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Legislative Council - Fifty-First Parliament, Third Session (51-3)
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CRIMINAL INVESTIGATION (COVERT OPERATIONS) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 25 November 2008. Page 816.)

The Hon. A. BRESSINGTON (16:18): This bill states that it seeks to investigate 'serious criminal behaviour', which includes any indictable offence. Yet it seems to me that this bill is contrary to the purpose of detecting more serious and elaborate forms of organised crime—which may involve attempts to commit or cover up murder, fraud or corruption—that ordinary police powers may not be able to detect or eradicate.

History and countless case studies show that when crime spreads to that level of intricacy it is not unusual to find high-level involvement and either government officials or employees being directly or indirectly implicated. In fact, allegations of official corruption within the state government were summarised in a Sydney Morning Herald article titled 'Justice Phillips…won't admit the agency's crime-busting record is poor', written by Ben Hills and dated 9 March 1991. The article stated:

The whiff of corruption had been hanging over the state governments since media reports in the early 1980s. In 1981, 60 Minutes carried a program called 'The unhappy hooker '. The ABC had several bites at the story, featuring the usual anonymous backlit whores claiming they had videotaped their clients in compromising positions. In 1988 Chris Masters…gave the story his imprimatur with a documentary Suppression City.

Finally, with Attorney-General Sumner identifying himself as the person who was being smeared in the media and collapsing with a nervous breakdown, the SA government in February 1989 asked the NCA to see whether there was any truth in claims that 'senior public officials, including politicians, are reluctant to tackle the issue of public corruption because they are being blackmailed'.

It goes on to say:

And so, while drug barons and corporate crooks had a field day, laundering 'hundreds of millions of dollars' in ill-gotten gains (according to former royal commissioner Mr Frank Costigan QC), South Australia's finest were snooping around such salubrious establishments as Bluebeard's and the Sportsman's Leisure Club, interviewing pimps and prostitutes given Greek…[aliases]…such as Andromeda, Hades, Daphne and Calliope. There was even one called Stormy Summers, which she said was her real name.

Statistically it was a staggering exercise…6,000 computer entries were checked, 1,300 files of documents, 313 people were interviewed, and 88 interrogated in what has been described as the NCA's Star Chamber…former Attorney General Chris Sumner was grilled over a gulag-like 14-hour period.

At the end of the day, the only charges to be laid will be one against a witness who refused to give evidence, and another involving a completely unrelated extortion attempt. Even the NCA conceded that it was hardly its greatest triumph. 'In retrospect, we would have to say that the entire investigation was an unfortunate diversion of investigative resources away from the NCA's true role, that is, combating organised crime…' concluded the hugely entertaining 191-page report tabled in parliament on Tuesday by a relieved-looking Premier John Bannon.

The report goes on to say:

While the scrapping…between the NCA's chief of the South Australian branch, Gerard Dempsey, and the chief investigator of Victorian branch's Carl Mengler was going on, the NCA was supposed to be concentrating on the most expensive and extensive investigation in its seven-year history—an investigation that would cost more than the one that put the notorious Abe Saffron in jail for tax fraud, and take longer than the extradition and imprisonment of the heroin smuggler Bruce 'Snapper' Cornwall…it took…two years and over $4 million…and…had consumed 'all available resources' of one of the three branches of Australia's FBI. Crimes involving drugs, corporate fraud and other national priorities were pushed onto the backburner while teams of lawyers, accountants and investigators explored the seamy underside of Adelaide's low-life…With two exceptions (Cornwall and Saffron), the NCA appears to have been hitting middle- and lower-level crime that would have been well within the scope of local forces.

It further goes on to say:

In November 1988, the SA Deputy Premier Don Hopgood, in great secrecy, signed the reference authorising the NCA to investigate 'bribery or corruption of or by police officers…illegal gambling, extortion and prostitution…drug trafficking…murder and attempted murder'. All told, a list of 56 people, including a number of police officers and public servants, was attached to the reference as named targets.

