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Transcript of Hearing 8 April 2004
Commission of Inquiry into Police Conduct
Hearing held on 8 April 2004, commenced at 10.00 a.m.
Hon Justice Bruce Robertson and Dame Margaret Bazley
Counsel Assisting the Commission
Ms Mary Scholtens QC
Counsel appearing for the New Zealand Police
Ms Kristy McDonald QC and Mr David Boldt
Counsel appearing for the Police Complaints Authority
Mr John Upton QC
Counsel appearing for the Police Association
Ms Susan Hughes and Mr S Feltham
Ms R Boyack and Ms J Gootjes
HON JUSTICE ROBERTSON:
Welcome back. I am a little apprehensive that a number of you don't seem to understand that there is a transcript of everything I said at the last hearing now available on the website. There are some extraordinary things being said in correspondence to us which would lead one to believe that there is some serious
misapprehensions about what we are here for, and certainly how we are going to act, and I do suggest that those who have an interest or concern in what we are doing, would perhaps occasionally look at the facts before they become involved in somewhat unhelpful correspondence which seems to be based on total misapprehension about what our task and what our mode of operation will be. There may be some issues we need to come back to specifically but I am just
a little concerned that there seems to be a good deal of misunderstanding about some quite fundamental issues. The purpose of today was for us to respond to issues which have been raised in particular by Ms McDonald and Ms Hughes, and we are happy to respond to any other issues which require attention. I understand that counsel have received in advance a copy of a memorandum which has been provided to the Commission by Ms Scholtens, and I think that our best way to proceed would be for Ms Scholtens to speak to that and then we will hear from anyone who wishes to be heard in response or to comment upon the issues raised. Is there any problem from anybody about proceeding in that way? Mr Upton, one of the issues, of course, which is raised in both those letters was the issue of the meaning of s 32 of the Police Complaints Authority Act. It appears that it would be quite unproductive for us to consider that at all today. There is a Bill. Whether the Bill will emerge as law, or whether it will emerge as law in exactly that form, can only be a matter of conjecture. My preference would be that we will wait and see what the law is when the law is settled by those who make the law and we will then determine what that means.
Well, the situation, as you are probably aware, Sir, is that the Bill has been introduced. It's now going through the Select Committee process. That's obviously
going to be truncated but there is a Select Committee process and what it will look like at the end of that we can't say. So, I agree entirely with your attitude, we
will just have to wait and see.
HON JUSTICE ROBERTSON:
I take it all counsel are aware of the recent decision of the House of Lords interpreting the Police Complaints Authority Act in the United Kingdom, Green, I think it is, Green v. Police Complaints Authority. Although that, of course, is dealing with a
piece of legislation which is very different and does not have the absolute prohibition situation which appears on the face to have existed in New Zealand. Yes, all right, thank you, Ms Scholtens?
Thank you, Sir, madam. A memorandum has been prepared and circulated and there are copies available to anybody who's interested in that today. It outlines the concerns that have been raised by counsel for the Police and for the Police Association, and correspondence has also been made available and is on the website. Those subjects, I have addressed them under four headings in the memorandum. So, basically the first one is the timeframe for complaints that are going to be the subject of this Inquiry, or can be, and the requirement for a complaint to be made to the Police. Secondly, the
extent of the Inquiry into Police practices at different locations. Thirdly, the extent of the Commission's proposed Inquiry into complaints of matters that essentially don't amount to allegations of criminal conduct, and the meaning of some of the phrases that appear in the Terms of Reference. And finally, the issue of representation for those persons who are of interest to the Inquiry- so, turning first to timeframes for complaints. Counsel for the Police have asked what years the Commission's inquiries will cover. That's a matter that counsel acknowledge that you dealt with at the hearing on the 22nd of March where you indicated that, in the first instance, in any event, you would be concentrating on a 25 year period beginning 1 January 1979 and through to the present time. At this stage, it seems that the relevance of the timeframe is to assist the Police in responding to your request for evidence directed at policies and procedures in place for dealing with allegations of sexual assault against Police Officers and/or their associates, from that time through to the present. For clarity, it's submitted that it could be indicated that it's intended to review qualifying complaints made to the Police, or the PCA, within that period. That is not a reference to the time of the alleged offending which gave rise to the complaint, and you have indicated that this period could be reviewed should the need arise, and it is submitted that's entirely appropriate. There may well be issues that arise outside of that timeframe and so long as everybody has the appropriate notice that we will be dealing with other matters, then that's something that can occur. Counsel for the Police Association have asked whether the Commission accepts that it cannot hear complaints now if no complaint - and when I say "cannot hear complaints" made to this Inquiry now - if no complaint was made to the Police at any time before the 20th of February of this year. Just one observation first, and that is that the focus - as the Commission has pointed out at the earlier hearing, the focus of the terms of reference is on the proprietary of the Police response to complaints of sexual assault. That is the primary focus. The Commission is only likely to be dealing with complaints after the Police have completed their investigations and where the complainant has expressed some dissatisfaction with that process. However we, that's counsel assisting this Inquiry, submit that there is no need for the Commission to take an unduly restrictive approach. That's not required by the Terms of Reference. You are not constrained by the Terms of Reference in that regard. There may conceivably be circumstances where recent complaints become relevant. It can, nevertheless, be reiterated for the sake of clarity that the focus, or the principal focus of the Inquiry, and certainly the way the Inquiry will its envisaged start off, is to look at the way Police handled complaints and not the behaviour that led to those complaints.
So that, the second subject is the extent to which this Inquiry is going to look at practices at various locations within New Zealand. On that point, counsel for
the Police asks whether the Commission is mandated to report on practices in every centre where a relevant complaint of sexual assault has been received. They seek clarification of the phrase "other relevant localities" in the Terms of Reference at paragraph 2(a). This term of reference requires the Commission to consider the practice of Police in the investigation of complaints alleging sexual assault by members of the Police and/or their associates, including the practice in both Kaitaia and Rotorua at the material times. Of course, those two localities are where the initial complaints made in the public arena were related to and which led to the setting up of this Inquiry, as can be seen from the introduction to the Terms of Reference.
But the term of reference also extends to any other relevant localities. I assume that those localities will be identified, if there are any, once any relevant
information that raises issues about practices in other locations is received and assessed by counsel assisting. So, the way I see matters progressing is that counsel assisting, myself and my learned friend Mr Raftery and our assistants, will consider complaints, look into whether they ought to be inquired into further, and then advise counsel for the Police of the relevant locations that we want to hear more about, and then the Commission will receive evidence in relation to those practices at the relevant time. So, the important matter is, of course, that the Police will be on notice of the localities that we are interested in when it comes to the practices in those areas.
Then the next subject is the extent of the Commission's proposed inquiries into complaints of matters that don't amount to allegations of criminal conduct and
the meaning of the phrases "sexual assault", "sexual activity that gives cause for concern", "the general proprietary of the conduct of members of the Police in
respect of sexual matters" and "personal behaviour, including sexual conduct".
