Joint Standing Committee on the Corruption and Crime Commission — Seventh Report —
“Unfinished business: The Corruption and Crime Commission’s response
to the Committee’s report on Dr Cunningham and Ms Atoms” — Motion
Resumed from 21 November on the following motion moved by Hon Alison Xamon —
That the report be noted.
Hon ALISON XAMON: After several months of needing to defer consideration of this report because, as members would be aware, this matter was before the courts and subject to appeal, and we were awaiting a final decision, finally, last Friday, we had a decision on the matter. We can be very pleased that the decision has finally come down, although, as I will explain to members, this does not mean that the legal process is finished for Catherine Atoms and Robert Cunningham. I will speak a little about that because, unfortunately, as the Joint Standing Committee on the Corruption and Crime Commission report “Unfinished business: The Corruption and Crime Commission’s response to the Committee’s report on Dr Cunningham and Ms Atoms” articulates, the issues that arose as a result of the incident that occurred on the night that Ms Atoms and Dr Cunningham were wrongfully tasered and everything that flowed from that have still not been adequately addressed.
I will briefly refresh members’ memories of how we got to this point, because this is a really important issue that should be of grave concern to every member in this place and, indeed, anyone who is concerned about what can happen to people when our processes go wrong. “Unfinished business: The Corruption and Crime Commission’s response to the Committee’s report on Dr Cunningham and Ms Atoms” followed a response to the parliamentary inspector’s report on a complaint by Dr Robert Cunningham and Ms Catherine Atoms. Months ago, when we began to debate this matter, Hon Adele Farina went comprehensively through the history of the decade of struggle that Ms Atoms and Dr Cunningham have faced in trying to get some form of justice for what happened to them. She did that extremely well. In summary, 10 years ago Ms Atoms and Dr Cunningham were travelling through Fremantle in the evening. They stopped to help someone who had fallen into some bushes. The police came along. Effectively, both of them were wrongfully tasered, but it did not stop there. After that, they were erroneously charged by the police. A series of concerns has been raised since then about missing evidence. They ended up having to take civil action to try to get some sort of justice for what happened to them. Unfortunately, they have hit nothing but brick walls when it has come to the activity of our bodies that have the power and responsibility for independent oversight when wrongdoing or, indeed, corruption is involved. In this case, they have been let down bitterly, not only by the first iteration of attempting to have the issue reviewed by the local police, but also then by the internal police review. Of course, they have also been unsuccessful in getting the Corruption and Crime Commission to agree to oversight what happened with their case.
As I have said before, I think this is a disgraceful travesty of justice. Every time I go through the detail of what happened to Dr Cunningham and Ms Atoms, I am horrified that this still has not been resolved. I remind members that two of the three police officers are still working in the police force, and I think that is wrong. It is appalling that these people have not been able to have genuine justice. I absolutely want to say to Catherine Atoms and Robert Cunningham: I think you are amazing. I think you have shown profound resilience and courage. I recognise that your lives have in many ways been torn apart and that you have suffered great damage and pain as a result of your experiences over the last 10 years. As Ms Atoms has had to particularly outline in court, she has been unable to work since the incident. This is a woman who is professional and qualified, yet the impact of not simply the incident of that night but also everything that has flowed from then has been so detrimental to her that it has absolutely coloured her life. Likewise, speaking particularly to Ms Atoms and Dr Cunningham, I am conscious that they have lost friends and have been put under great strain. People simply have not understood the degree of injustice that has been wrought upon them. I say to them: I am so sorry that this has happened to you. I am sorry that you have been failed. I am so sorry that our systems have failed you. It is important for any of us who are aware of what has happened to this couple to make sure that we speak up and continue to try to make sure that justice is finally given.
I would like to read into Parliament—I am also happy to table it if members request—the media release put out by Catherine Atoms and Robert Cunningham last Friday, following the decision by the appeal court to uphold their damages payment. They say —
The matter related to a couple tasered in Fremantle arose again today in the WA Supreme Court of Appeal.
In November 2008 Dr Cunningham and Ms Atoms stopped to help a stranger who had fallen into a hedge outside a Fremantle hotel, when they were grabbed and handcuffed by police who tasered them before taking them to Fremantle police station.