To give credit on one of the rare occasions when it is due, this operation did lead to the conviction of one corrupt officer, the former head of the Drug Squad, Detective Inspector Barry Moyse, jailed for 20 years for his involvement in large-scale marijuana growing and trafficking. But, was Moyse acting alone or was he part of a corrupt cabal that had infiltrated the South Australian police? This was a question that led to the NCA launching another of its colourfully named investigations, Operation Ark—an operation that would split the NCA into bitterly opposed camps, destroy the reputations of long-serving police and lead to a state of total warfare between the Adelaide branch of the NCA and the local police force.

Operation Ark was the sequel to Operation Noah, the annual anonymous telethon in which police appealed to the public for information about drugs. In March 1989, among the 1,000-odd calls, were a number that should have set off alarms bells all over police headquarters—calls that identified no fewer than 13 South Australian police alleged to be dealing in drugs or protecting dealers. These reports were never passed on to the Police Commissioner, David Hunt, who in his fury first heard about them a month later on the radio. Nor were they properly investigated by police—a leaked copy of the NCA's top secret report quotes an assistant commissioner of the South Australian police as saying, 'The public could be forgiven for thinking it is Disneyland.

If the SA Police investigation was Disneyland, the script unfolding within the NCA's offices in Melbourne and Adelaide was Monty Python. The report on Operation Ark was to be the last hurrah for the NCA's inaugural chairman, Justice Donald Stewart, who was retiring mid year after five years in the job.

One would expect that in most cases high level crime warranting covert powers ought to be referred to organisations such as the National Crime Authority, the Australian Federal Police or anti-crime and corruption authorities, but this experience is a fair demonstration of how precious resources are likely to be diverted by state police once given broader powers to allegedly investigate serious crime.

The cases of corrupt drug squad officer Barry Moyse and paedophile magistrate Peter Liddy are just two that are relatively indicative of the points I wish to make. We should not forget that Moyse was a detective inspector with the drug squad and head of Operation Noah, while Liddy used to be the chairman of the Police Disciplinary Tribunal, no less. Both these cases were solved and successfully brought to conviction without the need for additional covert powers by state police, and it seems that if police were empowered to walk the beat, patrol our communities and once again become the genuine police force they used to be, as opposed to a police service which they have become, we might root out much more crime without the need to resort to these superfluous measures.

Moyse was charged and convicted on the basis of intelligence gathered by the NCA, following the evidence of drug dealer George Octapodellis, who by that time had come to the attention of the NCA. By contrast, I am advised that the investigation into Liddy arose as a result of the complaints made to many authorities, including police, dating as far back as the 1970s and 1980s. The young man who ultimately brought Liddy to justice was featured in an episode of Today Tonight telling how Liddy was caught. The program was aired immediately after he was convicted.

The victim in question tried for years to get the police to act, but of course he was just one person complaining about the actions of a magistrate, with no objective proof that these things had happened. The victim alleged he was attacked and warned off making further allegations. He believes his attackers were police or former police who supported Liddy. In 1982, the statute of limitations was also in place, which meant that crimes against him were outside the limit. On another occasion the victim was told by police to simply forget it and 'We don't have a unit that handles that kind of offence against males'.

In desperation, the victim's father, fearing his son would harm himself, put out an anonymous press release in 1997-98 detailing the crimes and embarrassing the police into action. When the police visited the young man in Queensland, he could only supply them with nicknames of other boys, as that was the way life saving club members knew each other. Eventually the police traced others who were by then also in their 20s, and they told similar stories. One young man of whom Liddy was particularly fond was offered a bribe by Liddy not to give evidence, and it was that action by Liddy that was his real undoing, convincing the police he did have something to hide after attempting to interfere with a witness.

It seems a simple matter of fact that, had the police taken the same measures of investigation earlier and with the additional covert powers of investigation, Liddy would have been convicted earlier. What is also possible is that, had the investigation been conducted earlier using fresher evidence than some two or three decades later, other police could also have been implicated and faced charges, but perhaps we will never know that.

I have problems with this bill for the main reason that it argues a very strong case for an ICAC, the very thing this government has denied South Australians. Instead, it seeks to place the powers of an ICAC into the hands of police, whilst we see abundant evidence of police refusing to use existing law enforcement powers to combat crime, fraud and corruption, and even in other more extreme cases perhaps abusing powers they in fact do not have or ought never to have had.

