him his neighbour had complained about this habit. Apparently, my friend was told, his neighbour often hears him whistling as he walks up the path separating their two homes - and this is not OK. My friend was told he can whistle in his own home, but he must not whistle as he walks past his neighbour's front door.


Illustration: Simon Letch

Of all the noises that can be emitted by the body, I would have thought whistling is the least offensive. But now you can be threatened with an AVO if you purse and blow? What next? AVOs for burpers, farters or stomach grumblers?
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Aren't AVOs served when someone is in fear for their safety? How does whistling fit into this category? It demeans their very purpose.

My friend has no intention of changing his behaviour. He told the police that he would see his neighbour in court before he stopped whistling. The fact that three police were sent to pass on the message only added fuel to the fire. Especially, as he pointed out to them, no police had yet responded to his calls to the same station about a stolen bike. I'm guessing a stolen bike hardly raises an eyebrow.

But the novelty of a whistling complaint clearly had the police scrambling for the squad car. They had probably never been called to serve an AVO against a whistler and weren't sure how the perpetrator would react. Perhaps they thought he'd launch an assault on their eardrums by whistling at extreme volume or deliberately off-key. Maybe they thought all the local dogs would come running, resulting in chaos.

Are we becoming so obsessed about being in control of the sounds we want to hear that those we can't control are cause for a complaint to the police? Come on Sydney, why not purse those lips and whistle down the street just as Mark Twain writes in Tom Sawyer, ''with a mouth full of harmony and a soul full of gratitude''.

Background Briefing: "The big binge"

Di Martin | ABC Radio National | 26 August 2012

More pubs and more bars, open for more hours, more extreme binge drinking, more extreme violence and more hospital admissions! What is being done to stem the alcohol tide? Di Martin investigates.

Listen to the program here. 

Not even the state's top cop was immune from culture of surveillance

Neil Mercer | SMH | June 17, 2012

On the eve of the Sydney Olympics undercover police were watching many senior officers, including Peter Ryan.

It was Christmas, 1999, and NSW police commissioner Peter Ryan was winding down after a hectic year. With his then wife, Adrienne, he was enjoying a few drinks after work at the Marriott Hotel, a short walk from police headquarters in College Street in the city.

Unbeknown to Ryan, he and his wife were under surveillance. Not by the dark forces of organised crime, but one of his own officers, an undercover cop known as ''Joe'' who was working for Special Crime and Internal Affairs, commonly known as SCIA.

SCIA's job? To root out corruption. It was supposed to operate to the highest ethical standards.

The surveillance of the state's top cop had been ordered by the then head of SCIA, assistant commissioner Mal Brammer, who believed the Ryans, under the influence of alcohol, might be loose-lipped about confidential police affairs.

Any way you look at it, it was extraordinary. But it was not the first time SCIA, under Brammer, had been involved in highly questionable surveillance of some of the force's most senior ranks.

Earlier that year, Joe and his partner ''Jessie'' - another undercover, or ''UC'' as they are known in the trade - had spent weeks trying to gather dirt on assistant commissioner Clive Small, then head of crime agencies and in charge of squads such as homicide, armed robbery, sexual assault and fraud.

The jailed murderer and notorious crime figure Neddy Smith had alleged Small had formed an improper relationship with a Sydney organised crime figure and well-known drug trafficker, Michael Hurley, and that they were meeting at the Woolwich Pier Hotel in Hunters Hill.

The surveillance ran from January 22 until March 12, 1999.

It turned up three parts of, well, nothing, because neither Small nor Hurley ever appeared at the pub. As Joe and Jessie later remarked, at least the food was good. Small was never even interviewed about the allegation.

Just weeks before they started watching Small, Jessie had been tasked by her superior in SCIA with watching another officer, Detective Inspector Deborah Wallace, who at that time was working for SCIA. That operation ran from May 5 to December16, 1998, and involved Jessie joining the same gym as Inspector Wallace.

Like the surveillance of the Ryans and Small, it turned up nothing. There was simply no evidence that any of them had done anything improper.

As Jessie later remarked: ''It was ridiculous. She [Wallace] was just there to do aerobics.'' Despite it lasting seven months, senior SCIA officers later said they could not recall Jessie being told to watch Wallace.

We know of these three SCIA surveillance operations, from May 1998 to early 2000, because the two undercover police involved, Joe and Jessie, later told their story to Clive Small, the man they had been told was meeting Hurley at the Woolwich Pier.

Small, now retired, and his co-author Tom Gilling revealed the extraordinary saga in their book Betrayed, published in 2010.

Remarkably, the assertion that an ''out of control'' SCIA under Brammer had put its own commissioner, among others, under surveillance did not garner any publicity in the media.