Both the Police and the Police Association have sought to clarify the extent to which the Commission might inquire into matters beyond the treatment of complaints or allegations that amount to sexual assault, or that allege sexual assault. Both parties seek some definition of the type of conduct which might amount to sexual assault. I submit it's not necessary for this Commission at this very early stage to limit in any definitive way the possible matters that it might see fit to inquire into, and definitions obviously can raise difficult line drawing questions.
However, it is understandable that the Police want to have some guidelines as to matters of interest and it's desirable, it is submitted, that they have some guidance.
I agree that section 185A of the Summary Proceedings Act 1957 gives a useful guide to matters that fall within the definition of "sexual assault". That provision refers to offences against a person of a sexual nature and includes those set out in relevant provisions of the Crimes Act. It also includes being a party to any of those offences and includes conspiring with any person to commit any of those offences. So, the definition is, of itself, a very broad one. But, again, it's important, in
our view, that the Commission isn't unduly restrained or constrained by a legalistic approach to matters of fact that are not yet before it.
The next issue is the issue of sexual activity or conduct that doesn't amount to sexual assault. It's observed that there appears to be a level of confusion - and some of this comes through some of the correspondence which the Commission is receiving and obviously these issues will be dealt with further at a later date – and some concern expressed in the public domain as to the scope of the Terms of Reference and the ability of the Commission to consider sexual conduct by the Police that does not amount to an offence. Accordingly, what I have attempted to do is analyse the Terms of Reference and propose a process which is an attempt to clarify the appropriate approach, but again is careful not to unduly restrict the Commission's role, given that we don't know the sorts of matters that might come before you at this stage. So, first I refer to the general order to the Commission, this is a reference to the Terms of Reference themselves, there's a heading "Appointment and Order of Reference" in the Governor-General's Terms of Reference, and the opening paragraph to that section, which starts on page 2 of the published Terms of Reference, directs – and I have summarised it into three points - it directs the Commission to inquire into, first, the conduct, procedure and attitude of Police in relation to allegations of sexual assault by members of the Police and/or their associates; secondly, the extent to which unprofessional behaviour relating to, or in the context of, such allegations, was or is tolerated; and thirdly, the manner in which such allegations were or are handled by the Police, either directly or on behalf of the Police Complaints Authority where complaints come within that Authority's domain. So, that's the general direction. The order then sets out particular matters and there are quite a number of them, upon which the Commission is asked to report. They can be seen, it is submitted, as particulars that give detail to the general statements that are referred to above. The opening paragraph emphasises that the Commission's primary focus will be on the response of the Police to complaints or allegations of sexual assault. This will include both direct complaints and the investigations of complaints by Police on behalf of the Police Complaints Authority.
However, the Commission will also consider the extent to which unprofessional behaviour relating to, or in the context of, such allegations, was then and is now tolerated. This matter is taken up in the particular Terms of Reference, especially term of reference 2(e) which refers to whether disciplinary action has been and is taken against members of the Police who engaged in sexual activity that gives cause for concern or complaint or both, and if not why not; and term of reference 2(f) which asks whether the attitude of the Police has been, and is now, conducive to the effective and impartial investigation of complaints alleging sexual assault by
members of the Police or their associates. And then (g) which looks at Police practice in place in the past and now and whether it adequately supports and encourages members of the Police who know of allegations that sexual assault has been committed by colleagues or associates or both to report the allegations to an appropriate person and then Term of Reference 4, which focuses on standards and codes of conduct in relation to personal behaviour for members of the Police, in particular but not limited to, applicable standards or codes of conduct in relation to personal behaviour, including sexual conduct, and whether they have been and are adequate and effective and under (b) whether action has been or is taken if standards or requirements of codes of conduct are not met.
So, in the first instance, it's submitted it will be for the Police to indicate what behaviours, if any, fall within the description "sexual activity that gives cause for concern" in term of reference 2(e). I suggest that at the appropriate time Police be asked to present evidence which answers questions along the following lines – and here we are thinking ahead again, I don't want to suggest to the Commission that this is definitely the way to proceed but this seems to me to be one way of proceeding and a likely process but further down the track - so at the appropriate time they be asked to present evidence and the sorts of questions one would want to hear from them, I submit, is first what forms of sexual activity or conduct that doesn't amount to criminal conduct have in the relevant past caused them concern and why; secondly, what was done about that, if anything, and why, or why not; and third, what forms of sexual activity or conduct that doesn't amount to criminal conduct now causes the Police concern and why, and we're talking about conduct amongst their members obviously; and fourth, what's done about that conduct, if anything, and why or why not.
Again, I emphasise that it is, at the end of the day, the Commission's role to determine and report on the type of behaviour that both should have the relevant time given and/or now give cause for concern. So, while it's suggested it would be appropriate to hear the Police's evidence as to what they think, at the end of the day, the Commission is obviously going to have to test that and come to its own view as to whether the Police's approach is considered appropriate.
And then for completeness, I have submitted that the phrase "the general proprietary of the conduct of members of the Police in respect of sexual matters" is also a matter to be considered in the course and context of those Terms of Reference referred to, and other particular Terms of Reference. However, I do note it's not a phrase that appears in the body of the Terms of Reference themselves.
It is in the recitals in paragraph (d) and, once again, it's emphasised the focus is on the adequacy of the Police response to allegations of sexual assault by their members or associates. Each of those introductory paragraphs in the recitals refers to the investigation, of and subsequent action in respect of, allegations or complaints of sexual assault.
You can see by the opening words that each of those paragraphs (a), (b), (c) and (d) also relate expressly to questions raised by those various allegations, being the allegations by Louise Nicholas, Judith Garrett and any others the Commission determines it's appropriate to consider.
There is no mandate for a broad ranging inquiry into the general sexual conduct of members of the Police. Such conduct is only likely to be relevant in the context of the handling of relevant complaints, both specifically and at a more general institutional level. I envisage that this will be addressed at least in part in evidence from the Police along lines similar to those already signalled.
So, to the extent to which the Commission considers that matters relating to sexual conduct of the Police outside of sexual assault are relevant, once again it's submitted that these will be matters which everyone affected will be properly put on notice about and have an opportunity to consider and address at the relevant time.
At this stage, it's difficult to envisage just exactly how that's going to play out. And it is submitted that this is as far as the Commission need go in responding to those questions by the Police and the Police Association. It would be inappropriate at this very early stage to unnecessarily restrict the scope of the Inquiry.
Then, finally, the issue of representation for those persons who are of interest to the Inquiry. The Police Association makes further inquiries relating to legal representation for interested persons who might be adversely affected. So, obviously, the concern is in relation to members of the Police or their associates who face allegations relating to either their behaviour, their role in investigating complaints etc., where there is a potential for their interests to be affected by the Commission in an adverse way.
