Joint Standing Committee on the Corruption and Crime Commission — Eighth Report —
“The More Things Change...: Matters arising from the Corruption and Crime Commission’s Report on Operation Aviemore: Major Crime Squad Investigation into the Unlawful Killing of Mr Joshua Warneke”
Resumed from 20 September.
Hon JIM CHOWN: I move —
That the report be noted.
Hon ALISON XAMON: I rise because I would like to make some comments on this report. For members who have not had an opportunity to read the eighth report, “The More Things Change...: Matters arising from the Corruption and Crime Commission’s Report on Operation Aviemore: Major Crime Squad Investigation into the Unlawful Killing of Mr Joshua Warneke”, this has arisen because the Joint Standing Committee on the Corruption and Crime Commission undertook some hearings and has some additional reflections following the CCC’s report into what happened after Operation Aviemore. To refresh people’s memories, Operation Aviemore was the CCC investigation that looked at the circumstances around the investigation into the murder of Joshua Warneke and the subsequent conviction of Mr Gene Gibson. As members are probably aware, that conviction was subsequently overturned because very serious irregularities were found in the way the investigations had been undertaken. A year after tabling its initial report, the CCC conducted further inquiries into the progress of the recommendations that arose from that report. The Joint Standing Committee on the Corruption and Crime Commission then looked further into how those recommendations had been progressed.
It would be fair to say that the report highlights that people should still be quite concerned about what is happening within our state, particularly our remote areas, in the administration of justice and engagement with Aboriginal people in particular. I point out to members that Operation Aviemore particularly focused on the inadequacies of investigative techniques around language. A lot of recommendations came out of that. Members may recall that one of the issues identified in the Gene Gibson interviews was that English was his second, if not his third, language. There were genuine issues with his capacity to understand the line of questioning that was levelled at him about the murder of Josh Warneke. Another element that raised deep concerns was the lack of cultural understanding about how Aboriginal people often respond to interrogation techniques and how problematic that can be when looking at confessions and the like.
One of the things that was looked at was a tendency, for example, for a lot of Aboriginal people, particularly those who live on the lands and have limited engagement with white culture, to agree with figures of authority without regard to the fact that they are responding in an environment in which they are expected to give information. In this instance, one of the problems identified was that Gene Gibson had a tendency to nod and say yes and agree, regardless of whether he understood what was being asked or the implications that arose from that. There is an entrenched cultural response from a lot of Aboriginal people to agree with people they view as being in authority. That was identified as a clear issue and a cultural concern about the way interrogations and investigations are undertaken and how we need to look at a totally different approach to investigation techniques, particularly for Aboriginal people.
A third concern that was given reference in Operation Aviemore but was not seen to be one of the core issues, but is one that I have a particular interest in, was the recognition fairly late in the piece that Gene Gibson most likely has a cognitive impairment, potentially, foetal alcohol spectrum disorder. As someone who may be deemed to be a mentally impaired accused person, how do people like him respond during interrogation and how do we need to do better in that regard?
Unfortunately, this state has a history of miscarriage of justice when it comes to mentally impaired accused people. Anyone who was in here the last time I was in Parliament will remember that I spoke long and hard about Mr Marlon Noble’s case, who was detained under the Criminal Law (Mentally Impaired Accused) Act for 10 years without ever having the opportunity to have his charges tested in court. Of course, those charges were subsequently dropped and Mr Noble was released and now lives successfully within the community. However, he is not entitled to any sort of compensation because, despite being in prison for 10 years, he was never convicted and therefore he is not entitled to any sort of compensation. That case highlighted how poorly we deal with mentally impaired accused people. When the issue of Gene Gibson gained public prominence, I confess to feeling chills because it felt a little bit like it was happening all over again. These are not isolated cases. There are other cases, but I think it is fair to say that the cases of Marlon Noble and Gene Gibson are probably the two most prominent cases in this state.
One of the things this report has looked at is: where are we now, so many years down the track, dealing with Aboriginal people who have either been accused of or are being investigated for crimes? We have found that although there has been some progress, unfortunately, the police have a long way to go. There is a genuine risk here because, as long as we are not improving our practices, there is always a serious risk that further miscarriages of justice will unfold. I can tell members that when we are talking about miscarriages of justice, we are not talking about just a miscarriage of justice against a person who may have been wrongfully convicted or charged. I think one of the devastating tragedies about the Joshua Warneke case is that while a man languished in jail for a crime he was subsequently found not to have committed, the real killer of Joshua Warneke has been walking around Broome or somewhere else this whole time. Justice has not been served for Joshua Warneke and his mother, who has been an absolute stalwart in her campaign to ensure that justice is finally served for her precious, precious son. I remind members that when we talk about miscarriages of justice, there are broad-ranging effects when we get it wrong. That is something of which we need to be very mindful.