Nor was there any reaction from NSW Police headquarters or the Police Integrity Commission, which is supposed to take a keen interest in allegations of wrongdoing and improper conduct.

But all these years later, those operations have become relevant because of an aspect of another controversial SCIA investigation that did hit the headlines.

It was called Operation Florida and it started in early 1999.

Ray Hadley interview with Barry O'Farrell and Robert Brown

This week we heard Ray Hadley interview Premier Barry O'Farrell on gun crime, the bail review and the "weak-kneed, lily-livered" Attorney General Greg Smith. Ray then moves on to the Shooters and Fishers' Robert Brown, who talks about a bill to deal with the punishment of gun crime.

Listen to the interview here.

It is interesting in the BOF interview to see how the Premier deals with Hadley's ravings. It appears he realises that a proper, reasonable discussion with Hadley is out of the question, and so chooses the only sensible option: tell Ray what he wants to hear and let him think he's won.

When questioned on the bail review, watch how O'Farrell appears to play a successful judo trick on Hadley. Of course, it could be a sign of a complete capitulation to the Police Association's campaign against bail reform, but we rather hope that it's an example of how a seasoned pro like BOF deals with an absolute galah like Hadley.

The Shooters and Fishers' bill is so far receiving no support. That is not surprising, as the major parties are not, generally speaking, made up of fools. The Shooters say on their website:

"We want the law to regard the possession of a firearm during the commission of a crime as a separate crime in itself, not an aggravating offence, as the law sees it now.

"It will be a separate, additional crime to be dealt with separately by the law both in terms of the judgement and the penalty the court might impose.

"The Bill proposes that on conviction of the separate offence of being in possession of a firearm while committing a crime, the person so convicted will be sentenced to a period of detention NOT LESS than the period of sentence for the core crime, to be served cumulatively.

As it stands, an ordinary robbery under s.94 carries a 14 year maximum. Robbery armed with a dangerous weapon under s.98 carries an almost double maximum of 25 years.

The Shooters idea, as far as we can work out, is that instead of the Court treating the presence of a firearm in a crime as an aggravating feature on sentence, the Court should instead, for example, impose a sentence for a robbery simpliciter under s.94 (assessing its' seriousness without counting the gun), arrive at a number, and then impose a separate sentence for the possession of the gun during the crime, which can't be any less than the sentence first imposed, and must be cumulative.

"Unworkable" does not do this conceptual dog's breakfast justice.

Let's not forget these are the same geniuses that introduced s.6B Firearms Act, the amendment that allowed the severely mentally ill Shamin Fernando to obtain a gun and ammunition from a gun club with no licence or permit, and no background checks into her mental health, take them home and then shoot dead her father.

Not much more needs to be said about this mob or their backwoods ideas.

Hadley clearly knew nothing about the bill when Brown made a failed attempt to explain it, but nonetheless went ahead and wholeheartedly endorsed it. The same man who threatens governments they will be in Opposition if they don't bend the knee before him.

Video: Copping it at the Cross

25 minutes and 46 seconds missing in a nasty night to remember

Ilya Gridneff | SMH | March 21, 2012

The curtain still hasn't come down on 29-year-old John Tanner's night out at Sydney Opera House eight months ago ... and it all hinges on a "missing" 25 minutes and 46 seconds.

His enjoyment of the Vivid Live festival took an ugly turn when he says he was sick in a public area after having a glass of wine and wedges last June.



John Tanner and David Rook outside the Rose Bay police station. Photo: Simon Alekna

He says he wasn't intoxicated but unwell, yet three security guards bundled him out and attacked him at 11pm.

His 41-year-old partner David Rook collected him and they drove to Rose Bay police station, 500 metres from their home, to report the alleged assault.

"At first police started to write down our details but then they started giving each other knowing glances and put their pads away," said Mr Rook, who believes that, because he has a stammer and is gay, he was not taken seriously.

The force's new weapon of choice

Anna Patty, Lisa Davies | SMH | March 24, 2012



"It is almost like having your spinal cord severed" .... Lyn Shumack, psychologist. Photo: Craig Abraham

Tasers should not be used in place of communication skills. Anna Patty and Lisa Davies report.

The grainy black and white CCTV footage shows a young Brazilian man running from police before he is shocked by a Taser - a small snapshot of what led to his death.

As it was replayed over and again on internet and television broadcasts, it encouraged viewers to form their own opinions about the rights and wrongs of Taser use.

Reports about the trivial circumstances of 21-year-old Roberto Laudisio Curti's alleged crime - snatching a mere packet of biscuits from a convenience store - and the recent death of both his parents, who were taken by cancer, his youth and promise, made just one thing clear. This was a tragic waste of life.

But questions remain unanswered about whether the Taser was inappropriately used and whether it directly caused the young man's death.