At the preliminary hearing on the 22nd of March, you indicated that you would be likely to be willing to accept individual representation of people at risk of an adverse finding, and the Police Association have inferred from this that such representation will be funded and asks about the process. It appears at this early stage that a significant number of individuals may have interests that they would seek to protect through separate counsel. Whether or not that facility is available, I see the role of counsel assisting, that's myself and Mr Raftery, as assisting the Commission in ensuring that all persons with a special interest in the subject matter of the Inquiry, are treated fairly in accordance with the relevant principles of natural justice. Now, that's why people are asking for their costs to be funded for separate representation because they believe natural justice requires that. At present, one can only speculate on whether difficulties might arise for the protection of individual interests that might call for separate representation and what, if any, consequence arises if that's not available to an individual. So, at this stage it's very difficult to say whether there are people who ought to be separately represented, but it should be made plain that the Commission itself has no funds for separate representation. As counsel assisting, I am not entirely sure who the appropriate body is for applications for funds, and that's something that I guess we ought to clarify and will at some stage. Obviously, there are the usual channels for Civil Legal Aid and, otherwise, I have suggested that the matter might be taken up in the first instance with the Attorney-General's Office but that is something that I would need to confirm. I am aware there has been some correspondence that has come in from persons with an interest in the Inquiry
but, to the extent they raise matters that may also be raised by other counsel here today, I would prefer to deal with those in reply. Thank you.
HON JUSTICE ROBERTSON: Thank you, Ms Scholtens. Ms McDonald?
MS McDONALD: Yes, thank you, Sir. I've got a written outline of the position that I am taking on behalf of the Police and I have got copies of that. I apologise for not having it submitted in advance but time hasn't allowed me to do that. (Written submissions handed to Commissioners and counsel). Because it hasn't been submitted previously, I will go through it in its entirety, really.
I set out by way of Executive Summary the particulars that we sought by way of the memorandum that was filed on the last occasion. The fourth of those matters, the one that I've marked on this submission as 1.4, it seems to me to be the one that arises the most debate, at least from the point of view of the Police, and that is whether and to what extent this Inquiry will examine personal conduct and sexual activity that is lawful. In this context, the Police seek, and have sought, some explanation of the phrases "sexual activity that gives cause for concern", "the general proprietary of members of the Police in respect of sexual matters" and "applicable standards of codes of conduct in relation to personal behaviour, including sexual behaviour".
The Police position in relation to that matter is that the Terms of Reference will require this Commission to examine lawful conduct in certain circumstances. In particular, the Police accept that it is open to the Commission to consider sexual conduct that may, when viewed objectively, damage the integrity of the Police.
One example of such conduct would be sexual activity which, though consensual, involves an obvious power imbalance, such that there is a real risk that one party's
vulnerability, youth or naivety has been exploited. To be relevant though, such conduct will normally be linked in some way to the perpetrator's status as a member or associate of the Police.
Having said that, it's submitted that strictly private conduct, which is not unlawful and does not impact upon the general integrity of the Police, will fall outside the Commission's brief.
In relation to the other aspects of the particulars that have been sought, our position is that the sexual assault could usefully be defined in terms of s 185A of the Summary Proceedings Act, as I had already indicated, and that "unprofessional behaviour" refers to sexual misconduct, tolerance or acceptance of colleague's sexual misconduct and a deliberate failure by Police to investigate such allegations properly, and I will say a little bit more on that shortly.
Particular 2(a), when read in context, in our submission, appears to indicate that the Commission is required to report on general practices only in Rotorua, Kaitaia and any other centre where events occurred that are relevant to the Garrett and Nicholas inquiries.
Turning then to the issue of "sexual assault". The Terms of Reference make repeated reference to allegations of sexual assault. The term is not defined. However, given the context, we suggest that the definition of s 185A of the Summary Proceedings Act is the appropriate one to rely on. There doesn't seem to be too much debate about it.
HON JUSTICE ROBERTSON: It is a good starting point. I am not going to be terribly impressed by any semantic argument as to whether it's inside or out but I think 185(A), which ends up saying "any other offence against the person of a sexual nature" will be wide enough, even for my tolerant mind, Ms McDonald.
MS McDONALD: Well, we don't need to debate that further, in that case, Sir.
HON JUSTICE ROBERTSON: What, the tolerance of my mind or the definition?
MS McDONALD: I wouldn't even venture to go there, Sir. "Unprofessional behaviour", this particular, as I think I indicated in the last memoranda, was sought by us for the avoidance of doubt. It's not clear exactly what is meant by "unprofessional behaviour" in this context but what we have done is reasoned backwards really, and there can be no argument, I suggest, that professional behaviour would consist of a thorough and objective investigation into the complaint and the exercise of the discretion to prosecute in a scrupulously fair and impartial manner. In particular, there should be no suggestion that Police Officers might turn a blind eye to sexual offending if the alleged perpetrator is a colleague or associate. It follows from that, that it appears that this particular requires the Commission to examine whether there is any evidence that Police are guilty of tolerating sexual offending committed by colleagues or associates, whether by giving tacit encouragement to such conduct, failing to investigate allegations of sexual offending properly, or by declining to prosecute in circumstances where charges should be laid. Put more bluntly, this term of reference appears to ask whether Police condone sexual offending by colleagues or associates and covers such offending up when complaints are made. As I've already noted, the Inquiry about this particular was included to avoid any argument later and to really obtain the Commission's confirmation that the interpretation or the view we had about that Terms of Reference was correct.
Can I just say there though, in terms of the use of the term "associate of Police", we haven't made a specific submission in relation to the meaning of that. However, if it subsequently becomes an issue, I would just like to reserve my position to come back to the Commission if we need further clarification on that.
Turning then to the phrase "other relevant localities", again that particular was sought for the avoidance of doubt. On its face, that paragraph seems to relate only to the Nicholas and Garrett complaints, both of which are referred to in the recitals of the Terms of Reference and which arose in Rotorua and Kaitaia respectively. Accordingly, it appears that the phrase other relevant locality" refers only to places where events relevant to those inquiries took place.
HON JUSTICE ROBERTSON: Doesn't that require you to ignore the recital which follows after the reference to Ms Garrett in Kaitaia and says, "and whereas it has also been alleged that investigations carried out by the Police into other allegations have been inadequate"? You see, I think that you can only read it down in the way that you suggest if you ignore that recital. What we have is Ms Nicholas - Rotorua, Ms Garrett - Kaitaia, and the recital says there are others, and that's where I think the relevant localities comes from but because we have not identified what those are, we don't know what the relevant things are but if we come to look at an incident arising from a different locality, then we will have to look at the practices and approaches which existed there.
MS McDONALD: That may well be the case, Sir, and, to be consistent with some of the other comments that I have made in terms of this submission, I think that that sort of approach would be consistent. My only comment would be, we just need to be able to identify that and we need to know that so that the proper disclosure of relevant documents and the inquiries that the Police need to make in order to meet your needs is notified to us with sufficient timing.
The approach suggested by Ms Scholtens in a number of respects in her submission, with respect to her, I am not sure that that would be that helpful because it's leaving things too late and, with respect, it's a little vague. The reason we sought the particulars that we did when we did, was so that the Police can meet the needs of the Commission efficiently and in a timely fashion. There is a great bulk of material and a large amount of inquiry that does need to be made by the Commission of Inquiry team that's working on this matter but I don't take issue with what you have just said.