Serious allegations were made against police of excessive use of force, intimidation of a witness, collusion in evidence, failure to disclose, and tampering with evidence.
Parliamentary Inspectors of the Corruption and Crime Commission (CCC) have criticised internal police investigations as demonstrably flawed.
The Parliamentary Inspector of the CCC also suggested that the CCC largely failed in its core oversight function with respect to serious misconduct.
As part of an ongoing Parliamentary Inquiry Catherine Atoms and husband Professor Robert Cunningham were commended for their tenacity and perseverance in drawing attention to incidents of serious misconduct.
In 2016 the couple concluded civil action after an 18-day trial against the State of Western Australia for battery, assault, false imprisonment, malicious prosecution and misfeasance in public office.
Finding in favour of the couple, District Court Judge Davis determined that the nature of the police officers’ conduct was unlawful, and awarded general, aggravated and exemplary damages, along with a special costs order.
Today the Supreme Court of Appeal upheld this ruling.
In a statement outside the Supreme Court today Ms Atoms said:
Today’s decision will motivate the State to correct their institutional responses for allegations of serious misconduct.
We should focus on building communities and keeping harmless people out of reach of the criminal justice system.
For the social and economic benefits, I support the State to adopt a justice reinvestment strategy.
Professor Cunningham noted: “It will remain a costly exercise and a great concern to Western Australian citizens if the State’s role in justice and the rule of law is consigned only to civil procedures.”
As I said, that was the media release issued by the couple last Friday in response to the decision by the court. I want to talk about the comments made by Ms Atoms and Dr Cunningham, because they are pertinent to this particular report and to why this issue needs to remain very much an ongoing concern for this Parliament. I note in particular Ms Atoms’ comments that she hoped that the decision would motivate the state to correct its institutional responses to allegations of serious misconduct.
The CHAIR: Hon Alison Xamon.
Hon ALISON XAMON: Thank you, Mr Chair. Despite a $1.1 million required payout, I am concerned that we may not actually see the necessary reform that is required. I note in particular that despite the efforts of the parliamentary inspector, the comments of the Joint Standing Committee on the Corruption and Crime Commission in the report “Unfinished business”, and the comments by our courts, the CCC has still refused to oversight what happened in the case of Ms Atoms and Dr Cunningham. It has been well understood that both of them were subject to malicious tasering and malicious prosecution, but I remain deeply concerned about the fact that the concerns raised around the tampering of evidence have never been addressed. In particular, the taser report should have been automatically available. When somebody has been tasered and a taser is subsequently handed back to police, a tasering report is issued showing how often that taser was shot. That report has never appeared, despite distinct requests for it. I am very, very concerned about that. Why has that not been looked at, bearing in mind that the degree of tasering was germane to the disputed accounts of what happened that night?
The closed-circuit television footage taken at the time disappeared. What happened to it? Who has the power to oversight and start investigating what on earth happened to that CCTV footage? I also remind members that a witness to the events filmed them on her camera, and that the footage was erased after the camera was seized. What happened to that? I want to know why our Corruption and Crime Commission has decided that those incidents alone—let alone what happened with the internal investigation at Fremantle Police Station that was apparently unable to pick up those concerns; there is more I can say on that and the conflict of interest around who undertook those investigations—are not worthy of investigation? Why does the CCC apparently have no clear interest in that? I would have thought that those were key things, particularly bearing in mind we are talking about people who still work in our police force. Those issues should be at the forefront of people’s concerns. This issue is absolutely ongoing.
I really applaud the optimism and hope of Ms Atoms that the decision will motivate the state to correct its institutional responses to allegations of serious misconduct, but I am afraid I really am not sure I can share that optimism because everything to date indicates that apparently our independent oversight body is not prepared to do that. It also suggests there are some very, very, very serious questions to be asked about internal police procedures and investigations.