Did he fall and hit his head? Did he have a heart attack? Did multiple firings of the Taser's 50,000 volt-charged pellets kill him? A coronial inquest will soon tell.

The circumstances in which the young police officers drew and fired their Tasers, in the knowledge that each move and sound they made would be captured on a small video camera attached to their Taser, is still unknown. This will be the subject of a investigation to be overseen by the NSW Ombudsman, Bruce Barbour.

At the height of an emotionally-charged debate over the use of Taser guns, Mr Barbour is completing the most comprehensive review of Taser use in Australia, analysing how the device was used more than 1600 times in NSW from October 2008 to November 2010.

During that period, fewer than 30 official complaints were made.

''There are a number of examples publicly discussed already where police have believed that the Taser use was appropriate and where we and magistrates or courts have said we don't think it was appropriate in those circumstances,'' Mr Barbour said. After an earlier review in 2008, he recommended a two-year moratorium before Tasers were widely circulated to allow for the development of protocols, taking into account lessons learned from overseas.

''Unfortunately the government at the time decided they wouldn't follow that course and decisions were made in quick succession to make more Tasers available and to roll them out to all general duties officers,'' Mr Barbour said. ''More than 15,000 police are trained in the use of Tasers in NSW and we have more than 1100 Tasers in use - the most anywhere in the country.''

In response to the overseas experience, Mr Barbour warned of a trend known as ''mission creep'', where police use Tasers in low-risk situations to gain compliance. One woman in the US was shocked by a Taser after refusing to follow a police order to get out of bed.

''We don't want to see police lose the skill to effectively communicate in situations to de-escalate rather than simply resorting to options they have around use of force like capsicum spray and Tasers,'' Mr Barbour said.

The Politics of News: David McKnight’s 'Rupert Murdoch: An Investigation of Power'

David Marr | The Monthly | February 2012


A frustrated politician: Rupert Murdoch in 1985. © Roger Ressmeyer/Corbis

Australian journalists have a sad history of going off to Washington to be ruined. They leave home the hope of the side but after a visit to the boiler room and a peek into the furnace they return enthralled by American ambitions and dream of becoming players in its games of power. Rupert Murdoch was one of these. Visiting Washington in 1972, the young tycoon fell under the spell of Richard Nixon and was never the same again.

The flip-flops ended. He had once sung Fidel Castro’s praises, cultivated crusty old Arthur Calwell and used his new national broadsheet, the Australian, to demand ‘Black Jack’ McEwan succeed the drowned Harold Holt. Crazy stuff. He had swung his UK titles behind Labour and his Australian papers behind the rising Gough Whitlam. Then he went to Washington and turned hard right. Nixon – and later Ronald Reagan, Murdoch’s enduring love – gave him the politics he’s pursued and the rhetoric he’s used ever since.

It’s been a long, colourful and often whacky ride, not least for News Corporation. Murdoch has freely spent its blood and treasure for the best part of 40 years on his political causes. “He was and still is a frustrated politician,” wrote John Menadue, who served both Whitlam and the News chief. “He can’t leave politics alone.”

Malabar police station named Aboriginal land in LEC

Vanessa Watson | The Southern Courier | 27 January 2012



The former Malabar Police Station at 1234 Anzac Pde is now Aboriginal land after the Land and Environment Court upheld the La Perouse Local Aboriginal Land Council. Photo: Alex Wisser.

MALABAR Police Station is now Aboriginal land and police must vacate within 60 days after the Land and Environment Court upheld an appeal against an earlier decision to knock back a land claim on the site by the La Perouse Local Aboriginal Land Council.

Following Justice T.W. Sheahan’s decision in the Land and Environment Court, the former Malabar police station at 1234 Azac Pde is now “claimable Crown land” under the Aboriginal Land Rights Act of 1983.

La Perouse Local Aboriginal Land Council CEO Chris Ingrey told the Courier the building’s future use would be determined by the council’s board and members.

“Some of the board members that I’ve been in contact with are quite excited about the outcome,” Mr Ingrey said.

“This legislation is the only form of compensation for the dispossession of land.”

Former police minister, Maroubra MP Michael Daley, called on Premier Barry O’Farrell to appeal the court’s decision and to “honour the Liberal Party’s commitment to a continuing police station at Malabar”.

“In the state election in March last year, the Liberal candidate for Maroubra promised that a Liberal Government would open a fully functioning police station at Malabar,” Mr Daley said.

Mr Daley said he was “very disappointed” by the decision and that the court had “rejected evidence from local police that police were still using the station”.

“That’s why, as police minister, I spent $300,000 upgrading the station, so it could continue to be used by police in our local area.”

Eastern Beaches Police commander Superintendent Gavin Dengate, who provided evidence during the proceedings, said the decision meant the local area command could have a reduced capacity for conducting operations.