HON JUSTICE ROBERTSON: Yes.
MS McDONALD: I will perhaps leave that for the moment and if I need to come back to that issue of other relevant localities I will. I will move on though to -
HON JUSTICE ROBERTSON: Ms McDonald, I don't want to stop you but if you are at the end of that and before you go on to lawful sexual conduct, it may be worthwhile my just talking with you about how I see things moving from here.
As you are aware, the Commission has been receiving correspondence from people who wanted to register their interests, and my principal concern at this stage is people who may come within a category of someone who made a complaint of sexual misconduct by a Police officer – and if I just use that shorthand phrase rather than the qualifications and additions - made a complaint about behaviour by a Police officer and they were dissatisfied with the manner in which it was dealt with. Although one can break down some of the definitions in the operative parts and say, you know, this is a Commission of Inquiry into everything to do with Police complaints, I don't believe anyone can read the document as a whole and reach that view. If Her Excellency had wanted a Commission to do that, all she would have needed to say is about two lines, "Please inquire into the nature in which Police complaints are dealt with". It appears, and also if one looks at the time-span which was put on this, if one had been wanting that larger Inquiry, one might have been thinking in terms of years rather than months. So that, when the document is read as a whole, it seems that we really come back to the points I thought I had tried to make last time we met, that it is about complaints of sexual activity by Police Officers not satisfactorily responded to.
Now, the information which is coming into the Commission at the moment, we are seeking to respond to, in the first instance, by having people spoken with, so that we can find out their story in their way, and that investigation and inquiry is being done without reference to and without the involvement of the Commissioners. That is an inquiry which is being undertaken under the supervision of staff and of Ms Scholtens. When those stories are available, then where it appears that there are matters upon which the Commission would need to hear evidence, then there will be steps taken by counsel assisting to determine what that evidence will be. Now, at the first available opportunity, you, and everybody else of interest, will be told of those matters where there are issues that we are looking at and we need to hear any other side of the story which might exist. So, that is the way we are at this stage working on matters where people are putting up their hands and saying they have something to say.
Now, there is a second side to all this, and that is the issue of what the environment which the Police have created for themselves during this period has been, what have the general instructions been, what have the protocols, the drafts, the regulations, we want to know all that.
The Commission, it appears, at the same time, needs to hear in the first instance from the Police, what are matters which are non-criminal, or potentially non-criminal, which the Police have taken an interest in and which they have done something about. Why or why not. But it seems that it would be assuming an evidential base without having one for us to try and layout in advance what, in fact, are matters that could be of interest. I mean, this is a highly disciplined organisation which has its own rules and operations, and what we are being asked to do is when we know what has gone on, when we know why matters which may not be potentially criminal have excited interest or have not, then we will be in a position to determine whether they have been adequate or appropriate or, rather more importantly, whether they are adequate or appropriate going forward because in that part of the inquiry it is the environment for the future that is of utmost importance. But it just seems that some of these issues upon which you seek guidance, direction and definition, will only get guidance, direction and definition when we learn what the empirical history has been. Why there have been some matters which the Police have taken an interest in and some which they have not. I mean, my grey beard is enough for me to remember the time when Police Officers had to get consent to marry, when Police Officers could not live in a relationship without the benefit of a Marriage Certificate. Now, those are simply matters that a young fellow like me has personal knowledge of having heard and seen, some of it more than 25 years ago, but we need evidence, we need to be told what has gone on and why it's gone on, before we can make an assessment as to whether this has been appropriate or adequate and would continue to be so into the future. Now, that may just muddy the water for you more, Ms McDonald, but that's where we're coming from at this stage.
MS McDONALD: There's quite a lot in there to respond to, Sir. Can I say this, though, at this point, I want to go on and deal with my submission which you won't have seen yet in relation to the lawful sexual conduct matter because that is the Police position on, if you like, the scope of this Inquiry, and it is certainly advocating an Inquiry that has not narrowed as a relatively wide ranging Inquiry. That is the first point and I would like to deal with that.
HON JUSTICE ROBERTSON: Please do.
MS McDONALD: But just to pick up on one thing you said, Sir, there is nothing but a very obvious and clear intention on the part of the Police to provide, and we're doing it now really, provide all of the documents to you, they are simply being collated at the moment, so that - I am not advocating a delay now in terms of disclosing material to you. What we are wanting to do is seek clarification at this early stage so that we, or the Police, in preparation for this Commission, know how far to go in terms of what sort of evidence we might want to choose in addition to that, or as part of our case, if you like, to put before the Commission.
But can I deal with this submission first because I think it may assist. It really starts at paragraph 15. We have had the benefit of reading the submission tendered by the New Zealand Police Association, and that submission really is that this Commission should confine its Inquiry to allegations of unlawful conduct. It appears clear that the Terms of Reference require this Commission to look though more broadly at the sexual conduct of members of the Police and, provided the Commission inquires into lawful conduct only in circumstances that I then now go on to look at, then the Police and the Commissioner have no difficulty with this Inquiry extending into that area.
Indeed, if there is evidence that aspects of an officer's personal behaviour, including their sexual conduct, clearly compromise their ability to perform effectively as officers, or impact upon the general integrity of the Police, as I indicated earlier, then it is in the interests of the Police, along with the community as a whole, that this behaviour receives proper scrutiny. While the Terms of Reference are primarily concerned with the way allegations of sexual offending has been dealt with, the three parts of the Terms of Reference to which attention has been drawn all go further than that, and I look at each in turn now.
In addition to indicating that questions have arisen about the Police's response to allegations of sexual offending by members or associates, the recitals of the Terms of Reference indicate that questions have arisen about the general proprietary of the conduct of members of the Police in respect of sexual matters. That clause would have been unnecessary if lawful conduct fell outside the Terms of Reference. Similarly, paragraph 2(e) goes further than the surrounding subparagraphs which speak of sexual assault, and refers to sexual activity that gives cause for concern or complaint or both. Read in context, it appears that that context, or subparagraph, is primarily concerned with lawful conduct, sexual conduct that is not sexual assault, but which may nonetheless be objectionable. The phrase "sexual activity that gives cause for complaint" appears to refer to matters of harassment that fall short of criminal offending but there is no guidance as to what may constitute sexual activity that gives cause for concern.
Finally, the Commission is directed to inquire into whether the applicable standards or Codes of Conduct within the Police in relation to personal behaviour, including sexual behaviour, are adequate and effective. It would appear that such an Inquiry cannot be completed without determining what constitutes an appropriate standard of personal sexual behaviour for Police Officers and whether the evidence discloses examples of personal sexual behaviour that fall short of that standard. While it appears, with respect, that the proposition that the Commission should confine itself to unlawful conduct cannot be sustained, the Police endorse the Police Association's submission that this Inquiry should not concern itself with questions of morality. Members of the Police, like every other member of the community, are free to engage in any separate private sexual practice they wish, provided their conduct is lawful and nothing they do impacts, either upon their ability to do their job, or the integrity of the Police as a whole.