A series of findings come from the report. The Corruption and Crime Commission, as I mentioned, exposed systemic issues in the way Western Australian police officers interact with Aboriginal people. Specifically, there are concerns about aspects of the investigative policies utilised by the major crime squad.
The CHAIR: Hon Alison Xamon.
Hon ALISON XAMON: That was finding 1. In finding 2, the Corruption and Crime Commission made arange of recommendations to the WesternAustralia Police Force to address the issue identified in the way that Western Australian police interact with Aboriginal people. Disturbingly, finding 3 states that two recommendations from the Corruption and Crime Commission’s 2015 “Report on Operation Aviemore: Major Crime Squad Investigation into the Unlawful Killing of Mr Joshua Warneke” have even now not been adequately addressed by the Western Australia Police Force. Finding 4 states that not enough time is dedicated to cultural diversity training for recruits during the 28-week program at the Western Australian police academy.
One of the report’s recommendations is that the Western Australia Police Force should routinely work with local groups and Aboriginal elders when inducting regionally and remotely stationed officers because the committee found that far too often, police officers with limited cultural training have been placed in complex regional environments, which is an unenviable task, where they are expected to maintain order and undertake investigations of crime or disturbances. Those communities may have ways of operating, dealing and communicating that are quite different from what we are used to. It is of concern that we put someone with relatively little experience into a remote environment in which there are language challenges and different cultural understandings. It is also a problem if they are dealing with people who have a cognitive or intellectual impairment that is not easily recognised. I point out that that challenge is fraught for police officers when dealing with the issue of cognitive and intellectual impairment anywhere in Western Australia. It is difficult to get a diagnosis. It is an enormous challenge to get FASD diagnosed, for example. It is particularly aggravated in situations in which there are language and cultural differences. Nevertheless, it is an issue that the police need to be mindful of, particularly those from the major crime squad who are very much at the pointy end of undertaking investigations and interrogations.
One thing that we should be doing better is supporting our police officers when they are placed in large Aboriginal environments to ensure they receive the full suite of ongoing supports that they require. This will be a particular challenge in the Kimberley and areas of the Pilbara where there is a range of languages, many of which are very poorly recorded. There will be genuine challenges with issues of interpretation and access to interpreters. Nevertheless, if we are serious about ensuring that we deliver justice and get law enforcement right—this is a big state and it is a big state with a great variety of people—we need to ensure that we better invest in this area. Quite frankly, the committee found that we are not doing that well.
The committee welcomed the increased focus by the Western Australia Police Force on the issue of cognitive impairment and its implications for compliance with the Criminal Investigation Act 2006. Frankly, we could not have been much worse at it. We started from a pretty low bar, but it is absolutely essential that we recognise how differently we need to approach the issue of cognitive impairment and address how we deal with the issue of identification and diagnoses and how we work with people who are intellectually or cognitively impaired to ensure that we gain accurate information so that those people have the opportunity to defend themselves and ensure that justice is being done. These issues have always been a challenge, but now they are finally being understood, and there is growing expertise. I point, particularly, to the marvellous work that is being done by Telethon Kids Institute on the issue of FASD. It has been doing some phenomenal work at Banksia Hill Detention Centre. I hope that it receives more funding so that it can move into the next phase of its research, which it is very keen to do. It has looked heavily at not only the issue of diagnosis, but also the appropriate interventions to better work with those people who may or may not be engaging in offending behaviours and deal with issues of cognitive impairment. In part, recommendation 2 reads —
Given this, the Western Australia police force need to prioritise internal policies and increase training of frontline officers in order to keep in step with ongoing developments.
I recognise that we have some pretty tough asks of our police force. We expect them to be culturally aware of Aboriginal people in the area of language and we need to ensure that they have an awareness of cognitive and intellectual disability. I am also aware—I am one of the first people in this place who will keep talking about this— that it is critical that police have a good understanding of how to respond to people with mental health issues or who are experiencing mental health distress. We have an expectation of our police that they have a comprehensive understanding of the various different cultural approaches in all the culturally and linguistically diverse communities in Western Australia. Of course, we also expect that our police force will be sensitive to the unique needs of lesbian, gay, bisexual, transgender, intersex, queer Australians. We recently spoke about the fine recommendations from the report on elder abuse, one of which is that we provide better education for our police force on the implications of elder abuse, as well as domestic violence and all the areas in which we want our police to have a better view. I recognise that there are hugely competing demands in the provision of training in our police, which is in addition to ensuring that they have all the necessary training to best do their job, such as the physical, legal and paperwork requirements. I absolutely get that that is a huge ask of our police force. I would have thought, at the very least, that when we talk about sending police to particular areas to undertake their job, that they are extensively equipped with the necessary knowledge to best do their job within whatever community they have been sent to.