“From a local area command perspective, having a reduced capacity to conduct operations is disappointing,” Supt Dengate said.

“It certainly doesn’t mean the La Perouse Aboriginal Land Council can’t do something in support of local police.”

During the proceedings, the court rejected the police minister’s earlier refusal against the land claim on the grounds the building was “lawfully used and occupied” for the purposes of policing.

Under the Aboriginal Land Rights Act, Aboriginal land councils in NSW are able to claim unused Crown land on behalf of their members as compensation for their historical dispossession.

Under the Act, “claimable Crown lands” can mean land not lawfully used or occupied, or lands that are not needed, nor likely to be needed, for an essential public purpose.

Sniffer dogs get it wrong four out of five times

Anna Patty | SMH | December 12, 2011



Police say ''accurate'' … a sniffer dog at a festival. Photo: Dean Sewell

A RECORD 80 per cent of sniffer dog searches for drugs resulted in ''false positives'' this year, figures show.

The figures obtained from the state government in response to parliamentary questions on notice show 14,102 searches were conducted after a dog sat next to a person, indicating they might be carrying drugs. But, in 11,248 cases, no drugs were found.

Only 2854 searches - 20 per cent - in the first nine months of this year, resulted in drugs being found, the figures show.

Last year, of the 15,779 searches conducted after police-dog identification, no drugs were found in 11,694 cases. Drugs were found in 4085 cases, resulting in a ''false positive'' rate of 74 per cent, said the Greens MP David Shoebridge, who obtained the figures.

Matthew Pels, 22, of Erskineville, a hospitality student, said he was one of the thousands searched in a public place and found not to be carrying drugs.

Mr Pels said a police dog sat next to him at Redfern station before he underwent a search about six months ago. When his pockets were emptied, a packet of dog treats was found.

''The whole thing was unnecessary,'' he said. ''I think it was a violation of my privacy.''

Mr Shoebridge said the figures showed thousands of innocent people were being ''ritually humiliated'' publicly.

''No test which has an 80 per cent error rate could be considered a reasonable basis on which to conduct an intrusive public search of a citizen going about their daily business,'' Mr Shoebridge said.

''Now that we know the error rate is so high, the program needs to be halted. Because of where they operate, police sniffer dogs tend to target young people and Aborigines. If this was happening in the car parks of merchant banks, there would be outrage.''

The secretary for the NSW Council for Civil Liberties, Stephen Blanks, argued the use of sniffer dogs infringed people's freedoms and could only be justified if it resulted in a high rate of detections.

But police strongly defend the use of the dogs, saying they are reliable and can detect remaining traces of drugs on people, even after they have been disposed of.

Inspector Chris Condon of the NSW Police dog unit said the detection dogs were extremely accurate, adding that more than ''80 per cent of indications by the dogs result in either drugs being located or the person admitting recent contact with illegal drugs.

''Any suggestion otherwise is incorrect,'' Inspector Condon said. ''Drug-detection dogs are an important facet of the overall harm-minimisation strategy of the NSW Police Force. Drug-detection dogs are an extremely effective deterrent to persons transporting drugs for the purpose of supply.''

The NSW Police Association supports the dogs' use. Its president, Scott Weber, has said they have been valuable deterrents at events such as The Big Day Out.

A spokesman for the NSW Police Minister, Mike Gallacher, said the government fully supported the use of dogs because police had found them effective.

Don Weatherburn, the director of the NSW Bureau of Crime Statistics and Research, has said the high number of searches relative to detections is not an indication of failure. ''The question is how many people would carry drugs if not for sniffer dogs,'' Dr Weatherburn said.

Nightclub assailant protests he was the real victim

Geesche Jacobsen | SMH | 7 November 2011

An attacker's family links police response to the profile of the victim, writes Geesche Jacobsen.

WHEN Blake Markou was assaulted outside Souths Juniors about six years ago, needing stitches to his face, he says police told him to ''piss off'', rejecting the idea of taking a statement or trying to gather video footage of the incident.

But when he assaulted a young man in an Oxford Street nightclub in August 2009, he says while trying to defend a friend, police swung into action.

Markou and his family believe the difference in the police response is not because of the nature of the attack, but the identity of the victim: the then 19-year-old son of the senior Crown prosecutor, Margaret Cunneen, SC.

Her son, Matthew Wyllie, lost two teeth and had his upper jaw dislodged after being hit twice, by two men. He required four operations, including two bone grafts.

The case has involved a complaint to the Legal Services Commissioner, allegations of improper conduct, and an internal police investigation, and now the state's highest court will hear an appeal against one of its lowest penalties.

The complaints have been dismissed and police and the DPP are adamant the case was handled like any other, but Markou's mother, Linda, remains angry.


