Joint Standing Committee on the Corruption and Crime Commission — Fourth Report — “Parliamentary Inspector’s report on a complaint by Dr Robert Cunningham and Ms Catherine Atoms”

Resumed from 12 October.

Motion

Hon ALISON XAMON: I move —

That the report be noted.

I want to make some comments about this report, which I think is a report of important public interest. If members have not had an opportunity to read the report, I urge them to get a copy. The committee has made a couple of recommendations. It follows the report by the parliamentary inspector, who is responsible for the oversight of the Corruption and Crime Commission and whose report is also tabled at the back of this report.

For those people who are unaware of the history, I might quickly summarise the circumstances that have led to this report. I imagine this may provoke some people’s memories about this incident, because it has been the subject of considerable media coverage over the past decade. In summary, in November 2008, Dr Cunningham and his wife, Catherine Atoms, were arrested while they were attempting to help a man who had fallen into a garden bed in Fremantle. During the course of their arrest they were both tasered and subject to rough treatment by the arresting police officers.

In December 2008, Dr Cunningham complained to the Corruption and Crime Commission about the incidents and the CCC oversaw an internal police investigation that found no evidence of misconduct on behalf of the police officers. I will say a little bit more about that, because the internal police investigation was done effectively by the same people within the station. In April 2010, Dr Cunningham and Ms Atoms were subject to criminal proceedings for their alleged conduct leading to their arrest on 2 November 2008 and the charges were subsequently dismissed. Then in mid-2010, Dr Cunningham wrote to WA Police, the CCC and the Parliamentary Inspector of the Corruption and Crime Commission regarding the ongoing investigation of the incident. I think WA Police, almost predictably, said that they had found that the officers had acted appropriately. The CCC referred the matter back to WA Police for investigation and ultimately determined not to take any further action, so there was no joy for Dr Cunningham and Ms Atoms at that point.

In 2011, the parliamentary inspector decided to investigate the matter and, as I have mentioned, that report is annexed to this report. The parliamentary inspector found that serious and credible complaints concerning police use of excessive force should be subject to a full independent investigation by the CCC. I note, and I think this is quite significant, that in December last year, Dr Cunningham and Catherine Atoms successfully sued the police officers as well as the state of Western Australia. The District Court determined that the nature of the police officers’ conduct was unlawful and malicious, and Dr Cunningham and Ms Atoms were awarded general aggravated exemplary and special damages totalling just over $110 000 and more than $1 million respectively. That was after going through all the court proceedings.

What is of great concern to me, however, is that despite having had their case demonstrated in a court of law and despite being awarded damages for what happened to them, the CCC still has not seen fit to further investigate the matter. There are two recommendations from the committee about this. The first recommendation is —

That the Corruption and Crime Commission recommends to the Commissioner of Police that the conduct of the police in this matter is reinvestigated by experienced investigators unconnected to the original internal investigation. Focus would be on ascertaining whether any criminal conduct on the part of police occurred and if so, consideration be given to appropriate prosecution and disciplinary proceedings.

The second recommendation is —

That the Corruption and Crime Commission reassess and report on the conduct of the police involved in the complaint made by Dr Cunningham and Ms Atoms, in the light of all relevant facts, including those established upon investigation and having regard to the findings made by Her Honour Judge Davis in CUNNINGHAM – v – TRAYNOR [2016] ...

They are the recommendations of the committee, effectively backing up the independent report by the parliamentary inspector, who has found that in effect justice has not been served for these two people. This is something we should be particularly concerned about. Police justifiably enjoy a particular status within our community as the people who are responsible for upholding the laws of this state, and that means that when the police breach these laws, when people are subject to police misconduct, it needs to be treated with absolute, utmost seriousness. Likewise, the CCC has unique and very extensive powers and it has an obligation as the independent body charged with the oversight of overarching investigation into what is happening with police corruption to do that.

Quite frankly, I am astounded by the decision of the CCC, with all the evidence that has been made available to it both through an independent assessment by the parliamentary inspector, which all members are welcome to read, and by an independent court that has the full weight of the burden of needing to weigh up evidence in front of it. They found that wrongdoing had occurred and yet the CCC has still formed the view that it will just let it go and does not have to deal with it anymore. We have made comment about this in the report, but it is only the sheer tenacity of people like Dr Cunningham and his wife, Catherine Atoms, that has enabled things to get to this point. I shudder to think about how many people do not have the sorts of resources these people have at their disposal in terms of being educated and having a level of privilege to be able to pursue this. I shudder at the number of people who have also been subject to gross misconduct by the police, but have never had any opportunity to pursue it as far as they can.