As I've noted, at paragraph 2(e) it appears to contemplate that allegations of sexual harassment, as activity that gives cause for complaint, will fall within the Commission's brief. Leaving harassment aside, the Police propose that the Commission adopt a definition of lawful but inappropriate conduct that is confined to
instances of outrageous conduct that indicate an exploitation of a position of power or that may, in some other way, damage the integrity of the Police by compromising their ability to retain public confidence. In that context, it's accepted that one example of a situation where the integrity of the Police may be damaged is when members or associates engage in lawful sexual conduct in circumstances of an obvious power imbalance between participants, such that there is a real risk that one party's vulnerability, youth or naivety has been exploited.
If the Commission agrees that one of the touchstones for determining relevance for lawful conduct is its impact upon public confidence and the integrity of the Police, then it follows there must generally be a link between the conduct in question and the perpetrator's status as a Police Officer before it will fall within the Terms of Reference. It's important that this aspect of the Inquiry does not assume a greater level of importance than the Terms of Reference allow. Lawful conduct is not, in my submission, the Commission's primary focus. For this reason, it's submitted that the Commission should adopt a high threshold before considering conduct under this heading. Cases should clearly constitute exploitive or otherwise damaging conduct before they are considered and while it will not be possible to define conduct that falls
into this category with absolute precision, if a suitably high threshold is recognised and cases are excluded where there is any element of doubt, this part of the Inquiry should remain within manageable limits, in our submission. Different people, as you have just indicated, Sir, at different times will have different views and different ideas as to what constitutes acceptable private conduct.
It is submitted that it is not part of the Commission's brief to define what lawful and private conduct is acceptable and what is not. The Police propose that the Inquiry in this area remain as objective as possible with its primary focus on the potential for the conduct in question to damage the integrity of the Police as a whole.
The Terms of Reference do not contemplate any judgment being made as to matters of morality unless this element. That is the position that the Police have instructed me to take and to place before you at this point in the Inquiry. I understand your comments, Sir, but in terms of being able to meet the Commission's need, it is my
submission that we do need to hear from the Commission as to how you see the scope of this Inquiry at this stage. Aside from issues of how, why, the inquiries need to go in terms of from a Police point of view, in terms of preparing for this Inquiry, there is, of course, the issue of the disclosure and obtaining documents, at what point do we - where do we draw the line in terms of collating the relevant material.
The additional factor is an internal one. As you would I'm sure understand, there is a concern publicly, and I think probably within Police, that this Inquiry does not embark upon matters of morality but that the limits - the appropriate limits that I suggest are the ones that the Commissioner has suggested should be the focus, the proper focus, for this Inquiry, that it not go further than that and that that would meet the public interest in this matter.
HON JUSTICE ROBERTSON: I don't understand where we are apart at the moment, Ms McDonald.
MS McDONALD: Where we are? Sorry, Sir, I didn't hear what you said.
HON JUSTICE ROBERTSON: I said, I don't understand where we are apart at the moment.
MS McDONALD: Well, it may be that we're not.
HON JUSTICE ROBERTSON: Is it the starting point that obviously you will be making available, in case the Commission require it for evidential purposes, material as to potentially criminal behaviour. There's no argument about that. What it appears we would be interested in next is where the Police have initiated action with regard to Police Officers over the 25 years in respect of sexual conduct which has not been potentially criminal.
MS McDONALD: Yes.
HON JUSTICE ROBERTSON: And they can tell us about that. And what we will perhaps find from others is situations where people say there was other conduct which the Police knew about which they should have initiated matters about, but I have difficulty with this notion that in some formulaic way we can provide you in advance with a definition that would stand up to monastic analysis by a semanticist on what exactly is in or out or roundabout. What we want to know is what has happened and why.
MS McDONALD: Well, we're going to tell you that, Sir.
HON JUSTICE ROBERTSON: Yes. And perhaps there are some instances where the Police have taken action with regard to sexual conduct which was not potentially criminal, or it may be that the evidence will be that it has never been a matter of interest and never should have been. I don't know but it seems that we have to wait and see how things develop out of what has occurred, how the Police have operated, and I suspect it may not necessarily have been the same throughout the 25 years, and it may already be proposed that it's not going to be the same going forward, but that will be the starting point. If there are challenges as to the metes or bounds that have existed, then we will hear that and, if it is appropriate, we may express a view in due course as to objectively what we view as the solution.
MS McDONALD: Well, I'm heartened to hear from you that we don't seem to be that far apart and it would certainly be helpful if you were able to indicate that the sort of approach that I have just advocated in this submission is generally how the Commission sees this matter going. One of the problems that we would have otherwise is being able to meet complaints that certain private conduct is unacceptable and should be the subject of Inquiry, that falls short of the sort of matters that I have referred to in the submission, namely that doesn't impact on Police integrity and public confidence in those matters. There is a grey area and that's why I have addressed it in the way that I have in this submission, and I can do no more than reiterate the sort of comments that I've already made, and that's why it would be helpful to hear from you that the sort of approach that you see is consistent with the way that it is being considered by the Police, and we have endeavoured to adopt a wide and open approach consistent with the public interest but at the same time recognising that private lives are private lives. If they don't come within the sort of criteria that I have suggested, namely if they don't impact on public confidence or a Police officer's ability to perform his tasks, and do not impinge upon, or do not amount to the exploit sort of conduct that I have talked about. If we are at one on that, then that's fine.
HON JUSTICE ROBERTSON: Well, we may need to talk about it further when I have heard from some of your friends. Mr Upton, do you have anything you want to say at this stage with regard to the issues which are on the table at the moment?
MR UPTON: No, Sir. The PCA doesn't wish to get involved in the specifics of the debate over the wording or scope of the Terms of Reference. I don't propose to make any specific comments on the matters that are being aired this morning. What I would like to do is to be able to assist, if I can, in a non-partisan sort of way, on an amicus basis, if at any stage that would assist. But can I just make three general observations about the issues that are being talked about today.
Firstly, I suspect that the Commission is not going to be able to go beyond generalities at the moment in a large part of this argument over, or discussion over, what do the Terms of Reference cover because I suspect that, to a large extent, it's going to depend at the end of the day on what evidence is dished up as to -
HON JUSTICE ROBERTSON: You and I are absolutely ad idem on that. I really am of the view that this whole thing needs to be rooted in actual historical reality and not in theoretical or formulaic processes. We will be here until doomsday if we start in that way.
MR UPTON: Absolutely.
HON JUSTICE ROBERTSON: That's why I'm saying that I want to hear from the - I would expect to get evidence from the Police about times where they have reacted to something which is less than potentially criminal behaviour, if they have, and then we will have to look and see whether any other instances come to attention, and if they do, and if our counsel were of the view that they may be worthy of being looked at, then the Police would be given the opportunity, and the individuals obviously concerned, to comment upon it.
So, that's really all I'm trying to say at this stage.
MR UPTON: I can see a scenario, Sir, where you have to sit back and wait and see what material is placed before you, and you will then look at it and say, "We now want some further information as a result of what we've now seen" and in that way a process will develop against which you can then apply the Terms of Reference. That's the first general observation I wanted to make.