Margaret Cunneen ... her son was beaten up. Photo: Ben Rushton

''They should have arrested the whole bloody lot of them and charged them with affray,'' she said of the incident in the Nevermind nightclub when two groups of friends became involved in a confrontation.

''If I was in that position again, I probably would not do anything different,'' says Markou, now 27. ''I would jump in and help my mate.''

Markou was charged with assault occasioning grievous bodily harm, given stringent bail conditions and a curfew, which was checked by police on average every second night, around midnight, for four months.

The whole incident had lasted a few seconds, and the District Court Judge Michael Finnane found Mr Wyllie's injuries might have been caused by a hit from the second man. He convicted Markou of the lesser charge of assault occasioning actual bodily harm, sentencing him to a nine months intensive corrections order, a new penalty which has replaced periodic detention.

Markou is appealing the conviction and sentence in the Court of Criminal Appeal because it stops him from joining the army.

Two other men involved were dealt with in the local court and given good behaviour bonds.

Williams v Director of Public Prosecutions (NSW) [2011] NSWSC 1085

In the matter of Williams v DPP, the Supreme Court of New South Wales this week handed down a hugely important decision clarifiying the arrest power of Police under s.99 of the Law Enforcement (Power and Responsibilities) Act ("LEPRA").

The Court was required to decide:

(1) whether the power of an officer to arrest without warrant on the basis of reasonable suspicion  - the power found in s.99(2) - is constrained by s.99(3), which states that arrest must be not be carried out unless Police suspect it is necessary to achieve one of the stated purposes in the subsection, examples of which include to ensure the attendance of the person at Court; and

(2) where an arrest does not comply with s.99(3) whether the arresting officer was acting "in the execution of duty".

Prior to LEPRA, an arrest could be challenged as being 'improper'-  rather than 'unlawful' - on the basis that arrest was unnecessary, for example, where the offence was trivial, where Police knew the person's name and address or had established their identity, and there was no concern they either would not attend Court, or continue to commit the offence. 

The principle relied upon is that arrest is a measure of last resort, and that, where appropriate, less intrusive mechanisms, such as the issue of a summons (or later Court Attendance Notice), should be employed to commence proceedings.

In Fleet v District Court of NSW and DPP v Carr the Supreme Court established clear authority for these propositions, which also appear in the NSW Police Handbook. However, the only available sanction against an improper arrest is the exclusion of evidence improperly obtained, via s.138 Evidence Act (NSW). 

Rather than 'real' evidence, the evidence sought to be excluded by defence practitioners following an improper arrest very often fell into the category of evidence concerning the commission of further offences such as resist arrest, assault police, and intimidate police. 

In order to succeed, defence would need to overcome the argument that even where Police make an improper arrest they generally do not set out to "obtain" evidence of subsequent offences committed against them

In Carr, Smart AJ applied a 'but-for' test to determine the issue: that is, if the Police had not improperly arrested the person, there would have been no subsequent offences committed against Police while the person was under arrest. His Honour also made clear that such a test should be confined only to the facts of that case. 

Following Carr, a series of further decisions by the Supreme Court, most notable among them DPP v Coe and DPP v AM, developed s.138(3) such that evidence of further offences might be said to have been "obtained" by an improper arrest where the commission of such offences either had been intended by the Police or assessed by the Court as having been objectively likely to have followed the improper arrest. 

Cases fought on this basis were won only because the evidence concerning the further offences was excluded, leaving no evidence on which prosecutions could rely.

An easier path to defeat the same sort of charges involving Police is found in the argument that Police were not acting "in the execution of duty" - an essential element of proof for each of the resist, assault and intimidate charges. However, to succeed in this argument, defence must establish that Police were acting "unlawfully" rather than merely "improperly". Provided an arrest was justified by reasonable suspicion, it would not be found to be "unlawful" simply by reason of it being unnecessary.

After the introduction of LEPRA, it has not been clear what consequences will flow from a failure to comply with s.99(3). Although the sub-section says police "must not arrest .. unless", a submission that failure to comply with the sub-section was unlawful - meaning Police were not acting in the execution of their duty - has been met with an inconsistent response from the bench.

However, with the decision of Williams it is now clear that an arrest found to be unnecessary with reference to the s.99(3) criteria may not only be improper in the Carr sense, but will also constitute an illegality and defeat a charge where "execution of duty" is an element.

Congratulations go to the Aboriginal Legal Service for carting the case from Kyogle Local Court to the Supreme Court. Just as they did with Carr, the ALS continue to push the boundaries of the law in this area. 