I also note Dr Cunningham’s comments about his concerns that the only way Western Australian citizens can ensure that the state’s role in justice and the rule of law is followed is by having to follow civil procedures. Hear, hear—I could not agree more! These two people, despite the enormous amount of trauma they have been subject to, in many ways have a bit of an advantage over many other Western Australians. They are white and educated, and Dr Cunningham is an expert in law, so they were both well-equipped to pursue civil proceedings, when others simply would never have had that level of resourcing available to them. That makes me wonder how many other people have been in the situation of Ms Atoms and Dr Cunningham and have never, ever been able to contemplate commencing civil proceedings. Even then, Ms Atoms and Dr Cunningham have been dragged to hell and back in their efforts to try to get some justice.
I will comment on the role the state played in this. When I first stood, I said to members that although this issue has now been subject to appeal, the legal issue is not over for Ms Atoms and Dr Cunningham. Although a decision that upheld the original payment was made on Friday, firstly, the issue of costs has not been resolved. These people were dragged through an appeals process they should never have been subject to, yet the issue of costs has still not been resolved. Secondly, the government still has, 28 days from Friday, the option to further appeal, so we do not know whether this issue has actually been resolved for this couple. I stand here hoping that the government will do the right thing by certainly not throwing any more taxpayers’ dollars at this and allowing this couple to once and for all get on with their lives, leaving the hard yards up to us. I am certainly keen to try to make sure that we deal with the substantive systemic reform required to make sure that this can never happen again. Right now, they are still in limbo.
I am pleased that the Attorney General has made the right comments. Not surprisingly, there has been significant media on this. I quote from The Weekend West of Saturday, 24 November 2018—I am happy to table these quotes—which reported —
Attorney-General John Quigley said the damages payment could be finalised before Christmas.
I really hope that will happen. The Attorney General has said it will, so I am basically making it clear to the Attorney General that I expect it to be followed through on. Pay this couple their damages. Pay them what they are owed. Do not drag them through any more hell.
Hon Nick Goiran: Did he say “could” or “would”?
Hon ALISON XAMON: He is quoted as saying “could be finalised before Christmas”.
Hon Nick Goiran interjected.
Hon ALISON XAMON: The article has another direct quote of Attorney General that states —
“The State wanted to determine a legal principle. Now that has been determined, the case is over and they will get the money they were awarded by the court,” ...
Members, I am appalled by that. This couple was put through an appeal process on the taxpayers’ dime, with all the inherent uncertainty and distress that results, apparently because the state was interested in pursuing a legal principle just to see how it would work out. I am absolutely appalled that that is how taxpayer dollars were used, although it was very, very clear from the outset that this couple should have received that money.
I will quote the Attorney General from the Hansard of the other place on Thursday, 22 March 2018, in which he says how the state will pay. He said —
When that finding came out with a $1.1 million damages award that the taxpayers will ultimately have to pick up—I note it is under appeal but the taxpayers are obviously going to have to foot the bill ...
The CHAIR: Hon Alison Xamon has the call.
Hon ALISON XAMON: If the intention was always to pay out that money anyway, how disgraceful to continue with the appeal. Quite frankly, the appeal should have been dropped as soon as this government came into power. I understand it was initiated by the previous government—I also condemn that decision—but it should have been immediately dropped. People should not be put through this sort of hell for the sake of just playing around with the idea of seeing whether a legal principle will fly. This state needs—this is a classic case—some sort of model litigant guidelines. The original case run and defended by the state and individual police officers, as they are entitled to, was that it should not be liable to pay any money to this couple because what the police officers had done was deemed to be within the realms of reasonable conduct and reasonable behaviour. That was the argument that the previous government chose to put against this couple—it was clearly being instructed. It said, “Tasering is within the normal realms of what you would expect” and, presumably, everything else that comes with it, including subsequent malicious prosecution and all those sorts of things, are part of the normal course, which is why the couple was not entitled to any damages. The courts threw that out, obviously, and said it was absolute rubbish. A damning decision was made when damages were awarded that outlined quite clearly why what happened to this couple was absolutely not remotely within the normal realm of good policing. When it came to the appeal, the argument put up was that the money should not have to be paid because what the police officers had done was so outside the realms of what would be considered reasonable conduct—was so unreasonable—that the state could not possibly be held liable.
