2. Standards and Procedures for Complaint Investigations

2.3 I was referred to several different policy documents that would be relevant to the investigation of a sexual assault complaint against a police officer or police associate, in particular,

2.4 To assess the adequacy of these, as required in the terms of reference, it is necessary to understand how they have developed over the period of time on which the Commission is focusing. It goes without saying that any assessment of the adequacy of police investigations carried out 26 years previously needs to take account of the policies that were in place at that time. Moreover, it must be acknowledged that, from time to time, the police have themselves found those policies to be inadequate and have amended and updated them. (Whether or not these policies were in fact followed by police officers carrying out investigations of alleged sexual misconduct by fellow officers or police associates is a matter that will be addressed in Chapter 3.)

2.5 Answering the questions posed by terms of reference (1)(a) and (1)(b) necessarily involves first examining in detail a very large body of general material, including legislation, regulations, written policies, manuals, and other documents relevant to the way front-line policing is governed. All of these have been subject to change over the past 25 years, sometimes by replacing old standards with new ones, but more often by adding more detailed guidelines on particular points to the existing instructions. On some occasions, standards and guidelines have been issued as new material, despite the fact that they include no changes in substance.

2.6 The chapter therefore describes the following matters:

2.7 I have attempted to simplify and summarise the relevant material, but even so I believe the complexity of this chapter of the report demonstrates both the complexity of the task of policing and the unfortunate tendency for it to become excessively rule-bound. In their submissions and evidence neither the police nor any other party attempted to summarise and analyse the significant body of relevant policies and procedures, presumably because of the enormity of the task. To presage my conclusion with respect to item (b) of this term of reference (whether any standards are adequately communicated to members of the police), it seems to me beyond the capability of any system of communication to ensure that more than 10,000 staff are adequately briefed on such a large volume of instructions.

2.8 There are no formal police standards, procedures, and policies regarding the identification of associations between police officers and alleged offenders, or for the conduct of the resulting investigations. Instead, the investigation of allegations of criminal offending, including allegations of sexual assault, by police associates follows the same process as any investigation of offending. Identification of an association between an alleged offender and the police is governed by general requirements involving the independence of investigating officers and, in particular, the avoidance of conflicts of interest, although the existence of such an association may require special steps to be taken to ensure that the investigation is (and is seen to be) fair and objective.

2.9 These and other matters relating to police associates are discussed in Chapter 3 in the specific context of independence.

2.10 The police provided me with extensive documentary evidence of police investigations into complaints that were of interest to my inquiry. The Police Complaints Authority (PCA) also provided files relating to certain police investigations.

Number of complaints

2.11 There was difficulty in trying to reach agreement about the exact numbers of complaints before the Commission. Through Operation Loft the police identified 185 records of investigations into sexual assault allegations against police officers and 43 files recording investigations into sexual assault allegations against associates of the police that fell within my terms of reference. On examination I found that 26 of the 185 files contained allegations made by more than one person against a police member, 20 contained allegations made by one person against more than one police member, and four contained allegations made by more than one person against more than one police member. (16) Looked at in this way, the figure of 185 is potentially misleading. By this I do not seek to imply that the police have tried in any way to try to mislead the Commission. (As noted in footnote 8, I have had much assistance from Detective Superintendent Malcolm Burgess and Detective Inspector Angela Gallagher throughout my inquiry.) However, the figure is potentially misleading because it is in danger of misleading the police themselves. If, for example, the number of police members against whom sexual assault allegations were made is counted the total is 222. On the other hand, if the number of people who had made statements alleging sexual assault by a police officer is counted the total is 262.

2.12 On whatever basis the figures are calculated, for management and best practice purposes the figures need to be as exact and discriminating as possible. Although it might not be inappropriate to describe a single investigation into the activities of officer A and officer B with three women as “one file”, for management purposes it is important to capture in the statistics the fact that this one file was three (or possibly more) separate complaints about two separate officers.

2.13 I consider the clearest method of determining the number of complaints that I have reviewed is to count both the number of complainants and the number of police officers complained about. For example, where a complainant complains of sexual assault by three members of the police each complaint is counted separately although they may have been investigated as a single allegation. Similarly, where more than one complainant complains about the actions of the same police officer each complaint is counted separately. Viewed this way I have reviewed 313 complaints of sexual assault against 222 police officers that were made between 1979 and 2005.

2.14 In order to provide as full and as accurate a set of statistics as possible for senior management within the police, I have recommended that New Zealand Police develop its databases accordingly (see recommendation R8).

Complaints against police associates

2.15 The number of complaints against associates of the police can also be described in a variety of ways. In total, 59 complainants made 61 allegations against 43 associates of the police between 1979 and 2005. I have treated this as 61 sexual assault complaints against police associates that fell within my terms of reference.

Outcomes of complaints

2.17 The term “not upheld” requires some clarification. The definition used by New Zealand Police says, “The investigation does not sustain the complaint, or establishes that the acts complained of did occur but were justified.” (17) In effect this means there is insufficient evidence for the complaint to be upheld to the standard required to take criminal or disciplinary action. (18) It does not necessarily mean that the allegation was false or had no substance.(19) Detective Superintendent Malcolm Burgess described to me a “continuum” of complaints:

2.18 I comment on the adequacy of this classification approach below.

Outcomes of complaints against police associates

2.19 The complaint outcomes of the 61 complaints of sexual assault by associates of the police that I reviewed were as follows:

2.21 My first concern relates to the clearance classification codes that are specified in general instruction IA 114: upheld, not upheld, conciliated, or withdrawn. Although the meaning of “upheld”, “conciliated”, and “withdrawn” are readily apparent, the term “not upheld” needs clarification. General instruction IA 114 defines “not upheld” as “The investigation does not sustain the complaint, or establishes that the acts complained of did occur but were justified.”(25) This clearance classification is unsatisfactory because it includes complaints that are likely to be true but for which there is insufficient evidence to meet the required standard of proof for disciplinary or criminal charges.

2.22 The police emphasised that, regardless of the formal outcome of a complaint, they are always alert to conduct that might require comment or intervention.(26) Despite this I am concerned that the clearance classification does not necessarily fairly reflect whether or not poor behaviour has occurred, which should prompt action from a human resources management point of view, even if no criminal or disciplinary charge is progressed.

2.23 Secondly, I have real concerns both about the number of complaints of sexual misconduct made against police members, and the number of complaints (141 of the 313) regarded as containing sufficient evidence on which to lay criminal charges or undertake some form of disciplinary action. Although not all of these allegations were proven, I am concerned about the effect they would have had on the organisation. I am aware from my time as chief executive of large Government organisations that certain behaviours by staff members (even a tiny proportion of staff) are a serious threat to an organisation. This is especially the case where staff deal with members of the public in situations where they are vulnerable, and where the integrity of the members, and the perceptions of that integrity, are paramount to delivering a professional service, as in the case of New Zealand Police.

2.24 The police submitted that it is important not to draw conclusions from the raw number of complaints received, without recognising that the nature of policing is “likely to give rise to larger numbers of complaints, and in particular larger numbers of meritless complaints, than might otherwise be expected”.(27) I agree that policing by nature involves a very high degree of community interaction; the exercise of a coercive function capable of arousing antagonism; and routine contact with both vulnerable and disturbed members of the community, as well as criminals. I accept that there will always be false complaints and the police will always be vulnerable in this regard. However, in my view the number of sexual misconduct complaints against police officers, in conjunction with the number of complaints that were seen to justify some form of action being taken by way of criminal or disciplinary charges, is significant enough for the Commissioner of Police to need to be alert to the potential risk to the reputation of New Zealand Police. The figures demonstrate how important it is that the Commissioner of Police not only ensure that all complaints are taken seriously and investigated thoroughly but also provide clear guidance to his or her staff about the high standards of ethics, integrity, and conduct that are expected of police members. (I deal with this matter in more detail in paragraphs 6.101 to 6.136.)

2.25 The standards, procedures, and policies within which the police operate are voluminous and complex. In the course of their work (including the investigation of sexual assault complaints against police officers and associates) police officers are required to follow and be guided by the instructions contained in a formidable array of documents. These are set out in Table 2.1 below .

2.26 The police hierarchy of procedure, policy, and guidelines is headed by statutes:

2.27 General instructions are the primary operational and administrative documents that govern day-to-day policing. They may be issued from time to time by the Commissioner of Police pursuant to section 30 of the Police Act 1958, and all members of police are bound to “obey and be guided by” those instructions.(28)

2.28 The Office of the Commissioner may also, from time to time, issue commissioner’s directives and policy pointers. These policy documents are subordinate to general instructions and take the form of detailed instructions on a specific issue. In the past, commissioner’s directives and policy pointers were known as commissioner’s circulars and headquarters circulars, and had a life span of two years unless renewed or reissued. Under regulation 5 of the Police Regulations 1992 all members are also required to “obey and be guided by” these documents.