Mass detention of persons

From Schurr, Criminal Procedure NSW

[6.1620] Mass detention of persons

Sometimes search warrants are executed on clubs or hotels, where hundreds of people may be present. The requirement for reasonable suspicion applies in those situations. The probability is also that many charges for hindering will be laid and many allegations of false imprisonment made. The NSW Ombudsman in his 1986 report on the execution of a search warrant on "Club 80", a gay nightclub in Oxford Street, Sydney, found that between 150 and 300 people were detained in the club. Police said that patrons remained in the premises to assist police, and the complainants said that they were forcibly detained until they supplied their name and address. The Ombudsman found that this behaviour was "unreasonable" in that it breached the Commissioner's Instructions that police had no power to detain and question prior to arrest. The Ombudsman found that the police suggestion that the patrons voluntarily waited two or three hours to give their names and address, particularly at a time when homosexual activities were still illegal in New South Wales, was ludicrous.

Unlawful arrests class action set for showdown

ABC Online | 23 August 2011

The New South Wales Government will ask a judge to throw out claims that police could have avoided hundreds of unlawful arrests.

The NSW Police Force is facing a class action in the state's Supreme Court by young people who claim they were wrongfully detained because of glitches in the police computer system.

The claimants are being represented in court by the Public Interest Advocacy Centre.

The centre's senior solicitor, Vavaa Mawuli, says there have been complaints about the problem for years.

"To the Police Commissioner, the NSW Attorney-General and senior staff members within NSW Police and the Attorney-General's office," Ms Mawuli said.

"That's been happening consistently for five years with no result so far."

But despite that the ABC understands the State Government will tomorrow ask the court to throw out the claim that arresting officers should have known of the problem.

The Police Force's own prosecutions unit also warned more than a year ago of an "enormous risk" of claims for damages.

Barely a sniff of trouble, so Greens say it's time to call off the dogs

Anna Patty | SMH | 9 July 2011

POLICE sniffer dogs are only identifying drugs or weapons in a small minority of searches in which they are used.

Government figures supplied to the Greens in response to questions on notice show that last year sniffer dogs were involved in 551 searches for firearms or explosives, which identified only five positive cases.

Of the 15,779 searches for illegal drugs, 5087 identified them.

A NSW Greens MP, David Shoebridge, who obtained the figures from the state government, said sniffer dogs had been a ''clear failure'' and ''should be stopped immediately''.

''These figures prove that sniffer dogs are a waste of police resources and the government must commit to an immediate review of their use,'' Mr Shoebridge said.

''When intrusive weapons searches using sniffer dogs have a failure rating of more than 99 per cent, they are more [of] a hindrance to policing than a help.

''In more than two thirds of drug searches involving sniffer dogs, the police are finding no drugs at all.''

Mr Shoebridge said the police drug detection dog unit, consisting of 14 dogs, cost $868,037.39 in the 2002-03 financial year.

''If we assume the same costs applied in the 2003-04 financial year, then each successful supply prosecution in this period cost over $90,000 in drug detection dog costs. Most of these were for small amounts of drugs,'' Mr Shoebridge said. He said he was concerned that police may be subject to civil claims for the intrusive searches ''when the basis on which they are undertaking them is so statistically poor''.

''This has meant that thousands of NSW citizens, mainly young people out enjoying themselves, have been subject to police searches with little legitimate basis,'' he said.

The secretary for the NSW Council for Civil Liberties, Stephen Blanks, said the use of sniffer dogs infringed people's civil liberties and could only be justified if they resulted in a high rate of successful detections.

Don Weatherburn, the director of the NSW Bureau of Crime Statistics and Research, said the high number of searches relative to detections was not an indication of failure in the context of deterrence.

''The question is how many people would carry drugs if not for sniffer dogs,'' Dr Weatherburn said.

''We don't have any statistics on that.''

The president of the NSW Police Association, Scott Weber, said the police dogs were an ''extremely valuable resource'' in preventing crime.

''They stop people taking drugs into large venues such as the Big Day Out,'' Mr Weber said. ''It is hard to get tangible results of that success.

''Even if they detected one firearm or detected one drug dealer, that is protecting the community and saving lives.

''The cost of losing one life is worth more than the cost of having a sniffer dog.''

Detective Inspector Chris Condon from the NSW Police dog unit said the number of drug dog searches included all search warrants, property, motor vehicle and personal searches.

The number of firearms and explosive searches also includes all search warrants as well as hotel and other building and property clearances. He said the detection dogs were ''extremely accurate - approaching 100 per cent accuracy''.

''In the case of firearms and explosive searches, there have been no false positives,'' Detective Inspector Condon said.

''In the case of drugs, the animals even have the ability to detect the residue of prohibited drugs on people who have previously been in possession of them.

''The dogs have a strong deterrence factor: they not only lead to the seizure of drugs from dealers and users, but people also dump their drugs when they see the dogs.''