It is very clear from the initial Aviemore report, the subsequent report from the Corruption and Crime Commission and now the report of the Joint Standing Committee on the Corruption and Crime Commission that we are still not there. We still have not progressed far enough to ensure that we are doing the job around issues of culturally appropriate law enforcement, particularly in remote regions. It was found that the WA Police Force has progressed a range of initiatives to improve cultural awareness training to police officers, but, as I said, so much more still needs to be done to ensure that the training is improved for dealing with vulnerable people.
Recommendation 3 was that the WA Police Force commit the time and resources necessary to the ongoing education and training of police officers in cultural awareness.
The CHAIR: Hon Alison Xamon.
Hon ALISON XAMON: As I have said already, the sheer number of Aboriginal language groups, particularly in the Kimberley, remains an ongoing challenge for law enforcement. It is an ongoing challenge for all services. I know that mental health services, alcohol and other drug services and suicide prevention services in particular also face exactly the same challenges. When we are talking about the administration of justice, we have to be precise. We need to know that the information we are collecting is accurate and will be fairly administered in any ensuing court proceedings. This is a huge challenge, but I believe we have an obligation to rise to it. It was noted that the police force is progressing the implementation of prerecorded cautions in 20 Aboriginal languages, which is an important first step. It certainly would have helped Gene Gibson; that is what was found.
There have been real challenges in doing that, partly because any issue of translation of languages into formal legal processes is difficult. I know this from when I was working as a lawyer with refugees. I was working with people who did not speak a word of English, but we were undertaking legal processes. We cannot ask just anyone to come along and do that interpreting for us, because it is precise work, and we have to make sure that the client genuinely understands what we are asking them and, importantly, that whatever information they are giving us is absolutely legally correct. We are talking about legal processes in which there is no room for interpretation or being a little bit woolly on the facts. We have to be clear. I recognise that it is a huge challenge to try to ensure that those interpreter services are being accurately provided, and to find the expertise from people who can do that. Nevertheless, this has been going on for quite a few years and it is about time we ensured that it is given priority. It will have to be progressed sooner rather than later.
One of the concerns was that no time frames have been allocated to ensure the completion of this work. It is my sincere hope that I will not be standing here in two years’ time saying that we have still not progressed any of this. It should have been done by now, and it is problematic that it has not been done to date. It is an ongoing issue of concern to both the CCC and the joint standing committee, and I want to continue to pursue it to make sure that we get progress on it. I was pleased to note that the Corruption and Crime Commission has indicated that, in its public hearings, it will be engaging in ongoing monitoring of the recommendations that arose from Operation Aviemore. It is really good that these issues are not going to fall off the agenda.
I also note finding 12, that the police force is progressing the implementation of an information technology solution known as the automated interview plan. That will potentially allow an interviewing officer to fill in minimal information and identify the potential vulnerabilities of a witness. The AIP generates an interview plan with specific attention to the needs and vulnerabilities of the person being interviewed. This is potentially a bit of groundbreaking work. I applaud the police force for initiating this, and look forward to, hopefully, receiving a further briefing at some point in the future about how it has been implemented and what it actually looks like. Those sorts of reforms are really critical for the administration of justice. I suggest to any member who has a particular interest, as I do, in the area of the administration of justice, particularly around vulnerable people, Aborigines or mentally impaired accused, that the eighth report of the Joint Standing Committee on the Corruption and Crime Commission is particularly important. It shows that although we are starting to make some slow progress in these areas—it has been quite a number of years—we are still quite far away from getting there. It is good that the CCC decided to prioritise this report and to follow it up.
Personally, I think that the CCC report on Operation Aviemore is one of the most important investigations it has undertaken. I know that a lot of publicity has been given to a lot of the other reports that the CCC has undertaken. Most notably, in recent times we have seen the very public reports into corruption in public sector procurement, in the North Metropolitan Health Service and in Horizon Power. However, issues of human rights, which is what this report is about, are really core business, and I am glad that this is receiving attention. I think, 10 years ago, people really did not care what was happening when there were miscarriages of justice to some Aboriginal bloke who did not speak English and was potentially a mentally impaired accused. I hope that we are starting to see a change of attitude in this space, but even if it turns out that people do not care about the Gene Gibsons or the Marlon Nobles of this world, maybe their hearts will be moved by a concern about a miscarriage of justice against Mr Joshua Warneke and his family. This is something that we should all be concerned about. I suggest that members may want to look at this report, and we should keep revisiting this issue as a Council.
[Speeches and comments from various members]
Consideration of report adjourned, pursuant to standing orders.
Progress reported and leave granted to sit again, pursuant to standing orders.