3.10 Between 1993 and 2003 the number of allegations of sexual misconduct by police officers has been relatively stable at around 10 per year on average.(197) In 2004, the number of allegations of sexual misconduct increased to 42, falling back to 24 in 2005. The higher figures in these years are thought by the police to be the result of the publicity arising from the establishment of this Commission of Inquiry into Police Conduct and from the investigation arising out of Ms Nicholas’s complaint. These events prompted other complaints and resulted in an increased number of (mainly historical) complaints.(198) If that is so, it suggests that for whatever reason, an indeterminate number of individuals have in the past felt unable to come forward with allegations of sexual misconduct by police officers, despite the existence of the Police Complaints Authority (PCA) and other independent authorities (such as court registrars, members of Parliament, and ombudsmen) who are able to receive complaints. A few such individuals approached the Commission. However, their complaints could not be reviewed because my terms of reference allowed consideration only of cases that had been investigated by the police.(199)

3.11 This kind of under-reporting is a recognised feature of sexual offending generally, and not just when the alleged offender is a police officer. Many victims of sexual violation do not report the incident or minimise the severity of the act(200) and it is not uncommon for there to be a surge of complaints after publicity regarding particular types of crime.

3.12 Dr Jan Jordan, an expert witness specialising in women’s experience of reporting rape offences to the New Zealand Police, explained that rape can have “such a profound and traumatic impact on the victims that it negatively affects their willingness to report and their ability to do so convincingly”.(201) A sexual assault complaint necessarily requires the disclosure of very personal information to the police and potentially in a court of law. However, the trauma experienced by a complainant may make it difficult to complain, and they may not always tell the police everything. I was told that complainants may well struggle to say, “I have been raped”, which is why the police “need really good training and sensitivity right from the start”.(202)

3.13 The sensitive and distressing nature of any complaint of sexual assault may also affect when a complaint is made. There were examples among the files of complainants who did not go straight to the police, but where the complaint surfaced in some indirect way, for instance when other complaints came to light.(203)

3.14 A 2001 file provides an example of a woman who did not immediately make a complaint. It seems the main reason for this was because she was ashamed of what had happened. However, in her statement she also said, “I did not think that anyone would believe me.” Similarly, the first person she told about the incident stated, “She said to me, they won’t believe me because I’m a known criminal and that fella is a cop.”(204)

3.15 The perception that the police will not believe or will not investigate an allegation of sexual assault against a member or associate of the police has featured in a number of files that I reviewed.(205)This perception appears to arise from

3.16 There are strict policies and procedures under current practice designed to ensure that a complaint against a member of police, once made, is taken and investigated. Indeed, the police submitted strongly that, although sexual offending is always a very daunting crime to report, there are no particular barriers to making complaints of sexual offending involving police officers or police associates.(206)The investigations into allegations of sexual assault against members of the police that I reviewed indicated that the applicable policies were generally complied with in the majority of cases.

3.17 Nevertheless, I believe the existence of the perception on the part of some complainants that the police will not believe or will not investigate an allegation of sexual assault against a member or associate of the police may add to the difficulty that some people have in first making a complaint, meaning that they may struggle, perhaps for years, before mustering the courage to do so.

Current practices for making and receiving complaints

3.19 According to the police website, complaints can be made in any of the following ways:

3.20 Where a sexual assault complaint has been made to a registrar or a deputy registrar of the District Court, an ombudsman, a member of Parliament, or the PCA it will be referred to the police for investigation because New Zealand Police is the only body within New Zealand with a prosecutorial function in respect of sexual assault allegations. Although the PCA has had the resources to conduct its own investigations since 2003, the secrecy provisions within the Police Complaints Authority Act 1988 (PCA Act) prevent any of the material gathered by its investigators from being used in criminal prosecutions or disciplinary proceedings.

3.21 Just over half of all sexual assault complaints (excluding sexual harassment complaints) against police members between 2000 and 2005 were made by the complainant approaching the police directly (40 of 79 complaints, or 50.6 percent). Eight sexual assault complaints against police officers were made to the PCA (10.1 percent) and 25 complaints (31.6 percent) alleging sexual assault by a police officer were made either as a result of someone contacting the police on the complainant’s behalf (for example, a family member, friend, or support agency) or as a result of the police becoming aware of a rumour that a sexual assault had occurred. Six complaints (7.6 percent) were as a result of police inquiries.