Table 2.1: Hierarchy of police policy and procedures

2.30 Within each police region or district, commanders have the authority to issue standing orders applicable to all their staff.(32) Region orders became obsolete on 1 January 1999 when the restructure of management levels within police abolished the regional tier of management.(33) District orders, however, continue to be used as a means of ensuring consistency of practice within a particular district. The purpose of a district order may be to reinforce a particular aspect of general instructions, or a district may develop its own policies in response to a specific local policing need. It was suggested to me that, given the quantity of general instructions, district orders are considered easier for managers to “get their heads around”. (34)

2.31 Police members working within a particular police station are also expected to comply with relevant station orders and guidelines. District Commander Grant Nicholls explained the difference between district orders and guidelines: “The guideline is more focused on the frontline perhaps as an aid to assist good practice. The District Order is more focused on the management, … at Area Commander level, to ensure absolute compliance.” (35)

2.32 District Commander Nicholls told me that there should be consistency between district orders, guidelines, and general instructions, and that district commanders should ensure that the district order or guideline is not in conflict with relevant general instructions.(36) According to Superintendent Trappitt, districts are regularly audited by the Office of the Commissioner, and report constantly on local initiatives and performance.(37) It is not apparent if this audit includes a review of district orders to ensure consistency with general instructions.

2.33 It is apparent, however, that there is no mechanism to ensure that there is consistency in policy instructions between police districts. Although district commanders meet regularly and can exchange ideas, and the Organisational Performance Group encourages districts to share best practice,(38) each district commander has the discretion to choose what orders or guidelines he or she promulgates and the form of those orders or guidelines.

2.34 In addition to formal policy documents, the Office of the Commissioner publishes manuals of instruction giving practical advice and guidance for dealing with specific crimes or incidents. The manuals were initially printed in hard copy as the Constables Manual, the Manual for Detectives, and the Operations Manual.

2.35 These manuals were progressively developed in the late 1980s and 1990s into one set of manuals, referred to as the “Manual of Best Practice”.(39) General instruction P075, reissued in 2002, directs that all members of police “should comply with the instructions laid down” in the Manual of Best Practice.(40) The manuals were designed to reduce the number of general instructions in existence and to provide general advice on the law and on the appropriate methods for investigation or management of crime, incidents, or other occurrences.(41) There are currently five volumes governing major operations, investigation support, investigation, traffic, and human resources.(42) I received Volume 2 (Investigation Support) and Volume 3 (Investigation) as relevant for my inquiry. Together these two volumes comprised around 1,900 pages.

Adequacy of this system

2.39 This tendency was also confirmed by Acting District Commander Gavin Jones:

2.40 This type of practice extended to some of the police responses to the work of this Commission. For example, in evidence given to the Commission in November 2005 Police Commissioner Robert Robinson said that, in response to concerns about the procedures for appointing suitably qualified and impartial officers to investigate complaints, he intended to issue a directive to district commanders that they consult the National Manager: Professional Standards before making appointments (except in cases addressed by the District Complaint Resolution process). (45) Similarly, in response to concerns I expressed about the lack of a policy governing inappropriate sexual relationships between police officers and persons with whom they come into contact in the course of their duties, I was informed that Police Commissioner Robinson had decided there should in future be a direction to all officers on this topic.(46)

2.41 The current system of standards, procedures, and policies needs to be overhauled for the following reasons:

2.42 The police have acknowledged that the current system is unsatisfactory, and in early 2005 established a Corporate Instrument Review Project to assess the way that policies are developed and the way the policy and corporate instrument documents fit together, with the aim of developing a standard policy framework. One of the principal objectives of this project is to ensure consistency across the whole range of police corporate documents and, as part of the project, any conflicts between existing policies will be identified and resolved. I was informed that setting up the new policy framework would take up to three years, and the ongoing review and updating would continue indefinitely.(48)

2.43 The police are to be commended for taking this initiative after the Commission of Inquiry into Police Conduct brought into sharper focus the need for a review of police policies.(49) In my view it is vital that front-line police officers receive clear and unambiguous policy directions, and are able to quickly access and understand key policies about how to carry out their duties.

POLICY DOCUMENTS REGARDING INTERNAL INVESTIGATIONS

2.44 The development of policies regarding internal investigations since 1979 can be divided into four phases:(50)

2.45 During this period a complaint concerning the behaviour of a member of the police was received and dealt with either by the police under instructions issued by the Commissioner of Police, or by the Ombudsman, who could receive complaints of misconduct or complaints related to the way police handled an original complaint.(51)

2.46 Concerns regarding the manner in which the police were conducting internal investigations were evident as early as 1978, when the police commissioner issued a commissioner’s circular with instruction on complaints against the police:

2.47 The circular noted three key points giving rise to criticism:

2.48 The police commissioner gave the following directions:

2.49 On 4 March 1980, a commissioner’s circular confirmed that members of the police who offended against the criminal law were to be treated no differently from the general public, and in the absence of substantial reasons to the contrary, the matter should be dealt with in the criminal courts. (53) The circular also provided that where the matter was actionable both in the criminal court and under the Police Regulations, it was to be referred to the then Police National Headquarters for a decision to ensure consistency of approach.

2.50 In July 1980 Deputy Commissioner Thompson issued a headquarters circular providing further policy direction to members of the police executive. The circular was prompted by continuing problems in the investigation of complaints against police members. It noted the principal faults with the handling of complaints against the police:

2.51 In order to rectify this situation the circular placed greater responsibility on district commanders, suggesting that they institute a system

2.52 The circular acknowledged that in some cases, particularly the more serious ones, it might be desirable and necessary to have an investigation conducted by staff from outside the district where the event was alleged to have occurred. But as a general rule the deputy commissioner did not believe that there were any valid reasons why this should occur; instead what was required was a more professional approach.

General instruction D129 regarding internal investigations

2.53 The first general instruction regarding internal investigations that fell within the time period of interest to my inquiry was general instruction D129, issued in October 1980.(55) It specified that individuals making complaints were to be treated courteously, and were not to be referred to another station except where the member being complained of was the only available person. The complaint was to be taken down in writing, a copy of which should be forwarded to the district commander.

2.54 Upon receipt of the complaint the district commander was directed to notify the police commissioner if it amounted to a serious breach of conduct; take a personal interest in the progress of the inquiry; and ensure that the inquiry was handled at the correct level and expeditiously. What constituted a serious breach of conduct was not defined in the general instruction.

2.55 General instruction D129, adopting the policy formulated in the commissioner’s circular of 4 March 1980, directed that the file be forwarded to the police commissioner if a decision was required as to whether criminal or disciplinary charges were to be laid. However, there was no requirement that an investigation be reviewed by headquarters in other circumstances.

2.56 The general instruction set out the principles and procedures to be followed by the member assigned the inquiry. In particular, it directed that the matter be afforded due priority and a weekly progress report made to the district commander, that statements were to be taken from witnesses except in relation to minor matters where job sheets would suffice, and that the member under investigation should not be shown the file but should be interviewed about the matter.

2.57 General instruction D129 noted that although the character of the complainant might be an issue, it should not override the need to have the complaint properly investigated, and it directed that no pressure or suggestion be made to the complainant to withdraw the complaint.

2.58 It also provided that members should not investigate complaints about matters in which they were personally involved unless they were of a minor nature that could be resolved quickly.

General instructions J80–J89

2.59 General instructions J80–J89 replaced general instruction D129 in April 1981. General instructions J80–J89 provided comprehensive guidelines for the investigation of complaints against members of the police and included a direction that such investigations be conducted thoroughly and fairly.(56)

2.60 General instruction J80 acknowledged that complaints could provide a useful measure of police performance and directed that every reasonable effort should be made to resolve complaints as soon as practicable. It also noted, adopting the wording of general instruction D129, that although the character of the complainant might be an issue, it should not override the need to have the complaint properly investigated.

2.61 General instruction J83 directed that the complaint was to be brought, as soon as practicable, to the attention of the commissioned officer on duty, and should be forwarded promptly to the district commander with a report indicating the action already taken.

2.62 General instruction J84 set out the district commander’s responsibilities regarding a complaint against the police, including sending a written acknowledgement to the complainant, appointing a member at an appropriate level to conduct or supervise the inquiry, and taking a personal interest in the progress of the inquiry.

2.63 General instruction J84 also gave the district commander the ability, if he or she were satisfied that an allegation was vexatious or groundless, to direct that the allegation not be investigated further.

2.64 General instruction J85 set out the responsibilities of the officer charged with conducting the inquiry. Of particular note are paragraphs (4) and (5). The former said that the officer should not pressure a complainant to withdraw a complaint. Paragraph (5) directed that, where practicable, the officer should endeavour to resolve complaints made because of misunderstanding by discussing the matter with the complainant.

2.65 As with the earlier general instruction, members were instructed not to investigate complaints about matters in which they were personally involved, unless the complaint was of a non-serious administrative nature.(57)

2.66 In 1981 Police Commissioner Walton became concerned that some members had adopted a practice of automatically warning people who wished to make a complaint against the police of the consequences of making a false complaint, even where there were no reasons for believing that a particular complaint was false.(58) The police commissioner therefore directed that unless there were reasonable grounds for believing that a complaint was false, complainants should not be warned of the consequences of making a false complaint because such a warning could discourage people with a genuine complaint, or could be seen as intimidation of complainants.

