“Unfinished business: The Corruption and Crime Commission’s response to the Committee’s report on Dr Cunningham and Ms Atoms”
Motion
Resumed from 30 November 2017.
Hon ALISON XAMON: I move —
That the report be noted.
I have previously spoken in this place about the matter dealt with in this report. I am going to note the two recommendations arising from this report. The first recommendation states —
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.
To refresh members’ memories in case they are not quite sure about the matter we are referring to, this report follows on from the parliamentary inspector’s report on a complaint by Dr Robert Cunningham and Ms Catherine Atoms. This is the issue of the married couple who, in 2008, were walking through Fremantle and went to help a gentleman who had fallen into some bushes, and found themselves at the wrong end of being tasered by the police. They were subsequently arrested and taken to the Fremantle lock-up. I note that Dr Cunningham was denied medical assistance at that point, even though he requested it, required it and expected to get it explicitly. They were subsequently charged and there have been some very serious allegations surrounding the investigation of this entire matter. One of the most concerning issues that I have previously spoken about is the fact that video footage of the incident, which occurred in Fremantle, was seized by police and was subsequently lost—it was no longer there. It is maintained that this footage would have reinforced the position put by Dr Cunningham and Ms Atoms that there was no wrongdoing on their part and they were subject to excessive force.
This matter has been going on for 10 years without any satisfaction or resolution. We know that Dr Cunningham and Ms Atoms went on to successfully receive damages of over $1 million, as I recall, because of what they had been subjected to, and that is still subject to appeal. I understand that the grounds of appeal are that the state maintains that it is not liable for the cost of the damages because it was the police officers who engaged in wrongdoing, hence the police are individually liable for the cost of those damages, not the state. If it is indeed the case that the police are individually liable, as maintained by the state in the appeal, and this remains ongoing, that raises a very serious question. If it is the case that two of the three police officers who were involved in this particular matter, who the court found, after weighing up all the evidence available to it, had engaged in wrongdoing and used excessive force, it raises a very serious question about why disciplinary proceedings that would reflect the seriousness of this matter have not proceeded. It is very often the case, and never appropriate, that we hear about cases of excessive force being used by police in the heat of the moment. We obviously need to address that. But what makes this particular matter so incredibly distressing and appalling is that it was not simply excessive force that was used at the time, which in itself is inappropriate, but the fact that there has been quite a serious suggestion of deliberate tampering of the evidence by police, and that after these people had been subjected to excessive force, they were then subjected to malicious prosecution, even though they had not done anything wrong. To add insult to injury, the people in the police who had been left with the responsibility of undertaking the investigation about the original police conduct were themselves colleagues of the police involved in the matter. At no point would a reasonable person ever reach the conclusion that this matter has been satisfactorily dealt with.
As we talked about previously, the Parliamentary Inspector of the Corruption and Crime Commission has recommended that the CCC undertake an investigation, but it has declined to do so. I have said before that I find that inexplicable because if the CCC will not investigate the way police undertake their internal investigations, who on earth can? The answer is that nobody can. The CCC has the power to undertake this investigation. The committee has put forward this recommendation in its report titled, “Unfinished Business” because it is exactly that—10 years later, unfinished. The matter is still ongoing and the public cannot be satisfied that this has ever been dealt with appropriately, which leads people to have a significant loss of confidence in our system. I come back to recommendation 1 in the report that asks the Corruption and Crime Commission to recommend to the Commissioner of Police that the conduct of the police be reinvestigated.
Committee interrupted, pursuant to standing orders.
Sitting suspended from 4.15 to 4.30 pm
Resumed from an earlier stage of the sitting.
Hon ALISON XAMON: I was detailing the history of this extraordinarily unfortunate matter and the recommendations that have come from the Joint Standing Committee on the Corruption and Crime Commission. I reiterate the committee’s recommendation 2. For members’ interest, it 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] WADC 168.
The reason that recommendation is so significant is that we have an unusual situation in which two complainants have been successful in making their case to the court, and the court has independently determined, based on the evidence in front of it, that a great wrong has been committed against Dr Cunningham and Ms Atoms. The salient point here is that, as I have mentioned, there were some very damning findings from the court. As I was saying, it is one thing to talk about excessive force having been employed against innocent people in the heat of the moment, but it is an entirely different matter to talk about what can really only be construed as a cover-up following the use of that excessive force. In this instance, I find deeply disturbing the suggestion that video evidence of the incidents was confiscated and disposed of, as well as the fact that Dr Cunningham and Ms Atoms were subsequently charged, which can only be interpreted as being a pretty malicious act, and that any pretence of an internal investigation by the police can only be described as a mockery.
This will keep coming up because it has not gone away. It has been 10 years, and these two individuals, who have shown such strength and tenacity, and at great personal cost, I can imagine, have made a point of trying to get some sort of justice. I believe there is a huge public interest in this matter.
The CHAIR: The question is that the report be noted.
Hon ALISON XAMON: One of the things that we expect is that, when people have particular powers over ordinary people—in this case we are talking about the police—and those powers are misused, people are made accountable for that, not that the powers become further aggravation against innocent civilians. That is the social compact to which we all sign up, and to which we all agree.
As I have said before in this place, I find inexplicable the Corruption and Crime Commission’s decision not to investigate this matter. In the back of this report, “Unfinished Business”—which I strongly recommend members read, along with the original parliamentary inspector’s report into this matter, which makes very telling reading— we find the reiteration by the current commissioner that the CCC, despite all the evidence that has now been presented in the court, will not reinvestigate this matter. I cannot understand how that decision has been arrived at, particularly because two of the police officers involved are still working in the Police Force, and that concerns me greatly, without knowing that proper investigation and disciplinary proceedings have been employed. It means that people have to ask: if not in this case, then in which case? It is hard to fathom a case that could be more clear-cut. A strong light needs to be shed on what I see as clear failings within the police department itself in undertaking investigations. It is precisely when the police department fails to acquit its own internal investigative functions effectively that we expect the CCC, with all its extraordinary powers, to make a point of investigating these matters.
I note that the commissioner has described some of the commentary that has taken place in this chamber as trenchant in its view. That was an interesting choice of words. If, indeed, the commissioner is referring to my contributions, amongst others, he is indeed correct, because I cannot for the life of me understand how this decision has been arrived at.
Consideration of report postponed, pursuant to standing orders.
Progress reported and leave granted to sit again, pursuant to standing orders.