Given South Australia's dubious history in uncovering high-level organised or official wrongdoing, one can be relatively safe in the knowledge that this bill will be in no way an adequate substitute for an ICAC. Moreover, it would appear that this bill would have the potential to render corrupt or dishonest conduct by police lawful so long as it can be retrospectively rubber stamped and explained as being in the course of some official covert operation.

First, it is deeply disappointing that we are introducing a bill that aims to give police additional covert powers but not at the same time seeking to give our anti-corruption branch the broader powers to investigate private bodies or individuals, such as private corporations and gangs, and that is a significant omission. Another massive omission is failing to give security guards broader powers to apprehend and detain when police presence is required, but clearly not made available to the general public. I will come back to this concern later.

All the police have to do to detect crime is do what they ought to be doing, that is, enforcing the law and using their existing powers to their fullest extent, but in a proper and lawful manner. Had state police acted more diligently, the charges and subsequent convictions in both the Moyse and Liddy matters would have been secured in any event by lawfully using the Commissioner's current powers to make orders under section 11 of the Police Act 1998, without any of the risks associated with common law.

It is a concern that the bill is not much more prescriptive about what it seeks to accomplish when it gives the broader powers to police, so that those powers cannot be over-used and police resources wasted. I say this in the context of allegations made by many injured workers of abuses of power by WorkCover investigation and fraud officers and surveillance operators, many of whom are ex-police officers. The experience of Mr Tom Easling at the hands of the Special Investigations Unit of Families SA, which had also recruited ex-police as investigators, is another example of where it is suggested that well-trained and experienced former police officers have abused their powers of investigation. That these officers were not in the employ of SA Police at the time of the allegations should serve as little comfort to South Australians, given that they are still public servants bound by law, policy and procedure.

In this bill, the words 'drugs', 'murder', 'sexual abuse', 'gangs', 'organised crime' and 'corruption' are not explicitly used at all and 'fraud' is used only once. So, it begs the question: for what purpose are these unconditional, covert powers being given to the police when the current Police Act already enables extensive powers to be delegated by the Commissioner under section 11, which provides for the issuing of orders by the Commissioner? It also begs the question: how can the people of South Australia be assured that the powers given will not result in a waste of public resources investigating minor indictable offences as opposed to serious indictable offences?

Some examples of serious crimes which could include minor indictable offences under this bill are: theft and receiving; deception; serious criminal trespass; illegal abuse/interference with a motor vehicle; aggravated assault causing harm; indecent assault; causing harm; stalking; gross indecency; and property damage.

Some may recall the post-NCA investigations of 1989 and the formation of Operation Hygiene, where the South Australian Police Commissioner asked members of the public to supply any information they had about police corruption. That 'uncovered' a few ridiculous offences by police, which were as trivial as stealing pot plants and cheating on their time sheets. I do not know to what extent the public would want police investigating these offences whilst we have graffiti gangs and child sex offenders on the loose and when resources are so finite that the ordinary victim of an unfolding home invasion cannot get a police patrol car to come out in the middle of the night.

In the end, Operation Hygiene did result in two police officers (Malcolm Pearn and Stephen John Fuller) being found guilty of being an accessory after the fact of shop breaking, which, incidentally, was carried out by another two police officers. Their sentences carried less than a three-year gaol term. It is important to note that a website on state government corruption discloses that Tony Grosser had made disclosures of police corruption to Operation Hygiene before the siege in the Barossa. I have also been made aware that we are now coming up to the 15-year anniversary of the National Crime Authority bombing in which Detective Geoffrey Bowen was killed, a crime with which no-one has been charged.

On 6 October 1993, then Liberal member for Davenport moved a motion for an independent inquiry into Operation Hygiene. Whilst not defending the actions of the convicted officers, the member did raise concerns that the offenders' actions were carried out in 1986, some six years prior to their being charged. The main area of concern, amongst other things, was that Operation Hygiene failed to uncover more substantial and more recent evidence of police and other official corruption and failed to bring to justice two other crooked cops who had actually committed the original crimes, for which their two fellow officers (Fuller and Pearn) were convicted.