2.67 In the early 1980s Police National Headquarters adopted a new practice of centrally recording all serious allegations against police members. This required police districts to notify the Deputy Commissioner (Administration) of all serious allegations. These were entered numerically on a district basis in a special system in the national headquarters records, known as the serious allegations against members (SAAM) system.(59) General instruction J81 (1) defined serious allegations as

2.68 Although headquarters had to be notified of all serious allegations against police members, it was not considered necessary for a completed investigation file to be sent to the Deputy Commissioner (Administration) unless he or she so directed. The final review of the file and the decision whether or not to prosecute remained the responsibility of the district commander.

2.69 The results of the first 18 months’ operation of the SAAM system revealed a higher number of complaints than anticipated; a preponderance of complaints of excessive force; the prevalence of certain bad practices, such as a form of strip-searching in public; and that some members were featuring on more than one occasion.(61)

2.70 A canvass of all districts showed, however, that in 1982 the creation of an internal affairs section to conduct inquiries into complaints against the police was generally not wanted. Police Commissioner Walton appears to have agreed with this, because he directed district commanders to

2.71 With effect from 1 January 1983 general instructions J80–J89 relating to internal investigations were revised.(63) Although the substance of these instructions remained largely unchanged, the 1983 revision saw the police commissioner’s earlier direction that members were not to warn complainants of the consequence of making a false complaint brought into the general instructions. The commissioner’s circular detailing the changes recorded the procedure regarding a new central register of complaints against police to be maintained in the Personnel Directorate at Police National Headquarters. For the purposes of the register, complaints were defined as serious allegations (as defined by general instruction J81 (1)) or misconduct (as referred to in general instruction J90), as well as any complaint from a member of the public about a member of the police that, in the view of the district commander, warranted inclusion in the register.

2.72 District commanders’ obligations under the revised general instructions were also enhanced. General instruction J85 directed district commanders to forward a copy of a complaint to the Deputy Commissioner (Administration) within 48 hours of receipt of the complaint; and to refer complaint files to the Deputy Commissioner (Administration) for a decision on whether or not to proceed with a prosecution where the complaint file evidenced

2.73 The 1983 revision of the general instructions relating to internal investigations also introduced processes for dealing with any person who might have made a complaint while in custody; complaint clearance codes to bring consistency into the coding of resolutions; refined processes for classifying complaints as serious or non-serious matters; and the category of discrimination as a type of serious allegation.(65)

2.74 I was told by Superintendent Stuart Wildon that, as a result of “dissatisfaction with the way that Police handled complaints arising from the 1981 Springbok Tour”, a national Internal Affairs section was established in 1983.(66) There was initially some confusion regarding the interface between the new Internal Affairs section and the police districts. As a result, Police National Headquarters published a circular in June 1984 providing guidelines clarifying district commanders’ powers and ensuring consistency in the way they were exercised.(67) The circular set out the circumstances in which it was appropriate to deal with offending by sworn members by way of criminal charge, when recourse to an internal charge might be more appropriate, and when a warning might be appropriate.(68)

2.75 The circular directed that police members were to be treated no differently from the general public with regard to the discretion to arrest or charge. This included treating the police no more stringently than members of the general public. However, the circular also noted that some offences that might be quite trivial when committed by a member of the public might be quite serious when committed by a member of the police.

2.76 The circular reiterated that the decision to prosecute or to lay disciplinary charges rested with the district commander within whose jurisdiction the offence was alleged to have been committed. If in doubt the district commander could seek the opinion of or advice from the Deputy Commissioner (Administration) or his senior staff.

2.77 Some police regions issued their own orders confirming the circumstances in which serious matters had to be reported to the regional commander. I was referred to a region order, published in Region 3 in 1988, that stressed the importance of the regional commander being advised of serious occurrences, incidents likely to cause embarrassment to the police, and matters of staff welfare in which the regional commander might wish to initiate a personal response. Specific matters in which reporting to the regional commander was mandatory included complaints against police members alleging a criminal act, or complaints likely to bring the district’s police generally into disrepute.(69)

Internal investigation policies, 1989–1994

2.78 The second phase in the development of policies on internal investigations begins with the establishment of the Police Complaints Authority. The concept of some form of civilian oversight of the police was first considered as a result of ongoing public debate on the outcome of police internal inquiries. In 1985 the Minister of Police on behalf of the Government distributed a discussion paper setting out a series of alternatives for dealing with complaints against police. (70)

2.79 An officials committee chaired by Sir David Beattie was established in 1986 to “prepare a draft Bill relating to the concept of an Independent Examiner of complaints relating to the Police.” (71) This draft bill was subsequently adopted by the Government with only minor amendments and was enacted as the Police Complaints Authority Act 1988 (PCA Act) on 10 March 1988. The PCA came into operation on 1 April 1989.

2.80 The PCA was set up as an independent civilian oversight body tasked with ensuring, amongst other things, that complaints against members of police were dealt with satisfactorily. As Rt Hon Sir Geoffrey Palmer stated when introducing the second reading of the Police Complaints Authority Bill:

2.81 In 1989 the PCA had jurisdiction only over complaints against sworn members of police. Civilians working within the police were members of a public service organisation called the Police Department, which was considered a separate organisation from the New Zealand Police. (73) The Police Amendment Act 1989, which took effect on 1 March 1990, disestablished the Police Department and introduced non-sworn members as a new category of police employee. At this time the term “civilian” was replaced with the term “non-sworn”. From this point, every reference in the PCA Act to “member of the Police” was read to include non-sworn police employees.(74)

General instructions P281–P292

2.82 As a result of this new statutory development described above, some amendment of general instructions was required. Accordingly, in the week before the establishment of the PCA, the police issued general instructions P281–P292, which gave effect to the new complaints investigation procedures required by the PCA Act. (75) These instructions were promulgated without any opportunity for comment from the newly constituted PCA. However, they were to a large extent merely a reproduction of earlier general instructions relating to internal investigations, the only notable changes being

2.83 Later that year the Commissioner of Police had to issue further directions regarding the interface between the police and the PCA. On 17 August 1989, the police commissioner clarified lines of responsibility for advising a complainant of the final disposition of a complaint against the police. Where a complaint was made directly to the PCA, letters advising the complainant of the result were to be sent from the PCA’s office. Where the complaint was made to both the PCA and the police (and/or the Minister), letters should be sent from each organisation.(80)

2.84 My attention was drawn to Tauranga District Order 89/4, promulgated in 1989, as an example of a district order giving advice on standardising the preparation of the final report into complaints against the police.(81) It directed that the following headings were to be used: Introduction, Complainant(s) and the complaint, Member(s) complained about, Witnesses/independent witnesses, Reconciliation, Matters which cannot be resolved, Matters of law, Conclusions, Recommendations. The order also noted that witnesses who are other police members could not, as a general rule, be treated as being any more independent than an associate or friend of a complainant. It was not apparent from the documents provided to me whether other district commanders created similar orders.

Revision of general instructions P281–P292

2.85 At a meeting of the Police Executive in 1991 the Deputy Commissioner of Police introduced an internal paper for discussion regarding criticisms from the PCA over the standard of some internal investigations. The principal criticisms were listed:

2.86 General instructions P281–P292, dealing with complaints investigation, were subsequently revised, extended, and republished on 15 May 1991. Among other things the new instructions included

2.87 In 1992 the Crown Law Office issued prosecution guidelines for Crown solicitors. These guidelines are also relevant to police and provide significant assistance as to the factors that should be taken into account when exercising the discretion to prosecute. According to the guidelines there are two major factors that a prosecutor must consider before deciding to initiate a prosecution: evidential sufficiency and the public interest. Evidential sufficiency requires, first, “admissible and reliable evidence that an offence has been committed by an identifiable person” and, secondly, that the evidence is “sufficiently strong to establish a prima facie case”. An assessment of the public interest will vary depending upon the circumstances of each case. According to the guidelines, “A dominant factor [in making this assessment] is that ordinarily the public interest will not require a prosecution to proceed unless it is more likely than not that it will result in a conviction.”(89) These guidelines continue to govern police exercise of the discretion to lay charges against a suspect today.

2.88 The third phase in the development of policies on internal investigations can be dated from 10 November 1994 when the Commissioner of Police and the Police Complaints Authority signed a memorandum of understanding defining the working relationship between police and the PCA in relation to incidents of serious misconduct or serious neglect of duty that were reported by members of the police (that is, by colleagues of the officer concerned, rather than by the alleged victim or a third party). (90) According to the memorandum, when any serious misconduct or any serious neglect of duty was reported, the police commissioner should notify the Authority as soon as practicable. Serious misconduct or neglect of duty was defined as conduct that constituted a criminal offence, or was of such significant public interest as to put at risk the reputation of police. This memorandum remains in effect today.

2.89 A substantive revision of police general instructions relating to internal investigations was undertaken in 1995, and general instructions IA 100–IA 132 replaced general instructions P281–P292 on 28 April 1995.(91)

2.90 General instructions IA 100–IA 132 remain in force today. Although they were reissued in 2002, this was a change in format with only one substantive change to the content of the instructions.(92) Therefore, although many aspects of these general instructions are similar to earlier instructions, I have set out what they provide in detail in order to assess their adequacy in today’s environment.