So, it's probably, to a large extent, and this is taking a pragmatic view, it is probably to a large extent somewhat premature to go very far into trying to argue what this word means or that phrase means, the scope of the Terms of Reference, but that leads into the second observation I just wanted to make, and that is that, quite clearly when you look at your Terms of Reference, you are charged with a general inquiry, and then under that general inquiry you have four categories of particulars and those four categories of particulars break down quite plainly into distinct subtopics, and the first of those is policy, that's the first particular; the second of it is practice; the third - so that, particular one deals with policy - I am just picking out the wording of the Terms of Reference, there's no rocket science in what I'm doing.
The second particular relates to practise; the third relates to the adequacy of investigation by Police on behalf of the Police Complaints Authority; and the fourth particular is dealing with standards and Codes of Conduct.
So, that's how the structure of the Terms of Reference are put together.
The third observation I just wanted to make, Sir, was that, although the Police Complaints Authority is mentioned four times in the Terms of Reference, it's always in the context of work carried out by the Police on behalf of the Police Complaints Authority. So, we're always coming back to looking at the conduct of the
Police. And that's all I wanted to say, unless there was anything else I could help you with.
HON JUSTICE ROBERTSON: The one question I wanted to ask you, Mr Upton, this morning was, the Commission at this juncture are of the view that when the Terms of Reference are read as a whole, they are about those four matters which you have identified with regard to activities with a sexual connotation and not otherwise. And we have had some correspondence, some relatively insistent correspondence, wishing us to take, is it 4(e) and 5, or something, and say - it doesn't matter which the sections are, - but the generality words and say, "and, therefore, you then jump into an entire inquiry into all Police complaints". Our view is that that is not the remit that
we have and that everything is influenced by sexual offending or other relevant sexual conduct and the responses to that.
MR UPTON: Absolutely. The particulars, of course, and I'm not - I don't want to be seen to be teaching you how to suck eggs but the particulars, of course, are controlled by the generality, the opening part of the Terms of Reference, and that, in turn, is interpreted against the recitals -
HON JUSTICE ROBERTSON: The recitals, yes.
MR UPTON: - at the beginning of the document, and there's no magic in any of that.
HON JUSTICE ROBERTSON: All right. Thank you, Mr Upton. Ms Hughes?
MS HUGHES: If I can deal firstly with the timeframe issue, the Association has submitted to you already that the timetable, the 25 years should end effectively at the date of the inception of the Commission. The purpose for that being is that we understand this Commission's role to be to inquire into practices which have existed in the Police, not into the way that new or current complaints are being investigated, but rather how such complaints were or were not investigated in that 25 year period.
HON JUSTICE ROBERTSON: I don't understand the reason that we would want to curtail ourselves in the exceptional circumstance that something falls into that category. I mean, the difficulty in getting much of the evidence in this case will be memory.
MS HUGHES: Yes.
HON JUSTICE ROBERTSON: If we are dealing with a review of something which has occurred in the last month or six weeks, it doesn't appear to me that that is going to be difficult, and to cut someone off and say, "Your situation cannot be considered", would appear to be unduly and unhelpfully circumscribed.
MS HUGHES: Except, with respect, Sir, that the purpose of the Inquiry is to look into the manner in which such investigations have been conducted. It cannot, in thathistorical sense, be relevant how they are now conducted. If there is a complaint now, it is able to be dealt with in quite a different manner to which what might have happened say 25 years ago, the beginning period of the time in which the Commission is interested.
HON JUSTICE ROBERTSON: Part of what we're to look at is what's happening now.
MS HUGHES: Yes.
HON JUSTICE ROBERTSON: And, presumably, some standard setting if we think that we have any objective advice to offer for the future. I just don't follow - I can't imagine we're going to have a floodgate of material falling into this category but if we are, if there are people who have not previously complained but now do complain, surely the best evidence available to us as to current standards of practice would be how those are investigated.
MS HUGHES: I accept that and I accept that there should not be a volume of such complaints. My concern is to have a clearly delineated period of time in which we are
concerned. The concern should be the focus of the quality of the inquiries made during those times. I mean, perhaps -
HON JUSTICE ROBERTSON: Well, we certainly hear what you're saying on it, Ms Hughes, and we will need to indicate whether we're going to draw a curtain across matters. Clearly, it relates to matters which have occurred in the past.
MS HUGHES: Yes.
HON JUSTICE ROBERTSON: And there is a perfectly respectable
argument for the fact that one could say that if a complaint hadn't been made on D day then you have to ignore the matter. I am just not sure within a Commission of Inquiry setting, whether that is a helpful approach to take but we will respond.
MS HUGHES: Yes, Sir. The point is simply this, that the Police can hardly be criticised for the manner in which they've inquired into such a complaint if they've never received it.
HON JUSTICE ROBERTSON: No, no, but it could well be of great help to us to know how they have inquired into it now they have received it.
MS HUGHES: Of course.
HON JUSTICE ROBERTSON: And that's why I don't understand what general benefit there would be in not getting that material if it were to arise.
MS HUGHES: I guess that leads me to my next point, Sir, in the absence of specific information, I am in the same position as my friend, Ms McDonald, in having to address you in generalities. It would greatly assist the Association if we knew something of the matrix of the complaints that the Commission is receiving so I can provide more specific submissions about any of these matters because at the moment we are operating very much in a vacuum, and I am acutely conscious of that.
HON JUSTICE ROBERTSON: Well, we are all in that together, Ms Hughes, at this stage.
MS HUGHES: Yes, I understand that. We continue to meet in our vacuum and thrash about in that vacuum and do nothing but disturb air.
HON JUSTICE ROBERTSON: No, each of us in our own small corner can be starting to do something to get ready to a point where there is evidence. You know, you are the last person I need to say it to, but this Commission will operate on the basis of evidence.
MS HUGHES: Yes.
HON JUSTICE ROBERTSON: It will not respond to media comments, to campaigns by individuals elsewhere. It will respond to evidence heard in this place, or wherever else we hear, and nothing else, and people writing us long letters with great quotes from newspaper articles, would be better off not wasting their paper. It will have no value or effect at all. Now, the reason that you are in a difficulty, as are Ms McDonald and the Commission, is that we are starting to do material evidence collecting and the Police are able to do a good deal of that at the moment. And once there is material upon which there can be an interest, it will be shared and available to you at the first opportunity.
MS HUGHES: I look forward to receipt of it. If I can deal now with the question of definitions. With one exception, I adopt the submissions made by Ms McDonald in that regard. And my exception is the question of Police activity on the integrity of the Police. It is said that the Commission should not unduly constrain or restrain itself. It's similarly important that the Association members do not find their lives being subject to public scrutiny for legal lifestyle choices unless they impact upon their ability to perform as effective Police Officers.
HON JUSTICE ROBERTSON: But isn't their integrity part of their ability to perform? Are they really two separate things?