3.22 As outlined in paragraph 2.97, the police have an obligation to receive complaints about police members. In particular, as relevant to current police practice, general instruction IA104(4) directs

3.23 Indeed, I was told by Assistant Police Commissioner Peter Marshall,

3.24 If a police district receives a complaint alleging sexual assault by a police member, it is required to record the complaint and notify Professional Standards at the Office of the Commissioner, which subsequently notifies the PCA.

3.25 The PCA is required under its enabling legislation to give direction on all complaints against police officers. Although the PCA Act does not prevent the police from commencing or continuing any investigation into a sexual assault complaint against a member of police,(216) it is the PCA that decides how a complaint against a police officer should be handled. Under section 17 of the PCA Act, the PCA decides whether to investigate the complaint itself, defer action until after the police investigation of the complaint has been completed, oversee the police investigation of the complaint, or take no action with regards to the complaint.

3.26 It is current police practice to request that the PCA defers action where a complainant alleges that a serious criminal offence has been committed. This is intended to ensure that the secrecy provisions in the PCA Act are not engaged and the police are able to use evidence gathered during the investigation in any subsequent criminal or disciplinary proceedings.

3.27 The PCA has agreed with this course of action in the majority of complaints since 2000; however, the PCA generally requires the police to advise it of all developments of consequence in the course of the investigation and requires the matter to be included in the police district’s monthly reporting schedule.(217)

Making a complaint of sexual assault against an associate of the police

3.28 There are no specific police procedures regarding the acceptance and conduct of an investigation into an allegation of sexual assault by a police associate. I was told, “investigation of associates of Police follow the same process as any investigation of criminal offending”, although “the suspect’s association with the Police may require special steps to be taken … on a case by case basis, having regard, among other things, to the exact nature of the association”.(218)

Evidence of past practice when receiving a complaint

3.29 An assessment of the Operation Loft files indicates that in the vast majority of cases the police took a complaint against a police member promptly and professionally in accordance with the standards and practices applicable at the time. In only a few instances did the initial police member approached not take the complaint immediately.(219) According to the police, “Many of those cases where questions of non-compliance arose could be explained by the particular circumstances of the case”.(220)

3.30 For example, in a 1984 case the complainant (while being held overnight in the police station cells) made allegations of indecent exposure to two constables and a senior police officer. A further senior police officer was also advised of the allegation. Despite the complainant specifically asking one of the constables how to make a complaint, the complaint was not taken until the complainant returned to the police station the following day with her solicitor.(221) Indeed one of the officers responded to the complainant’s attempt to make a complaint with a grossly insensitive remark, and all failed to take her complaint seriously.(222) The police acknowledged that the officer’s actions were extremely insensitive.(223) However, because of her earlier bizarre and abusive behaviour they submitted, “it was not immediately apparent to the Police that her allegation was meant to form the basis of a genuine complaint”.(224)

3.31 In a 2003 file a complainant made an allegation of an indecent assault to a sergeant, and the sergeant chose not to take a complaint, instead directing the complainant to contact a senior member in the morning. Regarding this, the district commander reported,

3.32 The vast majority of complaints against associates of the police were also appropriately taken. However, I did receive evidence from one submitter (Submitter A) that the police had failed to take her complaint of rape when she initially approached the police in 1982 or 1983. Instead of taking the complaint, the police officer brought the alleged offender into the same room to discuss the allegations with her.(227) (The police later agreed that this was extremely insensitive.(228) ) I note that the complainant received a police apology when her complaint was reinvestigated in the mid-1990s. The circumstances of this case are set out more fully in paragraphs 3.123 to 3.129.

Areas to be addressed

3.33 The evidence presented before this Commission illustrates the willingness of the police in the vast majority of cases to accept and investigate sexual assault complaints against police members or associates of the police, and where appropriate, to prosecute the alleged offender. However, the evidence also showed, understandably perhaps, that some complainants may perceive that the police will not believe or will not investigate a complaint of sexual offending by a police member or associate of the police. Indeed, in one case that was what a complainant said she was told when she went to the station to lay a complaint against an officer.(229)

3.34 Although the police rightly point out that it is not possible to overcome the reticence of all potential complainants,(230) I believe it is important to address this perception as far as possible.

3.35 It is absolutely critical for the prospects of successful prosecution of offending such as rape that the complaint is received as soon as possible after the offence is committed.

3.36 The police must take active steps to facilitate victims coming forward, either in person at the police station or by telephone, and especially when an alleged offender is a member of the police. As discussed in paragraphs 2.137 to 2.139, there is also a need for greater effort in educating the public about the complaints process. It is important that members of the public are aware that there are processes in place to enable them to complain about a member of the police and that these processes will ensure that their complaint is investigated fairly and impartially.