Teenager joins in class action over false arrests

Geesche Jacobsen | SMH | 8 June 2011

IT'S not often that a magistrate apologises to a person appearing before them. But that's what happened to Musa Konneh last year.

''The magistrate said: 'This boy is not meant to be here, why is he here?' The magistrate even said 'sorry' to me,'' the 19-year-old migrant from Sierra Leone recalled.

In the 12 hours before he appeared before court Mr Konneh had been falsely arrested, handcuffed, strip searched and spent a night in the police cells.

Two officers knocked on his door at 9.30pm on a Saturday night and arrested him, insisting he had breached his bail conditions by not reporting to police. He tried to explain they were wrong, but to no avail.

In fact, Mr Konneh was no longer on bail, and his case - for allegedly riding on the train without a ticket - had been dismissed in the Children's Court four days earlier. While the court had a record of the decision, the police computer system, which is meant to receive information from the courts system Justicelink, had not been updated.

A class action was filed in the Supreme Court yesterday against the NSW government over this and other detentions. Mr Konneh is the first young person to join it.

The case, launched jointly by the Public Interest Advocacy Centre and Maurice Blackburn Lawyers, will be open to other young people detained for a breach of bail conditions that were no longer in place at the time of the detention.

The case would seek to argue that it was ''not reasonable'' for police to rely on their COPS database when arresting young people for a breach of bail because the problem had been known for years, said Maurice Blackburn's NSW managing principal, Ben Slade.

He said there could be at least 200 young people falsely arrested in similar conditions.

The Herald reported in December that 22 people had been paid $2.7 million in compensation for wrongful arrest and false imprisonment because of the computer problem. The NSW Ombudsman last year reported three cases of Aboriginal men from Kempsey arrested for an alleged breach of bail conditions that were no longer in place.

Mr Slade said police were targeting ''vulnerable young people'' for the enforcement of bail conditions and Aboriginal children were over-represented among those falsely arrested. Police should only deprive children of their liberty as a last resort, he said.

He called on the government to fix the problem and ''take responsibility for this wrongful conduct … and apologise to them and compensate them''.

The Coalition and Mandatory Sentencing

Who will prevail in the battle between liberals and “rednecks”?

In each election in New South Wales since 1999, the Coalition has promised a policy of mandatory sentencing in relation to one or more offences. In 1999, the Opposition spokesman on Legal Affairs, John Hannaford, proposed a form of grid sentencing.

In 2003, the Coalition went to the election promising mandatory minimum sentences for a range of offences including murder in the first and second degree, murder of a police officer, gang rape and some commercial drug offences.

It was reported that the original policy, drawn up by Shadow Legal Affairs spokesman Chris Hartcher, had also included mandatory sentences for property offences, and that a split in Shadow Cabinet had developed over the proposals.

A leaked document made its’ way into government hands, and it was revealed that Opposition front bencher, Brad Hazzard, had led the argument against mandatory minimums, and for the proposition that judicial discretion in sentencing should be maintained.

In the end, Opposition Leader John Brogden went to the 2003 election with a modified proposal that did not include property offences, but nonetheless would have required courts to impose, for example, 25 year minimum sentences for first degree murder, and life imprisonment for the murder of a police officer. These laws would have permitted no judicial discretion to impose a sentence that was appropriate to the facts of the offence or the offender.

In 2005, Brogden had again proposed to take mandatory sentencing to the next election, only to lose the Opposition leadership in disgrace. The new leader, Peter Debnam, picked up the baton and maintained the policy of mandatory life for the murder of a police officer, with Hartcher again putting forward proposals to end 'soft' jail terms and introduce a new system of sentencing for violent criminals.

Arriving as a new MP in 2007, former Deputy Director of Public Prosecutions Greg Smith became the new Shadow Attorney General. In that role, Smith has repeatedly stated his determination to take Coalition policy in a very different direction to his predecessors. In 2009, he told the Australian’s Chris Merritt:

"I have (Liberal Party) support for the view that the law-and-order auction should not be continued in the next election." 

He said his colleagues in the state opposition "did not take a lot of convincing" to abandon the law-and-order auction and embrace the need for more effective rehabilitation of prisoners:

"The Liberal Party are supportive of this line, as are people who I have spoken to in the community.”  

 Smith went on to say: "I know there are still rednecks out there that want mandatory sentencing and matters of that sort," before emphasizing his priority to reduce the growing budget devoted to imprisonment.

Despite these comments, and what would appear to be a denunciation of mandatory sentencing by Smith, the Coalition have not abandoned their policy to introduce mandatory life for the murder of a police officer.

We already know what such an amendment might look like, care of a 2007 private members bill, introduced by NSW’s next Police Minister, Mike Gallacher, but defeated in the Legislative Council.