2.91 The general instructions draw internal investigation and disciplinary procedures into a consolidated set of instructions. They are divided into six sections: an introductory section; a section setting out the complaints procedure for internal investigations; a section outlining “District Complaint Resolution” procedures; a section outlining the disciplinary procedures; a section outlining the whistle-blower protection process; and an administrative section. These are summarised below (paragraphs 2.92 to 2.119). There is also an annex containing a copy of the 1994 memorandum of understanding between the police and the PCA, referred to above.

Part I: Introduction

2.92 The introductory section outlines two essential themes underlying these general instructions, which are to be administered by the officer in charge of Internal Affairs at Police National Headquarters (now known as Professional Standards at the Office of the Commissioner):

2.93 General instruction IA 101 recognises that the most critical asset of New Zealand Police is its reputation. It is the duty of every member of the police to promote and defend the police’s reputation. This is achieved by setting high professional standards and demonstrating to the public, through a willingness to be held accountable for breaches of those standards, that the police deserve the public’s trust and confidence.

2.94 The primary objective of an investigation is said to be to ensure that both the complainant and the member under investigation believe that they have been treated fairly.(96)

Part II: Complaints Procedure

2.95 The procedure for the investigation of complaints against police members is set out in general instructions IA 103–IA 118.(97)

2.96 General instruction IA 103 sets out the requirements of the PCA Act and police obligations under the 1994 memorandum of understanding. It notes that the PCA Act does not prevent the police from commencing or continuing any investigation and that it is expected that the police will continue to have the primary complaint investigation role in respect of any complaint or incident.

2.97 The general guidelines for receiving complaints against members of police are set out in general instruction IA 104. This instruction sets out the obligation on the police to receive a complaint against a member of police when a complainant first approaches the police. According to this instruction the complainant should not be asked to return or call another day to deal with some other staff member or section. Nor should the complainant be referred to another station except where the member complained of is the only person readily available to take a complaint. In these circumstances a brief report should be submitted to the district commander.

2.98 In order to obtain an accurate record of the complaint, general instruction IA 104 directs that a complaint that is made orally is to be reduced to writing and signed by the complainant as soon as practicable. If the matter is not a complaint but an expression of dissatisfaction, then every effort should be made to resolve it by means of an explanation to the satisfaction of the inquirer.

2.99 The police recognise in general instruction IA 104 that a complainant may experience difficulties in making a complaint to the police. To manage this situation, police members are directed to advise any complainant who is unable or reluctant to call at a police station that arrangements could be made to take the complaint elsewhere.

2.100 The general instructions inform members of police that a complaint can be recorded in the presence of the complainant’s solicitor, friend, or relative if the complainant wishes. (This instruction, I presume, is also designed to make it easier for a complainant to make a complaint. However, there is no requirement that the police inform the complainant of his or her right to have a support person present, which, it seems to me, defeats the purpose of this instruction.)

2.101 General instruction IA 104 also places obligations on members of the police to ensure that the complainant is appropriately treated:

2.103 When a complaint has been received, police members are directed to refer the complaint as soon as possible to a supervising commissioned officer. The commissioned officer will issue appropriate instructions where any matter requires early attention and will ensure the file reaches the district commander, who, in turn, will arrange to notify the PCA.(98)

2.104 District commanders, supervisors, and investigators are encouraged to consult with the Internal Affairs section and the PCA if they require guidance at any stage of a complaint investigation.(99) Consultation with the PCA is to be facilitated through the officer in charge of Internal Affairs.(100)

2.105 General instructions IA 108 and IA 109 set out the district commander’s responsibilities:

2.107 Of significance to the appointment of an investigating officer is general instruction IA 110, which directs that a police member shall not investigate any complaint in which he or she was personally involved (unless the complaint is of a minor administrative nature), nor review his or her own decisions.

2.108 General instruction IA 111 stresses the pivotal role of the investigator in promoting the credibility of the complaints system, and notes that the investigation must be conducted thoroughly and in an unbiased manner to ensure the public’s confidence in the ability of the police to conduct internal investigations. The investigation must address not only the substance of the complaint but also any incidental and material matters (administrative or operational matters) arising in the course of the investigation.

2.109 The investigator’s primary responsibility in the investigation of complaints is to the Commissioner of Police. Thus, even where the PCA has elected to oversee a police investigation, the investigator is obliged to regularly update the officer in charge of Internal Affairs and follow any instructions given by him or her in the course of the investigation.(101)

2.110 Before commencing the investigation the investigator is directed to personally visit or telephone the complainant without delay to, amongst other things,

2.113 General instruction IA 112 states that a complainant wishing to withdraw a complaint must do so in writing. The investigator must be satisfied that the complainant made an informed decision; and shall consider whether there is any evidence of misconduct or neglect of duty, and if so, ensure that the matter is investigated and the appropriate action taken.

2.114 General instruction IA 113 directs that conciliation, where appropriate, should be considered in all complaints. (I note the ambiguity in this instruction, which contains both discretionary (“where appropriate”) and mandatory language.)

2.115 Four clearance classification codes are specified in general instruction IA 114: upheld, not upheld, conciliated, or withdrawn (as mentioned earlier at paragraph 2.21).

Part III: District Complaint Resolution

2.116 General instruction IA 119 sets out the process for resolving minor complaints locally. Only the PCA can decide whether a complaint is a minor complaint to be dealt with in this manner.

2.117 A further discussion of the District Complaint Resolution procedure and practice can be found in Chapter 4.

Part IV: Disciplinary Procedures

2.118 General instructions IA 120–IA 130 set out disciplinary procedures for sworn staff suspected of having committed a criminal offence, or any misconduct or neglect of duty pursuant to regulation 9 of the Police Regulations 1992.(104)

2.119 The non-sworn code of conduct governs discipline of non-sworn members except in relation to duty stand down and the availability of diversion to those charged with an offence.(105)

2.120 A full discussion of disciplinary procedures and practices can be found in Chapter 5.

2.122 In March 2000, the national manager of Internal Affairs (now Professional Standards) wrote to district commanders noting, among other things, new time frames within which internal inquiries should be completed. In particular, he specified that a preliminary report should be submitted within six weeks and the full investigation completed within three months of receipt of a complaint. A complaint classified as appropriate for District Complaint Resolution was to be completed within two months.(106)

2.123 The district commander of Central Police District informed his subordinates of the new requirements in a memorandum dated 29 March 2000.(107) This memorandum noted that, in general, extensions would be contemplated only if there was a reason connected to the availability of evidence, and that a higher priority for internal investigations was now required. It is unclear how other district commanders communicated the new time frames to their staff or if they also considered that a higher priority was now required in terms of internal complaint investigations.

2.124 The district commander of Eastern Police District issued two district orders in June 2000. The first directs that the district commander is to be notified immediately or as soon as practicable about, inter alia, any serious complaints against the police, and any incidents where there is likely to be public (media) attention that will be critical of police actions.(108)

2.125 The second district order provides further operational direction and guidance on internal investigations.(109) The district order reiterates that general instructions IA100–IA132 are to be complied with, and summarises the procedures to be followed. In general the requirements of this district order follow those laid out in general instructions IA100–IA132, with the following differences:

2.127 A desk file was created in 2002 for use by Professional Standards investigating officers, containing standard forms and precedent forms regarding notification of investigation, notification of an intention to report a member to the District Commander (Regulation 12 Notice), specimen charges, duty stand down, proposal to suspend from duty, suspension from duty, reporting to the PCA, and letters accepting resignation.(112) This desk file represents an attempt to ensure consistency in approach between police districts.

2.128 General instructions IA 100–IA 132 were republished (as IA100–IA133) between May and July 2002. As mentioned earlier, these general instructions differ only in format from the instructions that were published in 1995.(113)

2.129 In October 2002, the Professional Standards national manager wrote to district commanders and district complaints managers recording concern about the practice of withdrawing criminal charges in relation to an incident from which an unresolved complaint against an officer has flowed. The letter directed that criminal charges should not be withdrawn in cases where there is a related and unresolved complaint against the police unless the district complaints manager has been consulted.(114)

2.130 On 6 April 2005 the Commissioner of Police and the Authority signed a protocol for cooperation. The purpose of the protocol was to define the working relationship between the Commissioner of Police and the PCA in relation to the investigation of complaints and incidents. The following points were agreed under the protocol:

2.135 The general instructions require that the Professional Standards national manager is notified of every complaint made against a police member as soon as is practicable and is immediately notified of every complaint that is of a serious nature or likely to attract media attention. The Professional Standards national manager reports to the Deputy Commissioner of Police (Operations), who, it is presumed, will then brief the Commissioner of Police. However, there is no direction in the general instructions, nor any of the police policies placed before this Commission, that the Commissioner of Police is to be notified of a complaint and when he or she is to be notified. The only reference to notifying the Commissioner of Police about a serious complaint that I am aware of is the procedure set out in the protocol for cooperation with the PCA, which applies to very few complaints (see Chapter 4). This omission is of particular concern if the allegation could amount to a serious criminal offence or misconduct, or if it is likely to attract media publicity.

2.136 There should be no doubt over whether the Commissioner of Police should be informed of serious complaints, and I was told by the police that the police commissioner is, in fact, informed almost immediately of very serious complaints.(117) Nevertheless I recommend that policy clearly specify the type of complaint that must be notified to the Commissioner of Police immediately, and the type of complaint that must be notified to the commissioner as soon as practicable. This direction should also specify who is to notify the police commissioner.

