On Lindy Chamberlain: Chester Porter QC and John Bryson

Last week, the Northern Territory Coroner finally found that Azaria Chamberlain in fact was taken by a dingo near Uluru some 30 years ago.

But how and why was Lindy Chamberlain ever charged and convicted for murdering her own child?

These questions took me back to the observations of Chester Porter QC, counsel assisting the Morling Royal Commission into Chamberlain convictions, who was interviewed by Richard Fidler on Conversations back in 2007:

Chester Porter is one of Australia's best known barristers, whose nickname at the bar was 'the smiling funnel-web' thanks to his legendary courtesy and forensic charm. He has often spoken out against wrongful convictions and brought to light all the forensic evidence blunders in the Lindy Chamberlain case. His new book is called The Conviction of the Innocent.

Chester also has concerns about the way witnesses and experts are judged on the stand. "There was a Court of Appeal decision [and] by two to one, the judges held that the demeanor of the expert witness could be used to judge whether the expert evidence was correct. Quite apart from experts, to judge any witness by demeanour is very risky."

He also believes a count case can be unfairly manipulated by underhand tactics. "If you appeal to the racial prejudices. If, perchance, you were appearing in court, and the chief witness against your client was an Aboriginal, to see if you could find anything the jury hated about Aboriginals and throw that around, that would be grossly unfair, and improper."

Criminal trials can be enormously stressful for the accused - a fact Chester believes it's important to bear in mind. "Very frequently the accused has to go into the witness box and in most cases, there's a person under enormous strain. It would be a most abnormal person who wasn't almost trembling with fear when they go in the witness box as an accused person."

Listen to the interview here.

Another very close to this subject, and who offers some answer to these questions, is the author of "Evil Angels", John Bryson. He was last Sunday interviewed by Jonathan Green on RN Sunday Extra:

A dingo took my baby. It's taken 32 years, but finally we accept the truth of what happened to Azaria Chamberlain on the night of August 17 1980. The fourth coronial inquest into the death of nine-week-old Azaria concluded last week, at last giving Azaria's parents Lindy and Michael some sort of finality and a death certificate bearing that elusive world 'dingo'. John Bryson, author of Evil Angels, has spent decades poring over the Azaria Chamberlain case, and speaks to us today about the hysteria and controversy the case has inspired.

Listen to the interview 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.

The NYPD's criminal stop-and-frisk record

Darius Charney | The Guardian |  15 May 2012 

A march earlier this month against the NYPD's stop-and-frisk policy, led by community leaders and Princeton University professor and activist Cornel West. Photograph: Scott Houston/Corbis

The police department's policy amounts to racial profiling and the illegal harassment of thousands of New Yorkers a day.

Last week, the New York Police Department released quarterly data on its stop-and-frisk program. The numbers are worse than ever, and they confirm everything that is wrong with this practice.

From January through March 2012, 203,500 New Yorkers were stopped and frisked. That's an average of 2,200 people per day. Twenty-two hundred people a day, many of whom are stopped for no reason – or the wrong reason, like the color of their skin, or their age, or their gender expression – patted down, sometimes roughed-up, intimidated, asked for ID in their own neighborhood, sometimes in their own buildings, asked to empty their pockets. Twenty-two hundred people a day stopped by police as they walk down the street on their way home, to school, the corner deli, or to see friends. Twenty-two hundred people a day asked to justify their presence in the city in which they live.

This is already an outrage; but if you look further at the numbers, it's even more outrageous. Despite years of public outcry and lawsuits, theNYPD is stopping even more people than in previous years. In 2011, the department stopped a record 685,724 New Yorkers, a 600% increase since Raymond Kelly took over as police commissioner in 2002. But the 2012 numbers are on track to be still worse. At the rate it's going, the NYPD will stop nearly three-quarters of a million New Yorkers in 2012.

Eight-seven per cent of the people stopped by the NYPD in the first quarter of 2012 were black or Latino, while only 54% of the city's population is black or Latino. Despite claims to the contrary, the data show that even when you take other factors into consideration – including crime rates –stops are disproportionately concentrated in black and Latino neighborhoods. And in all neighborhoods, blacks and Latinos are significantly more likely to be stopped than whites. The data also show that NYPD officers use physical force more often when stopping blacks and Latinos.

Stop-and-frisk, as practiced by the NYPD, amounts to racial profiling, which is illegal. It violates the 14th amendment of the US constitution, which prohibits racial discrimination, and the fourth amendment, which protects against unreasonable searches and seizures.