I think this is an issue of enormous public interest. This is something that all members should be very, very concerned and very upset about, because the one thing we expect is that when wrongdoing occurs in the police force, it will be independently assessed in the police force. If that does not occur, we expect the CCC to step in to ensure that wrongdoing is uncovered, remedied and addressed. In this case, I have to say that the system has comprehensively failed Dr Cunningham and Ms Atoms. I also point out that even though they have been through an extensive court process and were awarded damages, they are still being dragged through an appeal process. I think that is an absolute abomination. There is still no independent investigation or oversight pertaining to their matter. They are still being dragged through the courts.

This has been 10 years of their lives. I cannot imagine the toll that this has taken on the two of them. I have to say that this is something that every single member in this place should be paying very close attention to and should be very concerned about. I am not quite sure what is happening with the government response to this report, but the one thing that absolutely needs to happen is for the CCC to suck it up, recognise that it has got this wrong and accept that it should have investigated properly in the first place and that it failed to do that. Now is the time for the CCC to do its job. It is getting a lot of money and it has an awful lot of power. The CCC needs to recognise that it got this wrong. It needs to backflip and ensure, as per the first committee recommendation, that this is properly investigated.

I will also say that in the transcript of the court hearings a number of really concerning matters come to light, and that forms the basis of the second recommendation. There are some serious allegations of potential wrongdoing that are worthy of further investigation. They are not necessarily canvassed in the full report, but, of course, the court transcript is on the public record. I urge members to look at this.

[speeches and comments of various members]

The CHAIR: Hon Alison Xamon, were you about to seek leave to make a further contribution?

Hon ALISON XAMON: Yes, I am.

Leave granted.
 

Hon ALISON XAMON: I understand that I have five minutes.

I rise to thank members for their contributions and to thank the Leader of the House for giving an undertaking to draw the attention of relevant ministers to this report and seeking to be able to give a response. I think it is really important that we do not allow this issue to fall off the agenda, precisely for the reasons that have already been articulated. We have many amazing police officers in this state. Police officers I know tell me that they really do not like the rotten apples within their ranks who bring disrepute to the entire force. Likewise, when internal investigations break down, it reflects badly on the entire Police Force as well as other police officers. In this case, I frankly think that the Corruption and Crime Commission has also brought itself into disrepute by stubbornly refusing, despite all the evidence that was presented to it over and over again, to undertake an independent investigation.

I would like to offer a personal apology to Dr Cunningham and Ms Catherine Atoms for what they have been through. I would like to thank them for their sheer bloody-mindedness in making sure they pursued this to try to get some sort of justice. I recognise that it is not over for them yet and it will not be until the whole appeals process is effectively resolved, when it is either withdrawn or found in their favour. I am sorry that a decade on, they are still not able to put this behind them. I hope that at the very least, if the appeals process is disposed of and if the damages are still able to be maintained—even if the CCC decides it will not do its job—there can be some comfort for Dr Cunningham and Ms Catherine Atoms. At the very least, I hope that the Joint Standing Committee on the Corruption and Crime Commission and the Parliamentary Inspector of the Corruption and Crime Commission, and, reflecting on comments in this chamber, the members of the Legislative Council, recognise that a wrong has been committed and that justice has not been served. As such, it is important to me that I acknowledge this and offer my apologies for what they have been subject to.

I remain very concerned about the situation with many people who do not have the level of training and education that these two have, as well as the privilege of being white and educated—all these things—that have enabled them to pursue this matter as doggedly as they did. I look forward to hearing the government’s response. I particularly hope that a decision is made not to pursue the appeal. I do not think that would be in the interests of justice; it is certainly not in the interests of the wellbeing of those two people who were subject to such ongoing injustices. Again, I urge members to read the report. I think it is really important to have an idea of how wrong things can go and when our systems fail. Systems are in place for very good reasons. When we fail to ensure they do their jobs, it has very real repercussions for innocent citizens. I encourage members to read the report and I thank members for their contributions.

Consideration Postponed

Hon PETER COLLIER: I move —

That we postpone the consideration of the fourth report given that the Leader of the House has offered to provide a response from the government.

The CHAIR: The Leader of the Opposition has moved that we defer further consideration until the next sitting of the house.

Hon SUE ELLERY: I am not sure whether I need to do this as a point of order or if you will give me the call, but I indicated by way of interjection that I would raise the issues with the Attorney General and the Minister for Police. Without speaking to them, I cannot give a commitment on behalf of both of them that members will get a formal response from the government. I have said that I will raise the issues with them.

The CHAIR: Thank you, Leader of the House. In contemplation of that, I think the intent of the motion is to keep this report alive. It is for procedural convenience. It has been moved that the consideration of this report be deferred.

Question put and passed.

 

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