Significantly, the member for Davenport also suggested that police had destroyed vital evidence which may have proven Fuller's and/or Pearn's innocence, as in the case of the Keough and other similar cases highlighted by Dr Bob Moles in the book A State of Injustice.

On 10 April 1980, Colin Creed had held up a branch of the Savings Bank of South Australia. On 20 April 1981, he raped a woman at gunpoint after breaking into her home. The next day, he repeated his heinous crime with another victim. On 5 May 1981, Creed held up another bank. He was suspected of the September 1979 murder of 20 year old Ann Roberts, but he would not be brought to justice following his last sighting on 21 May 1981 until he was finally arrested in September 1983 after being spotted in Western Australia by another South Australian police officer.

Whilst details of the specifics behind Creed's arrest and conviction are difficult to find more than 20 years later, there appears to be no reference to his case in Hansard, other than a brief reference in passing by the member for Playford in the other place on 6 July 1995. He articulated in a somewhat comical fashion the ineptitude of the police investigations at the time of Creed's offences. He explained that some 15 years earlier he had cause to visit a brothel in Unley after one of the brothel workers came into the restaurant across the road, where the member was working for a friend. He said:

On that night, two girls came running into the restaurant. One had been sliced badly with what I thought was probably a Stanley knife. I said that we had better call the police, but they did not want the police to be called. I said, 'You've been stabbed; you have to call the police.' So I rang the police. There was a bit of reluctance when I said that it was Abigails on Unley Road—I even remembered the name. Eventually I said, 'I think you'd better get out there because someone's been stabbed.'

Police cars converged from both sides. I clearly remember the man who had allegedly done this act coming out of the place wearing a leather coat. He got into a Ford Falcon and drove off. I took down the number on the registration plate. For some time thereafter the police managed to lose that number. In fact, they came back to me on three or four occasions, including three weeks later, and said, 'We think you have the wrong number.' I said, 'You can think what you like, but that is the number.'

Exactly 12 months later, they rang me again. 'We are closing in on this bloke.' I said, 'It's about time.' They said, 'He has a very plausible story.' I said, 'How plausible is it?' They said, 'You'll find out tomorrow when we arrest him.' They did not arrest him the next day: his name was Colin Creed, and he disappeared. He disappeared for some years. In fact, he committed another murder after that incident although, as I understand it, the police did not manage to pursue that matter competently, and Mr Creed is now in gaol on lesser offences.

It is my belief that the best indication of the future is the past and, if nothing changes, nothing changes. On the basis of the member for Playford's evidence, it appears that there were many points in the Creed case chain of events at which a much speedier arrest and conviction could have resulted using the powers and resources already afforded the police, but competent and diligent policing did not take place. Over the past two years, I have given many examples of government failings, where official authority has been abused or, conversely, not applied properly at all.

The bill claims to target gangs, but the powers given are potentially very dangerous without an ICAC or other higher body to regulate it in collaboration with the Commissioner of Police. In fact, the briefing on the bill makes a strong case for an ICAC, but it subverts the argument to suggest that our state police can now do what an ICAC would do anyway; however, we know that this is simply not the case.

Moreover, there has been an abundance written in and reported across the media about the exorbitant waste of public resources by the National Crime Authority for almost no outcome by way of significant convictions, and this raises serious questions about the effectiveness of this body to combat crime and corruption. In fact, if we are to give police additional powers to detect crime, we must not enable any police officer of any rank or any part of the police force to exercise powers that may be delegated by the Police Commissioner or other high-ranking official; rather, we must ensure that any such extreme authority cannot be abused and that, when it is, such an authority can be publicly called to account—and I emphasise the word 'publicly'.

There would be a stipulation that those powers could be used only under the direction and employ of perhaps three or four discrete branches of the police, namely, the Fraud Squad, Anti-Corruption, Homicide and the Drug Squad. One of my staff was employed previously by the investigations section of Customs and had worked for another national crime-fighting body. I am advised that at no time could delegated powers of criminal investigation and covert operations ever be delegated to other teams, subordinate branches and/or staff of other parts of the Customs service—for example, through to the invoice room, registry, quarantine or excise, to name a few.

