Joint Standing Committee on the Corruption and Crime Commission — Seventh Report —
“Unfinished business: The Corruption and Crime Commission’s responseto the Committee’s report on Dr Cunningham and Ms Atoms” —
Resumed from 28 November 2018 on the following motion moved by Hon Alison Xamon —
That the report be noted.
Hon ALISON XAMON: I would like to make a few comments on this report. People would be aware that this matter has been in front of the chamber for quite some time, but that it has taken a while for us to contemplate the matters fully because it was in front of the courts for a considerable time awaiting determination. After Professor Robert Cunningham and Ms Catherine Atoms had been rightfully awarded over $1 million in damages for the wrongs that were perpetrated against them, unfortunately, the government took it upon itself to appeal that decision. That meant that this poor couple, who had already been subjected to so much, had to wait for an inordinately long time before they got any sort of finalisation of the matter.
The last time we considered this report in this place, the clock had started ticking post the positive award to those two people. Effectively, the appeal had been dismissed, but the clock had started ticking on the question of whether there would be any further appeals to that outcome. I am very happy to report to members that no further appeals were lodged and, as a result, the final payment to Dr Cunningham and Ms Atoms has been granted. I am very pleased about that. Before members get the idea that this has somehow left them in an incredibly advantageous financial position, I point out that the nature of the damages were to cover the extensive legal costs that the couple accumulated over more than a decade. They also reflect that Ms Atoms, due to the trauma of what has happened to her and all the publicity that is arisen, was unable to work for an entire decade. Despite being a professional, highly intelligent woman, she was unable to do that. I remind members that the purpose of the payment was to try to put this couple back into the position that they would have been in had it not been for the corrupt behaviour that was perpetrated against them by the police.
The issue of the payments for this couple has effectively been resolved, and I am really pleased to see that. However, again I say how disgraceful it was that it took them having to take their own legal action, rather than the state supporting them in any way to get any semblance of justice. Unfortunately, the issues that led to the need for court action remain outstanding. This is the substance covered in the report titled “Unfinished business: The Corruption and Crime Commission’s response to the Committee’s report on Dr Cunningham and Ms Atoms”. I have been led to believe that at least a couple of the police officers who were involved in the initial incident are still working for the police force. However, I am not sure whether this is the case. I am not quite sure how we find out the status of the police who were involved in the initial incident. I am not sure whether we are entitled to know. It means that the general public is not necessarily to know. None of these police officers was stood down as a direct result of this incident, and that continues to raise concerns. I remind people that one of the reasons that what happened to Dr Robert Cunningham and Ms Catherine Atoms was so heinous was that the mere event of the wrongful tasering that occurred in Fremantle was not the entirety of the incident. For this couple, the true horror emerged after that when they were wrongfully charged and those charges were prosecuted. The Parliamentary Inspector of the Corruption and Crime Commission has effectively found that evidence was tampered with. That is incredibly serious, but what has happened with any of the people who were around that particular scenario is yet unknown.
I also remind members that we cannot put off this issue into the dark past. There appear to be ongoing issues around the culture of what is happening within Fremantle police. I remind members that it was only last Friday— a matter of five days ago—that the Corruption and Crime Commission tabled yet another report about misconduct arising from the misuse of a taser by a police officer. The report outlined that there were also ongoing concerns about an attempt to lay charges against the poor guy who had been assaulted and had a finger dislocated. Other incidents arise around the misuse of tasers. I want to correct something. Without the report in front of me, the report from five days ago was not about the misuse of a taser, but it was certainly about assault and attempts to wrongfully charge. In that instance, the due diligence employed by the police prosecutor ensured that the prosecution did not proceed. I acknowledge that some processes within the police force are clearly operating correctly, but it raises serious concerns about what on earth is happening out there when there seems to be this culture of these sorts of incidents happening and then the victims being subject to attempts to prosecute.
One thing that I think is also worthwhile talking about in relation to this issue of unfinished business is that this couple has been comprehensively failed by the state at every turn. For someone such as me who takes a very keen interest in the extraordinary powers of the CCC and the rule of law and how honest everyday citizens should be able to get on with their lives unimpeded, I continue to experience extreme disquiet over the failure of the CCC to deal appropriately with this couple’s incident and how they were subsequently treated by the government.
One issue that resulted from the legal matter that arose is the lack of model litigant guidelines in this state. This issue needs some urgent attention, and I think it behoves the Attorney General to look at it as a much-needed area of reform. Model litigant guidelines exist in other jurisdictions, but we clearly do not have anything like that here.
The CHAIR: Hon Alison Xamon.
Hon ALISON XAMON: I draw members’ attention to a question I asked of the Attorney General last year on the issue of model litigant guidelines for legal practitioners acting for the state and its agencies. I quote part of the Attorney General’s response to question on notice 1083 from Hansard of Wednesday, 16 May 2018 —
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.