3.37 Outside organisations such as Doctors for Sexual Abuse Care (DSAC) or Rape Crisis can also provide support and encouragement to complainants and help clarify any concerns that the police do not believe or investigate complaints against members or associates of the police.

3.38 This issue also demonstrated to me the importance of ensuring that there is wide public awareness of the existence and functions of the PCA, and that the PCA is easily accessible to complainants throughout New Zealand.

APPOINTING AN INVESTIGATING OFFICER

Importance of independence

Importance of independence when investigating complaints involving police and associates

3.46 It is of paramount importance that the officer investigating a complaint against either another police officer or a police associate is independent, and perceived to be independent, of the officer or associate he or she is investigating. Independence is particularly at risk if the investigator was personally involved in the matter that is the subject of the complaint, or has a relationship or association (past or present) with the subject of the complaint, the complainant, or some other person such as a key witness. Conflicts of interest of these kinds inevitably give scope for a perception that the investigator does not have the necessary independence for the investigation. A lack of independence can also compromise the investigator’s objectivity in actuality – for example, by making the investigator more susceptible to improper pressure or favouritism (implicit or explicit) from the police officer who is associated with the subject of the investigation, and/or the officer’s colleagues or family.

3.47 Ultimately, independence is central to the reputation of the police and the public’s trust in the police to make impartial decisions. A decision that is, or appears to be, influenced by other interests damages the reputation of both the individual officer and the organisation as a whole.

3.48 Independence risks can be addressed to some extent by ensuring that the investigator has sufficient experience and seniority to manage perception issues(232) and sufficient objectivity in fact to ensure the investigation is carried out in a fair and proper manner. But simply “managing” the conflict in this way is not the right approach if the relevant legal and ethical standards dictate withdrawal from the matter altogether. Indeed in some cases the perception of a conflict may cause such difficulties that it just makes good sense for the officer to stand aside, irrespective of whether there is a legal or ethical responsibility to do so. These are matters that ought to be covered by policies and procedures so as to ensure sound and principled decision-making and oversight (not to mention knowledge of the relevant legal and ethical standards) by senior officers.

Standards and procedures relating to independence

3.51 The police acknowledged that an association between a suspect and police may require special steps to be taken to ensure that the investigation is (and is seen to be) fair and objective,(236) but submitted that the issue is properly governed by general provisions involving the avoidance of conflicts of interest, and that flexibility is important to enable potential conflicts to be resolved on a case-by-case basis.(237)

Summary of the applicable standards

3.52 The current applicable standards and practices can perhaps be summarised in the following five statements of principle:

Current practice when appointing an investigator of a complaint against a police officer

3.53 The issue of independence most commonly arises at the time an officer is appointed to investigate a complaint. Superintendent Wildon told me that historically the police have taken the view that it is necessary to bring in an investigator from another part of the country only in unusual or particularly serious cases, but that in recent times greater care has been taken in selecting investigators to ensure they have no personal or professional relationship with the member under investigation. He said that although Professional Standards is tasked with overseeing and reviewing the handling and outcome of all complaints against serving police officers, most inquiries are conducted within the district where the complaint arose. Districts are responsible for organising the inquiry and for making preliminary as to how complaints should be resolved. Districts maintain their own complaints registers, and most have dedicated complaints managers.(238)

3.54 Superintendent Wildon explained to me the involvement which Professional Standards had in the appointment of a complaint investigator before Police Commissioner Robinson’s directive of November 2005, noted above, that district commanders consult the National Manager: Professional Standards (in all but non-serious cases) about the appointment of complaint investigators. When a complaint is made to a police district, the district commander must notify Professional Standards as promptly as possible so that the complaint can be logged and the PCA notified. When a complaint is initially directed to the PCA and is to be referred to the police for investigation on its behalf, the PCA refers the matter to Professional Standards. In either of these situations, practice before November 2005 would almost always involve Professional Standards referring the matter back to the relevant district for investigation, unless it considered the investigation clearly needed to be led by an investigator from outside the relevant district. In those cases, it would forward the complaint to an appropriate external investigator directly. This situation would arise, for example, in cases where senior staff in the relevant district have a conflict of interest and should not take any further part in the resolution of the complaint. It may also arise in particularly serious cases, or cases where the alleged offender was of a senior rank.(239)