Stop-and-frisk also fails to make New Yorkers safer. There is an implied trade-off that New Yorkers are told to accept: OK, so the practice is intrusive and humiliating and it violates your rights, but it's necessary to fight crime. That is a lie. The vast majority of stop-and-frisks – 90%, in the first quarter of 2012 – do not uncover evidence of a crime. Less than 1% lead to recovery of guns, the supposed goal of the stop-and-frisk program.

The NYPD is not catching criminals; they are stopping and humiliating thousands of New Yorkers a day who have done nothing wrong.

There is no evidence that stop-and-frisk is responsible for the city's drop in crime rate in recent years. On the contrary, New Yorkers feel less safe and often have their lives upended by unlawful stops. Many communities, especially communities of color, feel that they are under siege. To them, the presence of police on the streets signals not protection against crime, but a danger of becoming the victims of a crime: being illegally stopped, harassed, possibly beat up.

The Center for Constitutional Rights is suing New York City to end these gross violations of hundreds, or thousands, of people's rights. Occupying entire neighborhoods and treating vast portions of the city's citizenry as suspects violates the US constitution and fundamental human rights.

Video: Copping it at the Cross

Killed at Home: White Plains, NY Police Called Out on Medical Alert Shoot Dead Black Veteran, 68

Democracy Now | 29 March 2012




(start the video at 11:00)

As the Trayvon Martin case draws national attention, we look at another fatal shooting of an African-American male that has received far less scrutiny. Kenneth Chamberlain, Sr., a 68-year-old African-American Marine veteran, was fatally shot in November by White Plains, NY, police who responded to a false alarm from his medical alert pendant. The officers broke down Chamberlain’s door, tasered him, and then shot him dead. Audio of the entire incident was recorded by the medical alert device in Chamberlain’s apartment. We’re joined by family attorneys and Chamberlain’s son, Kenneth Chamberlain, Jr., who struggles through tears to recount his father’s final moments, including the way police officers mocked his father’s past as a marine. "For them to look at my father that way, (with) no regard for his life, every morning I think about it," he says.

GUESTS:

Randolph McLaughlin, attorney for the family of Kenneth Chamberlain. He is a longtime civil rights attorney. He teaches at Pace Law School.

Mayo Bartlett, attorney for family of Kenneth Chamberlain. He is the former chief of the Bias Crimes Unit of the Westchester County District Attorney’s office and the former chair of the Westchester County Human Rights Commission.

Kenneth Chamberlain Jr., son of Kenneth Chamberlain, Sr.

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.

Taser Finding: Bugmy Case

Damien Carrick | The Law Report | 28 February 2012

A decision in the Broken Hill Magistrates Court has made it clear that a policeman used excessive force and breached standard police procedures when he tasered Mr Bugmy in February 2011.

Guests: Felicity Graham, Lawyer with the Aboriginal Legal Service, NSW & ACT

Listen to episode here

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.

Lawyers fear rise in use of capsicum spray

Alison Caldwell | ABC Online |  5 December 2011

Lawyers in Victoria say they fear recent changes to the Victoria Police manual could lead police to use capsicum spray or foam more often.

Capsicum spray, also known as pepper spray, is a crowd control weapon which makes the skin and eyes sting and burn.

The spray has been in the news worldwide because of the Occupy protests and two police officers in California were recently suspended after they used the spray on protesting university students.

AUDIO: Concerns police will use capsicum spray more often (PM)

Police in Victoria have been using the spray on offenders since 1998.

Until recently the police manual provided guidelines for the use of capsicum spray, including when it should and should not be used on a person.

The manual used to state the spray or foam should not be used "when a person is passively resisting arrest such as hanging limp or refusing to comply with instructions."

But that guideline was removed from the police manual last year.

Melbourne lawyer Anthony Kelly, from the Flemington and Kensington Community Legal Centre, says he is concerned police will start to use capsicum spray more liberally.

"Our major concerns are that when capsicum spray was first introduced it was very clearly specified that it should only be used in really violent or confrontational situations of serious physical confrontation," he said.

"But more and more we're seeing the use of capsicum spray against people who are simply non-compliant with police orders - so against prisoners, against people in custody, but also against protesters who are peaceful and are engaged in what's sometimes called passive resistance or non-violent civil disobedience.

"Prior to February last year there were very clear guidelines that it should only be used in situations of violence and serious physical confrontation ... and those guidelines have now been removed from the recent edition.

"We're concerned that police are more likely to use capsicum spray against people who are engaged in non-violent protest, peaceful protest."

Swearing at police is not a crime, judge rules

Murray Wardrop | The Telegraph (UK) | 21 November 2011

Swearing at police is not a crime because officers hear foul language “too frequently” to be offended, a judge has ruled.

The decision by the Court of Appeal to overturn the public order conviction of a young suspect who repeatedly said the "F" word while being searched for drugs was last night condemned as "unacceptable".

