In this blog I have subsequently highlighted other incidents (eg here), asking whether training and supervision in the NSW Police is adequate. The NSW Law Enforcement Conduct Commission (LECC) last week released its independent report on the LECC investigation regarding the incident.
The report problematically redacts a copy of the judgment by referring to 'SAN' rather than Attalla and pseudonymises the names of NSW Police personnel who were identified in the District Court judgment. The LECC appears unhappy about the Police responsiveness to its investigation.
Its report states
Shortly prior to the trial in the civil proceedings, the State of NSW conceded that the strip search was unlawful. In the course of the trial, the State also conceded that the continued detention of SAN1C, after he was subjected to a search by Officer SAN4 was unlawful. However, these concessions do not obviate the need for the Commission to consider whether the police committed any serious misconduct in connection with these events.
As has already been noted, Officer SAN4 conducted a strip search of SAN1C at the police station. This involved requiring SAN1C to squat and move his testicles. Certainly, SAN1C had not consented to the requirement but had complied because it was clear that the officer was asserting legal control. Since, however, this procedure was conventional and Officer SAN4 understood that he was acting within his powers the Commission does not consider that, in taking these actions, he had committed any serious misconduct.
A more fundamental objection to the legality of strip searching SANIC is that Officer SAN4 had no proper basis for conducting the search. There was no matter that could have given rise to a reasonable suspicion that the search was necessary. Officer SAN1 had conveyed only that she believed he "might have had something" but not the basis for that belief and it is clear that Officer SAN4 had no independent suspicion, let alone one based on reasonable grounds, that a strip search was necessary. He acted at the direction of Officer SAN1 and also, it seems likely, in accordance with the general rule at the time applying in the Kings Cross Police Station that persons brought into custody were to be strip searched. In light of that rule the Commission is not minded to make a finding of misconduct against Officer SAN4, although his conduct of the strip search at Officer SANTs direction was not, as he should have known, authorised by his LEPRA powers.
Although Officer SAN1 had not herself conducted the search, it is clear that it was conducted at her direction. There was no legal basis for the direction. Considering the circumstances as a whole, the only reasonable explanation was that it was instituted to humiliate SANIC for his non compliance with her earlier unreasonable directions and Officer SANTs indifference to the legal limits on police powers, of which she was only vaguely aware. This conduct was a serious breach of her duty.
The Commission was originally concerned that the litigation was not conducted in accordance with the model litigant policy (see Annexure). The Commission is satisfied that there is no basis on which to find that the NSWPF, did not act in accordance with that policy.
As noted, an investigation of the complaint was declined by Officer SAN7 as he relied upon s 132(g) of the Police Act 1990, concluding that the issues had been canvassed during the civil proceedings. As he acknowledged, in hindsight, that decision was not appropriate (see par. 4.76). It is now accepted by the NSWPF that the mere fact of civil proceedings cannot be a ground, unless the circumstances are exceptional, for declining to investigate misconduct information. It is obvious that, whilst civil proceedings might resolve issues between the State of NSW and a plaintiff who has sued because of unlawful police conduct, it will do nothing about the officers' responsibility for that conduct and the duty of the Commissioner to deal with it. This is even more so when it is appreciated that by far the majority of such litigation is settled before judgment. At every point, the NSWPF failed to appropriately respond to the SAN1C decision. Officer SAN7 agreed that the SAN1C decision should have been brought to the attention of the subject police officers and discussed with them as they were otherwise none the wiser as to their conduct. The Commission is satisfied that the NSWPF has since taken measures to educate and train their officers as to their powers by way of regular email updates, stickers and on-line training. In addition, training involving practical case scenarios has been implemented. The Commission has recently addressed this issue in its report to Parliament: "Review of the NSWPF Standard Operating Procedures for Strip searches in Custody, January 2020" which was made public on 13February 2020. The Commission is satisfied that the NSWPF is presently taking measures to address the Commission's concerns about its training and education of officers in this regard.The report notes
The judgment of the Court raised the following issues:
(i) A person, going about his daily business, was unlawfully arrested and subjected to the degrading ordeal of being strip-searched, during which he was asked to lift his genitals and to squat and cough, in significant part because he chose to exercise his legal rights and protested against the actions of police.
(ii) The conduct of the defendant in the civil proceedings, particularly because of the concessions made so late in the day, giving rise to the following finding by the Court, "Although the State made concessions about the lawfulness of the continued arrest, the belated and limited nature of those concessions meant that SAN1C was forced to undertake litigation with its concomitant stress, worry, time and cost, to establish that which the State eventually conceded."
(iii) What, if anything, flowed from the decision in the proceedings in so far as training and education of NSWPF officers? Did the NSWPF bring the decision, which was very critical of the actions of the involved police officers, to the attention of those officers so that they might learn from their mistakes and not repeat them in the future? Was further training in police powers provided to those officers? Was the decision a catalyst to provide more comprehensive and specific training in police powers under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and was it included in any such training?
The Commission decided that the conduct of the involved NSWPF officers and the NSWPF itself was of such concern that it warranted investigation