MS HUGHES: I think that at some point they must be. All people are entitled to make private lifestyle choices. The issue must be whether by doing so they affect their ability to perform public functions as Police Officers. If, in fact, there can be no linkage between the two, then the Commission, with respect, has no ability to inquire into those private lifestyle choices. The issue must be one of linking those lifestyle choices to the performance of the public duty as a Police officer.
HON JUSTICE ROBERTSON: I think we can agree entirely about that but the issue is whether there is a layer in that which is the integrity of the Police as a result.
MS HUGHES: Yes, and in that regard, that is where I differ from Ms McDonald, in that I would say to you that unless their ability to perform as Police Officers are affected by those private choices, then the integrity of the force is not affected, in the same way that the integrity of any other group of people cannot affected by private legal lifestyle choices that do not affect their ability to undertake their duties.
In the absence of evidence or not -
HON JUSTICE ROBERTSON: I think that is a distinction without a difference, Ms Hughes.
MS HUGHES: You and I will have to agree to disagree in that regard.
HON JUSTICE ROBERTSON: If you could explain to me something which would fall within Ms McDonald's definition of the integrity of the Police, of which that person is a member, which does not impact upon their ability to be a
MS HUGHES: Well, perhaps I can give an example, Sir. Imagine
that a Police officer chooses to engage in cross-dressing, or something of that sort, but continues to be a perfectly effective Police officer. It may be said that that raises some concerns, vis-a-vis integrity, but if it doesn't affect his ability to perform his duties, then it cannot form part of this Inquiry.
HON JUSTICE ROBERTSON: Well, I am grateful for the example and I won't give you an answer as to which side of the line I think it falls.
MS HUGHES: My difficulty is the one I've already referred to, in the absence of knowing the matters that are to be put before the Inquiry, I can't sensibly take the matter any further, other than to perhaps reserve my position that should there be that distinction between a matter of pure integrity and the effectiveness of the force, then I would wish to be heard further.
HON JUSTICE ROBERTSON: Yes. Well, it goes without saying that in an Inquiry of this sort the ability of people to return to any specific area will always be fluid. I mean, it's not like the one chance and the no second bites at the cherry which are appropriate in other parts of the law. I am concerned, Ms Hughes, that you, or your clients, are feeling there's nothing you can do at the moment and it does seem to me that you may well have a wealth of evidence which you could be working on as to instances where Police Officers have been subject to some adverse consequence as a result of behaviour which was not potentially criminal, and that you may, in fact, be a better repository of than anybody else because that information will have had a personal impact. But if we are going to get into this business of, now, are there matters - and it may be to get the definition between you and Ms McDonald that it's necessary - are there matters where no chance of criminal behaviour but it has been treated as somehow requiring consideration because of its possible consequence, whether that be integrity or - integrity of the Department or ability of an individual to do their job.
MS HUGHES: When all is said and done, the concern is that there be an effective Police force that does inquire into such matters in an open and appropriate fashion.
HON JUSTICE ROBERTSON: In which people have confidence.
MS HUGHES: Of course. But how people choose to live their lives is no more of consequence to this Inquiry than another group of people, unless it affects that fundamental ability and, to that end, the issues of morality that might be indicated by the terms of Inquiry, in my submission, Sir, should be limited to the question of an effective, appropriate Police force. I can't take the matter further without knowing the
matters upon which you are going to be asked to consider.
HON JUSTICE ROBERTSON: I think it's fair to say, Ms Hughes that the thrust of what has been said by the three of you this morning and the preliminary views of the Commission are not in a different stream. There undoubtedly may be specific instances which may be raised by one or other of you which another group think are on the other side of the line. And, as Mr Upton sagely said, we are going to have to wait and look at some of this and sees what occurs.
MS HUGHES: Indeed.
HON JUSTICE ROBERTSON: But there is nothing which has been said to us today, and there is nothing on our reading of the plain words of the terms of reference as a whole, which suggests that we are going to maintain a Hart Devlin Mark 2 debate in New Zealand on the behaviour of individual Policemen.
MS HUGHES: That will be of great comfort to the Association members, Sir.
The final matter I need to speak to Your Honour about is the question of representation. The response, as you've seen from Ms Scholtens is to suggest that people so affected could apply for Civil Legal Aid. That, of course, would be an entirely unsatisfactory state of affairs for the Association members who are unlikely to qualify for Legal Aid, which would leave the Association being obliged to support multiple applications for legal assistance to appear before the Commission. At this time, that I am proposing to do is to take Ms Scholtens up on her suggestion and approach the Attorney-General to ascertain whether there is any funding in that regard.
HON JUSTICE ROBERTSON: Well, the position on representation has not altered since we last met. The Commission, as a Commission, does not have a budget out of which it can meet representational costs of anyone. The starting point is that we anticipate that all necessary evidence is placed before the Commission through its counsel. That, as I said before, can be subject to individual discussion as to whether it in some instances may be, and I think the background evidence which the Police are going to have to be putting before us is probably more conveniently going to come in directly through Ms McDonald than it is by being filtered through counsel assisting, but that will be an exception and it can arise if ever and whenever that is
necessary. And I should say that it will be part of the contact between any individual and either our story seekers or counsel assisting in subsequently speaking to people, that people are advised of their entitlement to have their own lawyer present if that is what they want. So, we will ensure that everybody is reminded of that right if they need it. We will operate on the basis that there will be unrepresented people and that it will be Ms Scholtens and Mr Raftery who have to deal with the protection of their position as and when that arises.
We are acutely aware that those persons, against whom there is a possibility of an adverse or critical finding, need to be granted even more consideration and sensitivityby the Commission but if we don't have funds, we can do no more than ensure that people are treated fairly and properly and decently and in accordance with the rules of natural justice before the Commission. It has been drawn to our attention that apparently thought is being given to providing representation for various people. None of that is influenced or motivated by this Commission in any way. It is a matter upon which our advice has not been sought and it is not in accordance with where we see the critical representational issues which might arise, but we will ensure that where people want to have a legal representative alongside them, theywill not be denied the presence of that person, but we are not, having said that, going to turn this into a major adversarial festival in which lawyers will have a free hand simply because they would like to pursue a line of questioning which appears appropriate to them. The question will be whether a line of questioning is of assistance to the Commission in determining a matter that is relevant.
We are sympathetic to those who might need protection and who may not come within the existing rules, but there is no more than that that the Commission can do at this stage. The Commission's great concern will be that there is an even handed approach in respect of any one-off providing of finance which is considered appropriate by Government.
MS HUGHES: Indeed I understand that, Sir. The Association's concern is one of funding. It accepts, of course, that a number of its members will be in that category and will be of interest to the Commission. It is determined to ensure that these people are properly represented. It's a question of whether the Association can generically represent them, whether they require individual representation, and if so, the funding of that individual representation, and these are matters about which I will undoubtedly need to speak to you further in the fullness of time.
HON JUSTICE ROBERTSON: Yes. Well, the door remains open if there are particular problems in respect of which counsel are of the view that the Commission should be expressing some view. You will understand that there must necessarily be a degree of reticence -
MS HUGHES: Of course.