Policing unions said the ruling would undermine respect for officers.

Overturning Denzel Cassius Harvey's conviction, Mr Justice Bean said officers were so regularly on the receiving end of the "rather commonplace" expletive that it was unlikely to cause them "harassment, alarm or distress".

Mr Harvey appealed against his conviction after he was fined £50 for bombarding police with foul language when they attempted to search him for drugs.

The 20-year-old objected to officers searching him for cannabis in Hackney, east London, and unleashed a tirade of verbal abuse, saying: “---- this man. I ain't been smoking nothing.”

When the search revealed no drugs, he continued: "Told you, you wouldn't find ---- all.”

Asked whether he had a middle name, he replied: "No, I've already ------- told you so.”

Magistrates at Thames Youth Court found him guilty in March last year after concluding Mr Harvey's expletives were uttered in a public area while a group of teenage bystanders gathered around.

"There were people around who don't need to hear frightening and abusive words issuing from young men," the magistrates said.

However, bringing his appeal, Mr Harvey challenged his conviction claiming that no one within earshot – let alone two hardened police officers – would have been alarmed, distressed or harassed by his swearing.

Allowing the appeal, Mr Justice Bean said the only people nearby were the police officers and the group of youths – many of whom may have been "sympathetic" with Mr Harvey.

The expletives he used were heard "all too frequently" by police officers on duty, said the judge, and so were unlikely to have greatly disturbed them.

As for those watching the incident, the judge said it was "quite impossible to infer that the group of young people who were in the vicinity were likely to have experienced alarm or distress at hearing these rather commonplace swear words used".

Peter Smyth, chairman of the Metropolitan Police Federation, said: “If judges are going to say you can swear at police then everyone is going to start doing it.

“I’m not saying that police officers are going to go and hide in the corner and cry if someone tells them to F off, but verbal abuse is not acceptable and this is the wrong message to be sending out.”

The ruling comes after police chiefs were accused earlier this year of surrendering to foul-mouthed louts by banning officers from arresting yobs who taunt them with swear words and offensive language.

Guidance issued by the Metropolitan Police – Britain’s largest constabulary with more than 32,000 officers – told front-line police not to act because the courts will not believe they have been upset by the abuse.

The directive states: “The courts do not accept that police officers are caused harassment, alarm or distress by words such as ----, ----, -------, or ------.”

Do we have a fundamental right to film the police in public?

Hugh Tomlinson QC | The Guardian | 31 August 2011

English case law is unclear, but rulings in the US and Strasbourg suggest we do have a right to photograph public officials

As a number of recent cases have made clear, filming policing activity in public places is a vital method of holding police to account. But there have been continuing tensions between the police and photographers over the practice. In January 2010 there was a protest in Trafalgar Square by photographers against the use of terrorism laws to stop and search photographers. A campaign called "I'm a photographer, not a terrorist" was launched to protect the rights of those taking photographs in public places.

However, although guidance issued by, for example, the Metropolitan Police has made it clear that

"Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing incidents or police personnel"

this often does not appear to have come to the attention of individual police officers (or security guards).

There have been some successful complaints about the use of police powers to prevent photography (see, for example, the complaint by Jess Hurd) but there is no English case law on the relationship between the right to take photographs of the police and freedom of expression. Advances in technology has meant that the legal issues have arisen in a number of different jurisdictions (see "Is filming the police a felony or a right?").

In this context, a recent decision from the United States is of considerable interest. In the case of Glik v Cunniffe (26 August 2011) the US Court of Appeals for the First Circuit held that there is a First Amendment right to record police activity in public. Glik was arrested on 1 October 2007, after openly using his mobile phone to record three police officers arresting a suspect on Boston Common. He was charged with criminal violation of the Massachusetts wiretap act, aiding the escape of a prisoner and disturbing the peace. The charges were dismissed but, with the assistance of ACLU, Mr Glik brought a claim alleging, inter alia, that the police officers violated his First Amendment right to record police activity in public. The Judge refused to dismiss the claim on the basis of qualified immunity and the Court of Appeals dismissed the police appeal holding that

"Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause."

It was noted that

"Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs".

The court's conclusion will resonate with photography campaigners in this country:

"A citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."

The Citizen Media Law Project and the Thomas Jefferson Center have posts about the case.

Although First Amendment jurisprudence is not always consistent with the approach of the English or European Courts, the principles set out in this case are ones which appear to be consistent with the Convention's approach. The importance of the right to gather information for the purposes of promoting public debate has been repeatedly recognised by the Strasbourg court and strongly suggests that there is a fundamental right to take photographs of the activities of public officials - particularly police officers.