2.138 There are a number of models used by public service providers, such as a service charter or a code of rights that “uses simple and consistent messages” to inform and empower those using the services and making complaints and help staff understand how they should approach their role.(118) This seems to me particularly important for sexual assault complainants. I believe that the police should introduce something similar whereby the rights of complainants (as contained in the general instructions) are clearly set out in a readily accessible manner. Existing models, such as the Inland Revenue Charter, about which I heard evidence, and the Code of Health and Disability Services Consumers’ Rights, may provide useful guidance.

2.139 In addition to a service charter, I believe it is important that members of the public are able to access information on the complaints process with relative ease. This should be a matter for periodic survey to ensure that there is awareness amongst the general public that there are processes for making a complaint and that they have defined rights when doing so. As a start, it may be helpful for police stations to display large public notices explaining the complaints procedures.

Ad hoc nature of policy development

2.141 I was told by Police Commissioner Robinson that there is a “very formulaic process” involved in amending the general instructions, which involves the police commissioner of the day receiving recommendations to amend the general instructions and then signing them off personally. He also told me that there is no process for automatically updating the general instructions when changes occur that have an impact on them, for instance as a result of new legislation, or changes in policy and practice occurring as a result of a commissioner’s directive.(119)

2.142 Directives issued by the Police Commissioner do not have the status of general instructions. It is also not the practice to update general instructions to reflect directives that have been issued. For example, general instruction IA 108 has not been amended to ensure consistency with Police Commissioner Robinson’s directive of November 2005 regarding the appointment of investigators to internal complaint investigations.(120)

2.143 Directives are placed on the police intranet as policy pointers, and in this way become available to all staff.(121) However, directives are not necessarily addressed to those staff who may be affected by them. Police Commissioner Robinson told me that his directive of November 2005 was couched as an instruction to members of the Police Executive, because they were the only members that needed to comply with it and giving the direction to them would bring about the level of change he wanted. As such, it was also unnecessary to include it in the general instructions until they were next reviewed.(122) I am concerned by this reasoning given the significant involvement of such people as the district complaints managers, area controllers, and supervisors in the management of complaints against police officers. Although general instruction IA 108 specifies that it is the district commander’s decision who to appoint as investigating officer, there are obvious implications for other staff who assist with such matters or have authority to act under delegation. These people should be aware of any changes to policy that may affect their work.

2.144 I heard evidence in other areas that the general instructions tend to be written to address a particular issue, without relation back to other general instructions that exist. I was told for instance by Mr Wayne Annan, New Zealand Police General Manager: Human Resources, that there does not appear to be a rigorous process of aligning the human resources policy with relevant legislation in the human resources area.(123)

2.145 In my view the police need to develop

2.150 Significant public concerns were voiced in the 1970s and early 1980s regarding police procedures when investigating rape complaints. These are evidenced in the police response to criticisms of the Committee on Women to the Select Committee on Violent Offending in 1978, and the report on rape investigations published by the Institute of Criminology at Victoria University of Wellington in 1982.(126)

2.151 The police policy response to these criticisms was by way of a headquarters circular issued to all district commanders and the commandant of the Royal New Zealand Police College on 17 December 1982. The circular said,

2.152 By 1982 rape crisis centres were well established in most New Zealand centres and the headquarters circular recognised the counselling and support services that they provided to sexual assault complainants. The headquarters circular directed police to liaise with their local rape crisis centres to ensure that the police role was carefully explained and understood and also to ensure that local police were aware of the service available from the rape crisis centre. Where necessary police were directed to assist the complainant by making initial contact with the rape crisis centre.

Sexual assault investigation policies, 1983–1986

2.153 A new edition of the Manual for Detectives dealing with serious sexual offending was published in 1983.(128) This manual remained in active use until replaced by the Manual of Best Practice in 1993. (129)

2.154 Like the earlier edition, the 1983 Manual for Detectives set out the elements to be proved for the various sexual offences and possible defences. Further matters relevant to the prosecution of sexual offences were also elaborated on, including the character of the complainant, matters of corroboration, the admissibility of evidence, similar acts, evidence of a wife, and proof of age.

2.155 The 1983 Manual for Detectives clearly indicated that the police had taken notice of public criticisms regarding their interactions with sexual assault complainants, and the new manual included a section on dealing with sexual assault victims.(130) This section recognised that sensitivity was required by police and it directed police officers to respect the complainant and treat him or her with courtesy, decency, humanity, and good manners. This included interviewing the complainant in private with a parent or friend present if so desired; explaining the need for questions; explaining the investigation and court procedures; and advising the complainant of the counselling services available to assist him or her. Investigators were also directed to keep in touch with the complainant throughout the course of the investigation so as to demonstrate that the complaint was receiving all possible attention.

2.156 Although the Manual for Detectives directed investigators to “Accept that the victim is telling the truth …” and not to “be too hasty to conclude that the complaint is false”, it also directed:

2.157 In 1985 the Constables Manual was reprinted. This manual set out the relevant law and elements of the more minor sexual offences of indecent acts and indecent assault. It also described what a constable was required to do upon receiving a complaint of an indecent act or indecent assault: obtaining a statement from the complainant, advising his or her supervisor of the complaint, interviewing witnesses, interviewing the alleged offender, and so on. Regarding indecent assault on females, the Constables Manual also instructed police officers to

2.159 In December 1985 significant amendments regarding sexual offences were made to the Crimes Act, Evidence Act, and Summary Proceedings Act. These changes were communicated to police members on 15 January 1986 through the New Zealand Police Gazette.(133) Of particular importance to the investigation of sexual assault allegations was the enactment of sections 23AB and 23AC of the Evidence Act 1908.

2.160 Section 23AB reformed the law relating to corroboration of the complainant’s evidence. Although it was possible before 1986 for a jury to convict on the uncorroborated evidence of a complainant, judges were obliged to warn juries that it was unsafe or dangerous to do so. Section 23AB of the Evidence Act, as inserted by section 3 of the Evidence Amendment Act (No 2) 1985, removed this requirement and provided that if the judge elected to comment on the absence of corroboration no particular form of words was required.

2.161 Section 23AC dealt with the question of delay by the complainant in making a complaint of sexual assault. Before 1986 it was often argued that the complainant would have complained at the first opportunity if her complaint were genuine. Any delay was said to reflect on the complainant’s credibility. Under section 23AC, however, where such an argument was raised, the judge was able to explain to the jury that there might be good reasons why a victim of such an offence might refrain from or delay making such a complaint.

2.162 A substantial growth in the reporting of adult sexual violation and child sexual abuse offences occurred during the 1980s. To ensure that the police were well placed to deal with the volume of such complex crime the Assistant Commissioner of Police for Crime and Operations issued a headquarters circular on 15 January 1988 designed to give police accurate and up-to-date information to determine trends and develop systems to enhance investigation practices and procedures. To this end, the headquarters circular required a notification to be sent to Police National Headquarters in every case where a sexual violation or sexual abuse offence was reported.(134) A further headquarters circular was issued on 29 July of the same year to all district commanders and the commandant of the Royal New Zealand Police College requesting that they ensure that all police members were aware of the requirements of the earlier headquarters circular.(135)

Victims of offences

2.163 The Victims of Offences Act was enacted in July 1987 to “make better provision for the treatment of victims of criminal offences”. A victim was defined by section 2 of the Act as

2.164 On 29 June 1990 the Commissioner of Police issued a commissioner’s circular regarding the police’s obligations under the Victims of Offences Act.(136) Police obligations, according to the commissioner’s circular, included

2.165 The commissioner’s circular regarding victims of offences was followed in 1997 by a policy pointer setting out the police Victims of Crime Policy.(137) Although the substance of these documents was largely the same, the policy pointer required that the details of victims should be referred to relevant support services as soon as possible after the incident. It also included a direction that district managers ensure local agreements were in place with support agencies to ensure that early assistance was provided to all victims. The relevant support agencies for sexual assault complainants were such organisations as Rape Crisis, HELP, Sexual Abuse Survivors Trust (SAST) and the Women’s Refuge; Victim Support may also function as a support agency for victims of sexual assault.

2.166 In addition to the legislative changes and the police responses to them as described above, other police policies and practices were updated and developed during 1986–1998. I was informed by Superintendent Trappitt that a new Manual of Best Practice was published in 1993.(138) Also, the police policy on investigation of child abuse was published in 1995.

Child Abuse Policy

2.167 A policy pointer, “Policy and guidelines for the investigation of child sexual abuse and serious physical abuse” (Child Abuse Policy), was issued on 1 December 1995. The Child Abuse Policy was developed in conjunction with the then New Zealand Children and Young Persons Services (NZCYPS) (now Child, Youth and Family). It recognises that

2.168 The Child Abuse Policy forms the basis of a joint approach between the police and NZCYPS. Important features of the Child Abuse Policy are

2.169 This is a nationally mandated policy, which is applied consistently across the country and which I consider to work well in practice.

Sexual assault investigation policies, 1998–2006

2.170 Two significant policy developments relating to the investigation of adult sexual assault allegations occurred during the period since 1997: the promulgation of the 1998 ASAI Policy and the revision of the Manual of Best Practice. The ASAI Policy is summarised below.