HON JUSTICE ROBERTSON: - because the Commission cannot place itself in the position of asserting, or attempting to assert, an improper influence over a matter which is a decision for someone other than ourselves.
MS HUGHES: And as with the other matters I've spoken to you of, I am confident the whole extent of the problem, if it is that, will become apparent when we receive notice of the matters that the Commission will indeed consider.
HON JUSTICE ROBERTSON: Yes, all right.
MS HUGHES: Thank you, Sir.
HON JUSTICE ROBERTSON: Anyone else present here today who wants to be heard on any of the matters which are before us? Ms Scholtens, is there anything further you want to say?
MS SCHOLTENS: I don't know that there's much further that I can say that's going to assist matters, Sir, given there's been a degree of response between the Commission and counsel as the submissions have been made, save perhaps just to refer to the correspondence that has come in that relates to the issues before us today. Counsel - Mr Mabey –
HON JUSTICE ROBERTSON: Well, I think there are counsel who indicate they have a brief from a number of Police Officers or former Police Officers who are raising this issue of representation and I suspect, more importantly, the funding of the representation. I think they are confident enough that they will get the right to be heard. They are a little more anxious about who is going to be paying for it and we do need to reiterate the simple reality with regard to that position. But I think that is really the thrust of each of those letters, isn't it?
MS SCHOLTENS: Yes, Sir, just save, Sir, the one on behalf of one client he reiterates – his concern is the Commission shouldn't be embarking on any Inquiry into any alleged conduct where his client is still under Police investigation that might be the subject of criminal proceedings. So, there is one person in that category. But, again, it's submitted that it's too early to consider whether the Commission is going to, in fact, be asked to consider matters that are currently under Police investigation. Certainly counsel assisting is going to make inquiries from Mrs Nicholas who makes
allegations in respect of this person but where that then takes us and where the current Police investigations are, is speculation at this stage, and that's perhaps a matter that can be better addressed when and if the Commission is, in fact, about to - or not just about to but proposes to hear evidence that relates to this, then before that happens, representations can be made on that matter.
HON JUSTICE ROBERTSON: It appears to me that that is the appropriate time. There is a fundamental issue which will have to be maintained throughout, that nothing which is done by this Inquiry can be permitted to interfere with, impede or disadvantage anybody in any way in respect of any ongoing criminal investigation and/or subsequent proceeding. The point has simply not been reached at thisstage. The inquiries at this stage relate, not to seeking to find what evidence there might be from individual Police Officers, or former Police Officers, but hearing the stories of people who have an allegation to make.
Now, the problem may become acute at a point where, having heard those stories, having determined what evidence might be called from that side of the fence, there is then a need for someone to start seeing what brief of evidence there is from the other side, and at that point we will need to hear and get the assistance of all of you as to how that is going to be dealt with, and it may be by the time we reach that, there will be some certainty about matters which will provide some direction in any event.
MS SCHOLTENS: Yes, Sir. The only other thing that's perhaps useful to add, is that, as counsel assisting, engaged in trying to ascertain what information might be relevant to the Commission, it is my view that the approach put forward by Ms McDonald seems a reasonable one in terms of looking at matters which have something to do with, or impact upon, public confidence in the integrity of the
Police. It's certainly of some concern that we're not delving around in legitimate private lifestyle choices. It's just at the end of the day it's going to be a question of whether a particular matter on one view comes within matters which do touch on the integrity of the Police or not and that, I guess, is just something we will
have to wait and see.
HON JUSTICE ROBERTSON: You don't wish to offer a view as to the alternative formula that might be used to define whether the word "integrity" is explicit or whether it is implicit within confidence?
MS SCHOLTENS: They do seem to be the same thing to me but, no, I wouldn't want to try to offer a view without some specific fact situations in front of us, and it does come back to that at the end of the day. We are certainly giving impressions of what we think might happen to give some guidance to the Police as they ferret out relevant
information for us and will be as explicit, in terms of our particular requests, when we can be but at this stage all we can give are indications of an approach.
HON JUSTICE ROBERTSON: Yes, all right, thank you for that. Well, on reflection, we may be less confident but my preliminary view is there is not major gulfs between any of you about the areas into which we are going to move and I think so that there is assistance for you, it's better that Dame Margaret and I just take a day or two to put in a form which will stand your subsequent scrutiny, the definitions that you have sought assistance on so that everybody knows where they stand and what we are looking for. But I think the thing that is worth saying now is, this Commission will operate on the basis of actual things that have happened and how they've happened and why they've happened, and will not become immersed or enmeshed in theoretical possibilities and issues of that sort. So, we will provide to you, as soon as may be, a brief response to today's hearing and in the meantime our thanks to all of you for your assistance with regard to those issues.
The Commission will next meet at 10.00 a.m. on Monday the 24th of May and that week will be to receive evidence on the background material. We will not be inquiring into specific instances where there has been complaint and unsatisfying responses to it. That will emerge in the next area. It doesn't seem that there is any reason why we couldn't hear general material though on these other issues where action has been taken with regard to behaviour which was not seen as potentially criminal but did require some action or consequence of some sort. It may be that that is more difficult for you to get within that timeframe but I suspect that we may not need the whole week to be dealing with the other material and it's a pity not to use the time if we can. Ms McDonald, is that a -
MS McDONALD: I will reserve my position on it until I take some firm instructions. My initial response is that may present some difficulties in terms of timing because of my knowledge of where things are at. Can I also indicate that counsel is likely to, receive hopefully this afternoon, the first bundles of material relating to the policy and procedure files. In fact, some of that material was with me this morning but we ran into a small snag because of section 61A of the Police Act which requires the Commissioner to authorise the release of that material. No difficulty with that in principle, it's just that he's not in Wellington until later in the day. So hopefully we will get the first bundle of that material sent across this afternoon.
HON JUSTICE ROBERTSON: Makes for an interesting Easter!
MR UPTON: Presumably, the venue will be here again in May?
HON JUSTICE ROBERTSON: I hope so, Mr Upton. We are looking to see if we can shift a wall to provide a little more room but it would be, from the Commission's point of view and our staff, more convenient if we can operate from this premise. If it is to be otherwise, we will let you know.
There is one other issue which I should just mention, and that is in respect of the interviewing of people in the meantime, that obviously is being done on a confidential basis to counsel, and the issue then of whether there is material which might become evidential will of course require their consent to its disclosure. That is one of the reasons why the Commission itself is keeping away, in case issues arise about a person's unwillingness or lack of desire to actually give evidence. But the fundamental principle of natural justice will apply, that the Commissioners will hear and see nothing which is not available to those who could be adversely affected by it. There may be issues which arise with regard to prohibitions in respect of specific identity in the general arena. We will seek, whenever possible, to meet in public and in a totally open way but there are competing interests which may need to be weighed and assessed at times. Everyone can be assured that there will be no breach of that fundamental requirement, that nobody can be affected by something which they have not had the opportunity to confront and challenge in their own way. Nothing new or different in that, just a simple application of a very fundamental rule.
Very well, we will adjourn until the date in May.
Hearing adjourned at 11.40 a.m.
Last updated: 13/05/2005