Whilst cooperation from other teams may at times be required, the superior powers could not be exercised by those officers outside the investigation unit. Additional staff needed to investigate an alleged criminal activity would, instead, be directly recruited into the investigation section for the specific purpose of the investigation. Once the task was completed, that officer would be returned to their substantive position. Accordingly, if we are to give additional powers to the police, only the Anti-Corruption, Homicide, Fraud Squad and Drug Squad branches should be able to use these powers, not every other level of police.

Just a few weeks ago, I was approached again by a security organisation with a request for assistance. The manager of the company wrote, as follows:

I would like to inform you that my Patrolman on 15/1/09 around about just after 1900hrs had a problem at a client's premises this evening. A major brawl had broken out at Liquorland car-park at the Paralowie shops because a member of the public had approached my Patrolman for assistance.

My Patrolman had contacted base by the 2-way radio requesting police assistance urgently and that the Patrolman could not call Police because he was trying to assist with the problem because a member of the public asked for help that my guy could not refuse.

I had then contacted Police Communications to get a Police Patrol to attend and the operator had told me that the Patrolman should contact them himself so they can get the correct information.

I then contacted our Patrolman to let him know that he has to contact Police [whilst in the middle of a brawl].

My Patrolman was not very happy about it and told me not to worry about it. I had responded back to the Patrolman stating if it gets too out of hand give me a call and I will come and give you back-up because the Police won't attend due to my Patrolman not making the call [himself].

This security company has written to me on numerous occasions. It patrols many areas at Elizabeth, Munno Para and Smithfield. I know of at least 10 situations where they have called police urgently for assistance and have sometimes had to wait for up to 1½ to two hours. These patrolmen do not have the power to detain offenders, and they are moving targets for these guys. A number of times, security guys from this agency have had full cans of Coke hurled at them and had their heads split and their eyes hit.

We are now looking at giving police more powers—not more resources or police—but we still refuse to look at increasing the powers for security agents so that they can merely protect themselves and take whatever steps are necessary to protect the general public.

This is one of countless similar examples where police have the powers, if not the resources, to protect the public. Had there been a prompt police presence, one might well wonder what kind of result they could have obtained. What persons could have been questioned, arrested or charged? One is also left to wonder whether any drugs or firearms might have been found or persons on outstanding warrants apprehended.

In this case, additional covert powers were not required to solve what may have been evidence of gang-related activity in the suburbs. All that was required was police presence. In any event, the fact that no police attended the incident on this night now means that no-one will ever know whether there was any criminal or gang-related violence requiring intervention or further policing.

A few months earlier, a person under the heavy influence of illicit drugs attempted to break into the home of one of my staff whilst she and two children were still inside. She, too, could not readily get a police patrol, despite calling 000, until she made such an issue of it that three officers and two cars were compelled to attend her property—15 minutes after several members of her family in the nearby area came to her aid and apprehended the offender.

The next day, the offender's keys were found at her property, but the police would not even come out to collect the material evidence linking the offender to her property. When she threatened to deliver the keys to the Commissioner himself and bring in the media, a patrol swiftly arrived to collect the valuable evidence. She did this after two earlier incidents in which she received little or no cooperation from police to have crimes against her property and a family member reported and investigated and had been told to find her own evidence linking the offender to the crimes against her property.

In each of the three cases the offenders were known to the police and the offences were not in dispute. In each, the excuse used by police for not exercising their authority was allegedly the remote prospects of securing convictions—a poor excuse by police that cannot justify failing to gather and collate information which is obtainable anyway. If the public attempting to phone the Family Violence Unit of the Elizabeth police station were not left holding on a line for over 82 minutes or if the public were not unable to make a report of the a crime at the Salisbury police station because there were not enough staff this bill would be much less problematic. In closing, I do support the bill but I feel it necessary to voice my concern that it would do precious little to combat serious organised crime.

Debate adjourned on motion of Hon. J.M. Gazzola.

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