Adult Sexual Assault Investigation Policy

2.171 In the late 1990s the police prepared a specific policy to govern complaints of sexual assault against adults known as the Adult Sexual Assault Investigation Policy. An early draft of this policy was distributed in 1997. The finalised version was published as a policy pointer on 6 February 1998, and designated a two-year lead-in time to allow police to meet the requirements of the policy.(140)

2.172 The ASAI Policy was developed with the assistance of representatives from medical practitioner groups, counselling agencies, and community groups. It is divided into 12 parts:

2.173 The ASAI Policy acknowledges the destructive consequences of adult sexual assault, that the safety of the victim is paramount, and that perpetrators of adult sexual assault must be held accountable for their actions.

2.174 It directs police to treat complaints of sexual assault as serious criminal matters to be investigated and, when evidence is available, to consider prosecution. Where an alleged sexual assault is reported within seven days of the incident, priority must be given to the investigation of the allegation wherever possible.

2.175 The ASAI Policy recognises that an inter-agency approach to the investigation and management of adult sexual assault cases “will enhance protection of the adult victim, accountability of any offender, and reintegration of the victim into the community.”

2.176 The police response to the needs of the victim is aimed at ensuring early intervention and maximum protection, aiding the victim’s long-term recovery from the trauma, and ensuring the victim’s cooperation with the investigation through to its completion. To this end, the policy directs police to consult with the victim throughout any decision-making process.

“The Police Commitment”

2.177 According to the ASAI Policy the police have four main functions in sexual assault investigations:

2.178 The policy uses very prescriptive language (“shall”, “will”, “must”) to mandate how each of these functions will be performed.

2.179 District managers (now district commanders) are responsible for implementing the ASAI Policy. Importantly, the policy requires district managers to ensure, amongst other things, that front-line and watch-house staff under their control are trained in taking initial sexual assault complaint action and dealing with victims; that there are sufficient and suitable investigation staff who are fully trained in all aspects of the investigation of adult sexual assault; that investigating staff receive supervision from an appropriate non-commissioned officer; and that local agreements are in place with support agencies to ensure that early assistance is provided to all complainants.

2.180 The district manager is also responsible for appointing an adult sexual assault coordinator in his or her district. This person is responsible for liaising with all appropriate local support agencies, police medical officers, and Doctors for Sexual Abuse Care (DSAC) to ensure that police policy is being complied with. The coordinator is also responsible for ensuring that local training, in line with national directives, is being carried out; that there are sufficient qualified police members in place to satisfy local demands; monitoring the performance of trained members; and monitoring complaint files to ensure compliance with the ASAI Policy.(141)

2.181 Communication centre managers are also charged with ensuring that communication centre staff under their control are trained in taking initial sexual assault complaint action and dealing with victims.

2.182 The ASAI Policy sets out the responsibilities of the various agencies involved in sexual assault complaints. The policy directs that police are responsible for the investigation of criminal offences; support agencies are responsible for ensuring that the victim receives crisis support, counselling, and the initiation of therapy; specially trained medical practitioners are responsible for both the forensic and standard medical examination of the adult victim; and Environmental Science and Research Limited (ESR), in conjunction with police, is responsible for forensic scene examination.

“Selection of Personnel for Adult Sexual Assault Investigations”

2.183 The ASAI Policy states that police personnel who investigate or have responsibility for the investigation of adult sexual assault complaints should possess a variety of knowledge, skills, and attributes. These include an awareness of the needs of adult sexual assault victims, an understanding of the roles and responsibilities of specialist agencies working with sexual assault victims, and knowledge of the relevant laws and practices relating to adult sexual assault investigations. Importantly they must also be trained in sexual assault investigations.

“Training”

2.184 The ASAI Policy recognises that trained investigators are essential to the successful functioning of this policy. To this end the policy requires that investigators must have fully undergone the specialised training into all aspects of adult sexual assault investigation procedures, including protocols with other agencies including Mâori, before becoming responsible for any adult sexual assault investigations.

2.185 An ASAI training course was subsequently developed by Detective Senior Sergeant Neil Holden and has been delivered at the Royal New Zealand Police College since February 2003. The overall aim of the ASAI training course is to develop in investigators the understanding, knowledge, and skills to effectively investigate adult sexual assaults. It also aims to develop good practice in adult sexual assault investigations, encourage networking with other people involved in the investigation, and build empathy with victims. To this end, the course underscores the view that the victim’s perspective should be paramount and reinforces this by having five different victims’ presentations during the week-long course.(142)

2.186 The training was based on a five-step good practice model developed by Detective Senior Sergeant Holden after lengthy research into current practice, overseas trends, consideration of criticism of police practice, and discussion with a curriculum group assembled by Detective Senior Sergeant Holden. The curriculum group was made up of senior police investigators and people working with the police in the adult sexual assault field, such as Dr Jordan from the Institute of Criminology, Victoria University of Wellington; Dr Jane MacDonald representing DSAC; Ms Linda Beckett; and two support agency representatives, one from Wellington Rape Crisis and a representative from Wellington Sexual Abuse HELP Foundation.

2.187 The curriculum group brought together ideas concerning the overall aims of the course, length of training, and target audience that resulted in the development of the first one-week course. This initial course was held 10–14 February 2003 with 20 detectives and detective sergeants participating.(143)

2.188 The ASAI Policy also says that, “Trained investigators should be encouraged to attend subsequent on-going training appropriate to their needs.”(144) I understand that an ongoing national training package for investigators trained in adult sexual assault investigation has yet to be developed by the police.

“Procedures – Investigation Management”

2.189 The ASAI Policy states that when the police receive a report of suspected adult sexual assault it should be referred as soon as possible to a trained investigator. If a trained investigator is not available and it is necessary that initial action, investigation, or intervention proceed as a matter of urgency, then “the most suitable police personnel should be tasked”. The complaint should be handed over to a trained investigator within two days for completion and the formal interview and statement-taking from the complainant.

2.190 The ASAI Policy says that the police must ensure that all victims have a support person or persons present during the interview process; this can be a friend, family member, counsellor, or a person from an identified support group. The victim can also request to have a support person from an identified sexual assault support group or trained sexual assault counsellor present during the medical examination.

2.191 The ASAI Policy recognises the importance of the formal interview of the complainant, and statement-taking in achieving a successful prosecution. It therefore directs that these aspects of the investigation must be undertaken only by a trained investigator.

2.192 Similarly, the ASAI Policy recognises the skills of doctors trained in the examination of suspected victims of sexual assault, such as DSAC and police medical officers, and states that they are to be the preferred medical practitioners when dealing with a sexual assault complaint.

“The Offender”

2.193 The ASAI Policy reiterates that the interview and any prosecution of an alleged offender is a police responsibility. Trained investigators are referred to the Manual of Best Practice for a description of the operational procedures for interviewing and prosecuting an alleged offender.

“Legal Action”

2.194 If a prosecution is not proceeded with, the reasons for not proceeding must be carefully explained to the complainant either by the officer in charge of the case or the coordinator of adult sexual assault investigations.(145)

“Facilities and Equipment”

2.195 The district manager is responsible for ensuring that appropriate facilities are available for interviews and medical examinations of adult sexual assault complainants.

“Statistics”

2.196 Like the 1988 headquarters circular regarding sexual offence reporting (see paragraph 2.162), the ASAI Policy requires that offences are promptly entered into the police database so that accurate and up-to-date information is available to determine trends and develop systems to enhance investigation practices and procedures.

“Historical Complaints”

2.197 In dealing with sexual assault complaints of a historical nature the ASAI Policy directs the police to consider such factors as the choice made by the victim, the evidence offered by the victim, availability of other evidence, availability of witnesses, legal precedents, the offender’s response, and the likelihood of continued offending. Police members are informed that consultation with the victim is a priority throughout the investigation process and that decisions must be made in consultation with the victim and the adult sexual assault investigations coordinator.

“Options available for resolution of complaints”

2.198 The ASAI Policy sets out the following options for police for resolution of a recent adult sexual assault investigation: recording the complaint and talking to the alleged offender; recording the complaint and taking no other police action; recording the complaint and referring the victim and alleged offender for counselling; full investigation and warning; investigation and prosecution.

2.199 For historical complaints the options available for resolution include

“Administration”

2.200 The ASAI Policy assigns administrative responsibility for the policy to the manager of the Criminal Investigation Branch (CIB) Support Group.

2.201 Superintendent Trappitt informed me that a framework for the evaluation of the ASAI Policy had been developed in May 1998, and he produced a draft copy of the evaluation specification report.(147) According to this report the evaluation would comprise five components: victims, police, support persons, medical practitioners, and relevant agencies. It said that there was a need for a systematic evaluation to “assess, primarily, the implementation of the policy and the degree to which victims’ needs are being met and their safety assured”.(148)

2.202 I have seen no evidence that this evaluation has yet been undertaken.

The revision of the Manual of Best Practice

2.203 In addition to the ASAI Policy, the other major development during the period from 1998 to 2006 was the revision of the Manual of Best Practice.