This is an example of why people call for, and why this state needs to have, what are called model litigant guidelines. The reason that states implement model litigant guidelines is precisely because it is recognised that the state has a degree of power and access to resources that individuals, when they are trying to take on the state, simply do not have at their disposal. It is recognised that it is not the role of the state to engage in oppressive behaviour against its citizens, yet that is exactly what happened in this instance. It is not enough that these people were subject to the most heinous conduct by the police, were let down by the independent oversight bodies, were subject to—I will absolutely say this—corrupt behaviour within the police force, but they then had to take it upon themselves to try to address the issue, only to deal with a state that uses its might, power and almost limitless resources to be able to deny them justice even further. I think this is absolutely appalling and I am so angry that this has been able to happen. Members here should be absolutely enraged that this has been able to happen as well.
I have asked whether the government has any intention to introduce model litigant guidelines. I will go back because I am not the first Green to have mentioned the issue in this place. My former parliamentary colleague Hon Giz Watson asked the parliamentary secretary representing the then Attorney General about whether there was any intent to introduce model litigant guidelines within Western Australia. On 21 September 2010, the then Attorney General came back, via the then parliamentary secretary, and answered —
Model litigant guidelines are unnecessary in this jurisdiction. Judicial pronouncements throughout Australia dating back to at least 1912 have identified a clear and unambiguous duty upon the state to act fairly and honourably in the conduct of litigation.
At the time, the Attorney General said that we do not need to have model litigant guidelines because, effectively, the state is already sort of doing it now. The answer goes on and the final statement reads —
The convergence between general barristers’ duties and model litigants’ duties has been further supported by judicial statements.
I asked the question again of this Attorney General on 16 May 2018. I asked whether the Attorney General would issue model litigant guidelines for legal practitioners acting for the state and its agencies. The reply was —
Generally, I have no plans to issue model litigant guidelines as the State of Western Australia, and its practitioners, have a duty to act fairly and honourably in the conduct of litigation.
The obligations on government practitioners do not differ from those incumbent upon all barristers and solicitors conducting litigation, albeit they are held to a higher standard. These obligations echo model litigant guidelines in other jurisdictions and it is difficult to envisage a way to express these higher standards for the purposes of codified guidelines.
It was, effectively, exactly the same answer and I have to say it was pretty unimpressive. I will also say that this question followed a previous question I had asked on 27 March, probably six weeks before I asked the second question. It was —
Will the Attorney General issue model litigant guidelines for legal practitioners acting for the state and its agencies?
The answer I received was —
Given the detail of the question and the answer required, the Attorney General requests that this question be placed on notice.
It was a yes or no question, so it was a disgraceful answer. Nevertheless, after asking the question, I finally got the answer that said, “No, we don’t need it.” Clearly, we do need model litigant guidelines. As demonstrated by what has happened to Dr Cunningham and Ms Atoms, we cannot trust the state to do the right thing when it comes to the appeals process. We clearly cannot trust that it will be done in a way that is fair and not oppressive to citizens. We need to start looking at how we can address justice for people.
How, members, are we going to get the Corruption and Crime Commission to finally start investigating this matter? Since the committee’s “Unfinished business: The Corruption and Crime Commission’s response to the Committee’s report on Dr Cunningham and Ms Atoms” report came out, a series of Corruption and Crime Commission reports have come out that draw attention to the use of excessive force in a number of other scenarios. One of the jurisdictions that mentions excessive force in relation to tasering was at Fremantle train station—the same station where this couple was subjected to what they went through. Reports also criticise the internal police processes and investigations. Clearly, we have an ongoing systemic problem, yet this particular case is especially problematic because of all the resultant activity that occurred around malicious prosecution and what happened with the tampering of evidence. If it happened to this couple, who else has it happened to? If the police officers responsible have got away with doing it this time, how can we feel confident that it will not happen to other citizens as well?
I think this is going to be a very live issue that continues to raise more questions than answers. I am aware that other people wish to have an opportunity to speak, so I will sit down in a moment, but I still wish to be able to say more in the future.
[Speeches and comments from various members]
Consideration of report postponed, pursuant to standing orders.