The proposed amendment was as follows:

19B Compulsory life sentences for murder of police officers 

1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder of a police officer if the murder was committed:

(a) While in the execution of the police officer's duty, or 

(b) As a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of the officer's duty. 

2) A person sentenced to imprisonment for life under this section is to serve the sentence for the term of the person's natural life. 

3) This section applies to a person who is convicted of murder of a police officer only if the person was of or above the age of 18 years at the time the murder was committed. 

4) If this section requires a person to be sentenced to imprisonment for life, nothing in section 21 (of any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or alternative sentence. 

5) Nothing in this section affects the prerogative of mercy. 

In the Second Reading Speech, Gallacher referred to his own background in the Police Force, and the deaths of David Carty and Glenn McEnallay, both officers murdered in the execution of their duty. The bill was strongly supported by the NSW Police Association, as well as the parents of Carty and McEnally.

Interestingly, the second reading speech referred to the case of Taufahema, a co-accused in the murder of McEnallay, who drove the vehicle being pursued by Police, and in which the shooter was a passenger.

Taufahema’s murder conviction was quashed on appeal to the CCA, on the basis of certain principles of accessorial liability, and he was acquitted of the charge. Notwithstanding that the shooter, Penisini, was convicted of murder and sentenced to 34 years, with a 23 year non parole period, McEnallay’s family and the Police Association were outraged by Taufahema’s acquittal.

Although this result had nothing to do with the adequacy or otherwise of sentencing, and concerned principles that most people (including criminal lawyers) do not understand, Gallacher was not deterred:

"The community and the Opposition—and certainly Glenn McEnallay's parents—believe the driver of the car involved was implicated in the murder and should have stayed in jail for the murder of Glenn. The cases of those involved in the murders of David Carty and Glenn McEnallay highlight the soft stance taken in New South Wales against people who murder police officers. This bill is another step in providing a higher level of protection for police."

It would appear this policy has remained something of an article of faith for some members of the Coalition, and like other matters of faith, resistant to reasoned argument. And as the following part of the second reading speech reveals, Gallacher’s understanding of the effect of the amendment and the removal of judicial discretion was, at least in 2007, questionable:

“One member referred to it as a simple bill. It is a shame that the simpleton did not read this so-called simple bill. The Hon. Lynda Voltz spoke about her big issue with this legislation. In fact, it was her only issue in the contribution she made some time ago. She said: 

The question that comes to my mind is: If this sentence is mandatory, is there no situation that we can see where a judge should hear the case and give some weight to the decision? 

Should we not ask the judge to look at the situation? 

Had she bothered to read the bill she would have seen that in relation to the compulsory life sentence for the murder of police officers—new section 19B—it says: 

Nothing in this section affects the prerogative of mercy. 

In other words, the very issue that she hung out as the only one that was causing her not to vote for this bill is that we are denying judges the ability to use their prerogative with regard to mercy."

It is not known whether there will be a further debate within the party over this policy, or the position that Greg Smith will take. His previous statements appear not to favour mandatory sentencing, yet he has not spoken publicly against this proposal. Requests made to his office this week to clarify his position have not been answered.

Those in the criminal law world might remember that Mr Smith prosecuted the brothers Gilbert and Richard Adam for the murder of Constable David Carty in 1998, and then went on to appear in the appeals in the CCA and High Court. One wonders what that experience had on the formation of his attitude to this policy.

What we do know is that this bill will resurface at some stage. Whether the so-called “rednecks” prevail over the small-l liberals of the Coalition remains to be seen.

In 2000 the then PM John Howard said:

“As a matter of principle, I do not agree with mandatory sentencing. I agree with strong sentencing laws, but in the end I do think these matters ought to be determined by judges and magistrates.” 

Can we expect the Liberal Party to follow the lead of their patriarch, and stand up for the principle of judical discretion in sentencing? And will this issue give us any line on O'Farrell, and his reputation as a moderate?

Depending on where the Upper House votes fall tomorrow, the answers to these questions may not be too far away. 

Wrongly imprisoned kids due compo: lawyer

From SMH, 28 December 2010:

Young people wrongly imprisoned as a result of computer glitches will be part of a class action suit to be filed against the NSW government.

Ben Slade, managing principal of Maurice Blackburn Lawyers, is heading the suit against the state government.

He says young people are being wrongly imprisoned because of an apparent lack of communication between NSW's court-based computerised information system JusticeLink and the NSW police computer system COPS.

In some cases when a bail condition had expired, such as a curfew, police were not receiving this information and continuing to arrest juveniles they see as breaching the rules, he said.

"What we want in this class action is for the government to take it seriously. And we're calling upon the government to talk to us before we file this action and sort out number one: how the system's going to be fixed up so it does work, and number two: how these young people should be properly compensated for it," Mr Slade said.