“Sexual Offences” section

2.204 Relevant to this inquiry is the revised “Sexual Offences” section, which was published in 2001 and is to be read in conjunction with the ASAI Policy. Like the earlier Manual for Detectives, the Manual of Best Practice details the law and the elements that must be proved for various sexual offences. It also sets out the procedures to be followed when investigating a sexual offence. The procedure section is divided into offences against decency and offences against the person. (149)

2.205 The “Sexual Offences” section refers no less than four times to the ASAI Policy; the procedures section dealing with offences against the person begins with the instruction that the investigator must follow the ASAI Policy when investigating an adult sexual assault complaint “in spirit and in deed”.

2.206 According to this procedures section, the investigator’s first responsibility is to the victim. Specific instructions regarding initial action include giving priority to the victim’s physical needs; ensuring the victim feels safe and secure; recording anything the victim says about the crime and the alleged offender when, and exactly as, the victim recounts it; and letting the victim know what to expect from that point. Where an alleged assault is reported within seven days, a forensic medical examination must take place as soon as possible. Preferred medical practitioners are those who have had specialised training in examining suspected victims of sexual assault, such as DSAC and police medical officers.

2.207 Police officers tasked with interviewing and obtaining a statement from the complainant are directed to try to help the victim feel safe; this includes telling the victim that the interview will be as brief as possible, and that he or she can have a support person present. After the interview police officers are directed to continue to include the victim in the investigative process. Direction is also provided regarding conducting the scene examination, including contacting Environmental Science and Research to obtain assistance or advice. If a prosecution does not proceed, the officer in charge of the investigation or the district coordinator of adult sexual assault investigations must carefully explain the reason to the victim.

2.208 Where a historical complaint is made, police officers must consider the following factors when deciding how to respond to the complaint:

“Victims Rights” section

2.209 The Manual of Best Practice was also updated in 2003 to recognise the enactment of the Victims’ Rights Act 2002. The manual sets out relevant provisions of the Act and describes the programmes, remedies, and services available. It directs police officers to refer victims to support services as soon as practicable and provide them with full information about proceedings.(150) The manual details a memorandum of understanding between New Zealand Police and the New Zealand Council of Victim Support Groups. This is similar to the earlier memorandum attached to the Victims of Crime Policy.(151) The “Victim Support” section of the manual includes a direction that the district commander or officer in charge of a station appoints a police representative on local Victim Support group committees. The manual also describes restorative justice processes and the procedure for notifying a victim of the release of an offender.

Adequacy of the sexual assault investigation policies

2.212 A number of the expert witnesses called by the police agreed that the ASAI Policy represented best practice in terms of investigating allegations of sexual assault; however, several concerns remained. For instance, Ms Angela Brott, Co-ordinator of the Women’s Refuge and Sexual Assault Resource Centre Marlborough, said that the Adult Sexual Assault Investigation Policy was a good policy and usually worked well. Her only exception was the provision that allowed victims to choose their own support person. She considered a trained sexual abuse counsellor more appropriate for the support role than a friend or family member.(152)

2.213 Ms Kathryn McPhillips, Clinical Manager of the Auckland Sexual Abuse Help Foundation Trust, also praised the ASAI Policy. In her experience it often operates effectively despite a shortage of police who have completed the formal training. She told me that the policy represents good practice in the investigation of sexual crimes and appropriately recognises the needs of victims.(153)

2.214 Dr Jordan confirmed that the policy represented good intentions on the part of the police. Her concern, however, related to the implementation of the ASAI Policy:

2.215 A witness from DSAC, Dr Clare Healy, echoed this concern, saying, “For the policy to work it must be supported at all levels within the force.” She observed,

2.216 Detective Sergeant Tusha Penny, whose police team at Lower Hutt specialises in child abuse, told me that although her team is aware of and follows the ASAI Policy, “in almost every respect that policy simply represents good investigative practice”. She said that her CIB training (undertaken in 1994) “closely reflected the practices that later made up the [ASAI] Policy”.(156)

2.217 Based on the evidence presented to the Commission, there are three key areas in which I believe further improvement is needed, all of them related to aspects of the ASAI Policy, its status, and its effective implementation:

2.218 The ASAI Policy is expressed in mandatory language. For example, it requires that the interview of a complainant must be undertaken by an investigator with specialised ASAI training. Despite that, Police Commissioner Robinson told me that, although the policy represents what is generally accepted as international best practice and is a highly desirable statement for an organisation to sign up to, compliance with it remains an “aspirational” target. He said that there are a range of tensions between delivering training while also delivering a 24-hours-a-day seven-days-a-week service to the community, and between the delivery of the significant suite of training required for the day-to-day operation of the police and the delivery of specialist training such as the ASAI training.(157)

2.219 It is unclear to me how Police Commissioner Robinson could state that compliance with the ASAI Policy remained an “aspirational” target, given that regulation 5 of the Police Regulations requires that the mandatory wording in the ASAI Policy must be obeyed. Under regulation 5(2)(b) all members are required to obey and be guided by “The Commissioner’s circulars”, which are now called policy pointers, such as the ASAI Policy. As previously discussed at paragraph 2.29, general instructions and policies that are in mandatory form must be obeyed.(158)

2.220 If the police are correct in their view that this policy represents international best practice, then mandatory compliance with it should cease to be aspirational. The police should address and resolve the range of tensions that exist so that full compliance with the policy can be achieved. If however the police consider that a lower standard of compliance is all that can realistically be achieved, then this should be reflected in the wording of the policy.

2.221 The problem is exemplified by the long delays experienced in establishing a specialist training programme, as envisaged by the ASAI Policy. The original intent was that a programme would be designed and implemented during the initial two-year lead-in period from 1998 to 2000. In the event, it was not until 2002 that Detective Senior Sergeant Holden was tasked with preparing the first ASAI training course, and it was not until February 2003, almost five years after the ASAI Policy was released and three years after it was officially to be implemented, that the first course was held for 20 detectives and detective sergeants.(159) I was given the impression that at current rates of throughput it is highly unlikely that the police will ever be in a position to comply with the requirement in the ASAI Policy that all cases of alleged adult sexual assault will be dealt with by officers with specialist training.

2.222 I also heard in evidence that there is a view amongst some members of the CIB that although the ASAI Policy and the related specialist training represents best practice, it does not alter the fact that a trained and experienced detective is entirely capable of dealing with sexual assault investigations. This view suggests that the ASAI training has not captured the hearts and imagination of some very senior CIB officers because they are very much of the view that the three-year detective training programme, which provides instruction in dealing with victims and complainants across a raft of criminal areas, covers essentially the same ground as that dealt with during the five-day training course on the ASAI Policy.(160) Acting District Commander Gavin Jones told me that his personal view was that ASAI training

2.223 It seems to me a matter of great importance that the police clarify this situation, establish a clear policy on the required level of competence for sexual assault investigation, and proceed on that basis.

Aligning the Adult Sexual Assault Investigation Policy with the Manual of Best Practice

2.224 The ASAI Policy and the Manual of Best Practice purport to cover different material on adult sexual assault investigation, and both state that they must be read in conjunction with the other. However, it is unhelpful to have to cross-reference material on the same topic from two separate documents, especially when the material is at times repetitive and on a few occasions contradictory. The result is an unnecessarily unwieldy and fragmented approach to policy and procedure on adult sexual assault investigation.

2.225 The ASAI Policy is described as providing “the policy and principles for the practice and procedures for the investigation of ADULT [emphasis as printed] sexual assault”,(162) while the Manual of Best Practice is described as containing the procedures for investigating sexual offences. There is, however, a degree of overlap and repetition in the two documents. For example, both provide nearly identical information on the procedure regarding medical examinations(163), and also on the approach to dealing with historical complaints.(164) The fact that the content of the two documents is contradictory in a few instances creates some ambiguity as to how a victim of sexual assault should be treated. For example, the ASAI Policy states that the police must ensure that all victims have a support person present during the interview process, who must be from an identified sexual assault support group or a trained sexual assault counsellor.(165) However, the Manual of Best Practice instructs the police officer to tell the victim that “he or she can have a support person present.”.(166) Thus the presence of an expert support person during the interview is a mandatory requirement in the ASAI Policy, whereas the presence of any support person (expert or otherwise) is optional in the Manual of Best Practice.(167)

2.226 In most other instances police officers must cross-reference and reconcile the instructions of both documents in order to meet the requirements for the investigation of adult sexual assault. Detective Senior Sergeant Holden, who has experience as a district adult sexual assault coordinator, confirmed to me that he saw no good reason to maintain two separate documents. (168) Similarly, in their submissions in response to my draft report, the police have said that they take no issue with the suggestion that the ASAI Policy should be incorporated within the Manual of Best Practice.(169)

Resource planning for the ASAI Policy

2.227 I was concerned to find that the ASAI Policy was issued without an accompanying national plan for resourcing the training and the dedicated facilities to which it refers. Instead, district commanders were expected to meet the requirements of the policy within existing budgets without any specific guidance from police national headquarters.