That was the response I got. He effectively said, “No, we’re not going to be looking at this, but people are obliged to do the right thing anyway, so it shouldn’t be an issue.” With respect, clearly it is an issue, because Dr Cunningham and Ms Atoms had to go through the legal proceedings as described in this report, and the failure of the state to adhere to any sort of model litigant guidelines had the effect of subjecting them to a drawn-out and very expensive process. That is completely wrong.
I say that because the arguments put by the state in the courts that it was not liable for a payout in respect of both matters—the initial case and the appeal—were utterly contradictory arguments. In the first instance, when Dr Cunningham and Ms Atoms first brought the matter, the state argued that it was not liable to pay damages to either of them because what the police officers had done was reasonable and within their normal course of duty. As such, they were not entitled to get any sort of payout.
We know that there was a comprehensive judgement on that matter, and it outlined in horrific detail exactly why that claim by the state government was completely wrong. In my opinion, that judgement, which outlined the seriousness of the injustice that had been perpetrated against Dr Cunningham and Ms Atoms, should have prompted an acknowledgement by the Corruption and Crime Commission that there needed to be further investigation into the matter. In fact, the Parliamentary Inspector of the Corruption and Crime Commission pretty much said exactly the same thing in his report, which is part of what the Joint Standing Committee on the Corruption and Crime Commission has responded to.
Horrifyingly, this judgement from a court of law in which the standard of evidence is high was still not enough to encourage the Corruption and Crime Commission to further investigate the matter. I would have thought that, at the very least, the Corruption and Crime Commission would have been motivated at that point to look into the allegations of tampering with evidence, which is a really serious matter, but it was never looked at. That, to me, sets off major alarm bells. Why the lack of interest? Why is this not happening?
As an aside, when I talk to people outside this place about this matter, people who I think should know better keep saying to me, “Oh, Alison, there’s more to this. You just don’t know the full story. There’s more to it.” To which I say, “If there is more to it, come out with it. Come out with it in the courts, come out with it publicly, or even tell me privately.” But no-one has been able to say that. I am sick and tired of people saying that to me. To the next person who says to me, “Oh, Alison, nudge-nudge, wink-wink, you need to know there’s just more to this,” I say: absolute baloney. Absolute rubbish. There is nothing more to it. People just do not want to accept that justice has not been done and that the wrong thing happened to these people. That is the fact. If anyone comes up and says to members, “Oh, Alison keeps going on about this, but there’s more to it”, ask them what on earth they are talking about, because every time I ask, “Really? Tell me what on earth you are talking about”, no-one can say a thing, because it is absolute, unmitigated rubbish. There is nothing more to it. The wrong thing happened to this couple and the state failed and continues to fail to address that.
I return to the issue of the model litigant guidelines. The previous government decided to appeal the payout, and that decision was continued by the current government. I think that was a really terrible decision, but what is most horrendous is that the state suddenly changed its argument. The argument was no longer, “We shouldn’t have to pay the amount because what these officers did was within the realm of ordinary conduct”; instead, the argument became, “We shouldn’t have to pay this, because what the officers did was so wrong, so extreme and so erroneous that there is no way the state should be held liable for it.” The state took the exact opposite position.
The state wanted a bit both ways. This is one of the reasons there is a call for things like model litigant guidelines, because the average citizen—the average punter on the street—does not have the financial resources or tools at their disposal to take on the might of an entire state, which has a State Solicitor’s Office, barristers and everything at its disposal. This is a fundamental issue of justice and it is something that we in this place should be concerned about. This is something that we should take up and say, “Yes, we recognise that there needs to be limitations on the way that the state can use its extraordinary power and resources to effectively drag its citizens through court proceedings.” We need to recognise that.
There are ways in which we can mitigate the power of the state. For example, when it comes to dealing with criminal proceedings, people can in theory access Legal Aid if they need to. The state says, “Okay, you’re up against the DPP and we recognise that you need to be given some resources in order to deal with that, so we make Legal Aid available for you.” Of course, we can have discussions about the degree to which Legal Aid has had its funding slowly stripped and how much access is really there, but that is a discussion for another day; that is not one we need to have here.
The point I am making is that we already recognise that we need to be able to balance the might of the state against the need for people to be able to access appropriate services to get justice. But in this instance, even though it was an incredibly serious matter and even though the government had failed and continues to fail to use its departments to look into what happened to Dr Cunningham and Ms Atoms—they had to undertake that themselves—because the matter was a civil matter, the state did not hesitate to use its immense power and resources against this couple. As a result, it turned out that the appeal was not upheld, as it should not have been, because it was outrageous. It should never have happened in the first place. But that meant the payout to which this couple was entitled has been diminished even further. Seriously, how much do we need to ruin this couple’s life? So the matter is not finished. It is very much unfinished, and we will have to keep revisiting this.
Consideration of report adjourned, pursuant to standing orders.
Progress reported and leave granted to sit again, pursuant to standing orders.