2.228 With respect to dedicated facilities, I was told that some larger police stations had suites especially designed for the interviewing and examination of the victims of sexual abuse.(170) The police showed me an example of such facilities in Lower Hutt, where the facilities have obviously been designed with care having regard to the needs of complainants and the requirements of effective investigations. However, in many districts such facilities remain on a “wish list” of property projects to be considered by district commanders alongside other needs. The impression was that most medical examinations are now taking place at medical or rape crisis facilities. Similarly, interviews with the complainant may take place in the complainant’s own home or at rape crisis facilities. The police told me that the “primary consideration in the choice of venue, aside from the availability of suitable facilities, will be for the place selected to be as comfortable as possible for the victim.”(171) This appears to represent an acceptable alternative to dedicated facilities. If so, the policy needs to reflect this and to spell out the important considerations in the choice of venue for interviews and medical examinations.

2.229 In relation to training, as noted above, a specialist training module has been available since February 2003, but the resources devoted to it mean that only a small proportion of CIB staff have so far received the training. I was told that the courses were fully subscribed; however, I was not given any indication of when, or even if, the police expected the whole of the CIB workforce to receive the training.

2.230 I was told that there is a move to prepare a “package” of training that can be taken out to the districts, and that this would enable more staff to go through the course without the need to come to Wellington, and would enable the districts to involve more front-line staff in the training.(172)

2.231 I fully appreciate that the police have to manage finite resources, and that difficult choices must be made regarding allocation of funding for facilities and training. It did seem clear to me, nevertheless, that a policy such as the ASAI Policy, which made very specific commitments on these matters, should have been implemented with a dedicated resourcing plan indicating how the commitments on training and facilities would be met. Given the importance of the policy and the costs involved, a specific budget should have been sought from Government, including realistic estimates of how many officers could be put through the training module per year, and addressing questions such as how to provide for access to appropriate facilities in smaller centres. If such a request for funding were approved by the Government and Parliament, I believe the resourcing issues associated with the ASAI Policy could be resolved, which would mean the policy could be fully implemented.

COMMUNICATION OF STANDARDS AND PROCEDURES

2.232 Term of reference (1)(b) requires the Commission to report on whether standards and procedures for complaint investigations have been, and are being, adequately communicated to members of the police. In answering this term of reference I have sought, in the course of my reading and questioning of those who have appeared before me, to understand the channels of communication with front-line officers; to ascertain, where possible, what level of familiarity front-line officers have with the body of standards and procedures described above; and to identify what training takes place to keep officers apprised of standards and procedures.

Publication

2.234 In 2002 general instruction P075 directed that all commissioned and non-commissioned officers would also be issued with a copy of the Manual of Best Practice. Copies were issued to stations and officers as determined from time to time by the police commissioner. All manuals on issue were to be properly maintained and updated when amendments were issued.(176)

2.235 General instruction P075 was amended in October 2005 (since the establishment of the Commission). It no longer requires commissioned and non-commissioned officers to be issued with copies of the Manual of Best Practice. The new general instruction reads,

2.237 By way of illustration one detective was asked if someone made a complaint against an officer who worked in their area, whether there were policies that would apply to their decisions as to how to handle that, and whether they were different from every other policy. The answer: “To be honest I couldn’t tell you of the policy. I could only tell you how I would deal with that.”(178)

2.238 A relatively new recruit, Constable Gregory Cater, commented,

2.239 In response to questioning about the user-friendliness of police policy documents and manuals, a senior sergeant who has been in the police for 21 years, informed me, “They’re forever in the updating process and they are definitely getting more user friendly, …”.(182)

2.240 A constable who had been in the police for eight years was asked if she was familiar with the general instructions dealing with complaints against police. Her response was, “No, I am not familiar with those. In my role as a constable, I know where they are and I know if I need to get them where to find them.”(183)

2.241 There were some experienced officers who voiced concern over whether front-line staff were sufficiently aware of the general instructions. Acting District Commander Jones, for example, noted,

2.242 It seems entirely reasonable to expect that front-line police officers should be highly familiar with a core set of policies that relate to their general and specific duties, and should have access to timely guidance when confronted with something more unusual, either through manuals or from senior officers. The police did not believe the evidence demonstrated any shortcomings in this respect.(185) But I was left with the impression that, because there is such a large volume of policies and the core set of policies is not well defined, officers largely choose for themselves what policies they get to know in depth. No system appears to be in place to confirm that officers have read and understood changes to policy that are relevant to their work.

2.243 For example, in questioning Superintendent Trappitt, I asked if there was any way of knowing in any of these processes that every front-line person had actually read those instructions. He replied that there was not.(186) This surprised me, given that many organisations have systems that require staff to confirm in writing that they have read and understood policies that are essential to the performance of their duties.

2.244 This is of particular concern in the light of the statement in the Police Act, section 30:

2.245 In other words, the Act contains a presumption that police officers are aware of general instructions and bring an understanding of them to bear upon their work. It would seem to me essential that the police have ways of demonstrating what the law presumes to be the case is indeed so. I would certainly expect that police officers were familiar with policies dealing with complaints against fellow officers.

Training

2.246 The police provide a basic grounding in standards, procedures, and policies through the recruit training programme run by the Royal New Zealand Police College. Newly qualified constables must also undertake ongoing training during their two-year probationary period. Officers who wish to qualify as detectives must go through the CIB training programme, which is a fairly exhaustive programme and includes training on handling adult sexual assault cases. In addition, the police provide and purchase a wide range of training packages for specialist areas of police work and general upskilling of their workforce. I was told that annual expenditure on training by the police is currently around $50 million.(187) I was left in no doubt that New Zealand Police has invested considerable resources in building up a workforce that includes many very highly trained professionals.

2.247 Ongoing training priorities are managed at two levels. There are a few nationally mandated training packages that all staff must undertake in respect of certain “core” skills, and where proficiency must be certified each year. At present, a staff safety and tactical training programme, which consists of firearms and self-defence training, is in this category, as is first aid training. In addition, I was advised that custodial suicide prevention training would soon be nationally mandated.(188)

2.248 Beyond this, district commanders determine what additional training is provided within their districts and to whom. A wide range of national training packages are available, although districts also have the option of contracting independent training providers to develop and/or run courses for district staff. The training needs of district staff are identified within the district, based on the particular needs of the district. For example, one district has recently had a training package developed on matters relating to dealing with people with a mental illness because of a perceived need in that district.(189)

2.249 The need to keep staff training up to date raises important management issues such as the uncertain work pressures of staff and the difficulty in backfilling the positions of those attending training. Despite such constraints, it appears that training in a particular field can be delivered expeditiously if district commanders agree that it has high priority. I was told about an ethics training package that has recently been endorsed by the Police Executive. The officer in charge of the package expressed confidence that all 10,000 police staff could be put through the half-day course within 18 months.(190) Conversely, there are times when achieving training targets proves difficult. The delayed roll-out of the ASAI training course (noting, however, that it is a full week course) is a key example.

2.250 It appeared to me that the current approach to the management of training makes it difficult for the police to give confident assurances about the extent to which all staff are sufficiently refreshing their skills, including their understanding of formal standards and of best practice. The police provide a national service and have to maintain a mobile workforce to deal with workload pressures that can be unpredictable. To achieve this, core skills need to be kept up to date (in the same way that professionals such as doctors are required to register ongoing training completed). I was surprised by how little training was nationally mandated compared with what was left up to the discretion of district commanders. I cannot understand how training objectives can be achieved without the police being able to demonstrate that the full range of core skills are being refreshed on a regular basis. Again, I would expect the policies dealing with complaints against fellow officers to be identified as “core” policies that every officer ought to know about.

2.251 The police place a lot of emphasis on the flexibility and autonomy that districts have to develop their own training packages to respond to local needs.(191) District commanders enter those packages on a district training catalogue database within the Royal New Zealand Police College library. This means that district training coordinators around the country can access the database and find the training programme should they wish. I heard evidence of how this is done.(192) However, it is not mandatory for districts to use an existing package – they may choose to develop their own programme.(193)

2.252 Although the district commanders I spoke to concerning training seemed committed to the goal of maintaining a well-trained workforce, it did not seem to me that they received sufficient guidance on priorities from the Office of the Commissioner. One district commander commented to me, regarding training,

2.253 Declaring everything to be high priority is not, in my experience, a particularly helpful practice. Training priorities ought to be determined by an appreciation of the important competencies required for each position within the police. I believe the police would be better able to give assurances concerning the skill levels of staff if there were a more rational approach to the prioritisation of training, providing clearer guidance to districts and clearer national standards.

2.254 Police services are provided on a national basis, and police members work and transfer regularly across district boundaries. Although some training needs vary from one district to another, and some discretion and flexibility for district commanders may be desirable, it is important that the police are consistent in the implementation of policies and the delivery of services so that national standards of service are maintained. This requires a coordinated and strategic view of the organisation’s overall training requirements and priorities.

Standards and procedures regarding internal investigations

2.258 There are four particular issues in relation to the policies regarding internal investigations:

Communication and training

2.261 There is no system in place to ensure that police officers are aware of what policies and instructions are important to their area of work, and that they have the necessary level of knowledge of those policies and instructions. Similarly, although there are a few nationally mandated training packages dealing with a narrow range of “core” skills for all staff, most staff training is decided at the district level without any national consistency.

2.262 Practices for communicating policies to staff need to be strengthened. There needs to be a system for ensuring that officers are aware of the policies and policy changes that are most important for their work, and have read and understood them. This work should be undertaken in conjunction with a review of what “core” skills need to be nationally mandated for ongoing training.
Recommendations