3.55 In his brief of evidence, prepared in November 2005, Superintendent Wildon said that his office had not until that time had a role in the appointment of the lead investigator for a complaint, even though from time to time a district would seek advice. He considered that position would change as a result of the November 2005 directive.(240) This contrasted with his oral evidence to the Commission, in which he said that the directive was not the result of ineffective consultation about the appointment of investigators but that

3.56 In further evidence to the Commission in December 2006, Detective Superintendent Burgess also described the directive as having formalised established practice. Speaking of practice since the directive had taken effect, he said that under the consultation requirement district commanders now discuss serious matters with the Professional Standards national manager; and, for example, as a result of such consultations, he had personally maintained oversight of staff from one district who had travelled to other districts to conduct investigations at the request of those districts’ commanders.(242)

Relevant factors in making appointments

3.57 As noted in paragraph 3.49, general instruction IA108 requires the district commander to give consideration to the appointment of an investigating officer from outside the station, town, or district where the incident occurred and/or where the alleged offender worked. However, a range of other factors may also need to be considered in this decision. Detective Superintendent Burgess summarised the factors in his evidence as follows:

3.58 The urgency of the inquiry may also affect the timing of the decision on an appropriate investigator. Detective Superintendent Burgess explained that after the initial contact with the complainant it is usual, particularly in urgent situations, for a preliminary interview to be arranged as part of a “holding action” after receipt of the initial complaint, and this may on some occasions be conducted by the officer to whom the complaint is first made.(244)

3.59 However, using investigators from another district is expensive, and because of the reduction in the number of districts (and the consequent increase in their size), there are many cases where the district commander can appoint a suitably senior officer from a different centre within the same district who can conduct the inquiry without any suggestion of bias. Superintendent Wildon also said that the evolution of the complaint investigation system has also emphasised the various levels of review of inquiry files and the independence and seniority of those who review the inquiry and the proposed resolution.(245)

3.60 Detective Superintendent Burgess told me that, if a matter is to be investigated inside the district instead of by an external appointment, it is acceptable for the complaint to be investigated by a senior officer such as the district Professional Services manager, an area commander, or a crime manager. (246) However, I also heard evidence from three district commanders, who explained how they decide whom to appoint to undertake an investigation into a complaint against a police officer.

3.61 Superintendent Grant Nicholls, District Commander, Eastern Police District, informed me that he expects most of the less serious complaints, concerning such things as the attitude and language of police members, to be investigated by the immediate line supervisor of the member complained of and for the supervisor to take appropriate action to monitor future performance. In more serious cases, Superintendent Nicholls will discuss with the area commander and/or the district crime service manager about the appropriate investigator to conduct the inquiry. In most instances the investigator appointed will be a non-commissioned officer. Where the allegation is of serious misconduct or criminal behaviour, close consideration is given to the appointment of an investigator from outside the area, or for the most serious matters, outside the district.(247)

3.62 Superintendent Mark Lammas, District Commander, Central Police District, informed me that the appropriate choice of investigating officer will vary depending on the circumstances of the case. Most complaints can be resolved within the area where they arise, and in those cases he delegates the appointment of the investigating officer to the area commander. Indeed, in cases that do not fall into the most serious category it is not unusual for an investigating officer to have already been assigned by the area commander. In that situation, Superintendent Lammas will review the appointment but intervene only if he considers the area commander’s choice to be inappropriate; for example, if the investigator does not have the necessary skill level for the investigation, or is too close to one of the participants to be seen to be independent. Superintendent Lammas takes the view that the necessary degree of distance between the investigator and the alleged offender increases with the seriousness of the allegations. He noted that the other advantage of having area commanders take responsibility for appointing investigators where the complaint can be resolved locally is that they are more aware of which investigators are available (as affected by matters such as leave or workload).(248)

3.63 Where Superintendent Lammas believes that a complaint is too serious to be resolved locally, he will direct the choice of investigator, either by name or by rank and location. Superintendent Lammas told me that it is not difficult in a district the size of Central to find, where necessary, a senior investigator from another centre who has no working relationship with any of the people involved in a particular inquiry.(249)

3.64 The situation is slightly different in Auckland City Police District where an independent Professional Standards section (previously known as a District Complaints section) has been operating since the early 1980s.(250) Under this system, the manager of Auckland Professional Standards receives all complaints made about any member of the Auckland police, assesses them, and assigns them to a dedicated inspector to either undertake or oversee the investigation.(251) Superintendent Gavin Jones, Acting District Commander, Auckland City Police District, emphasised the importance of safeguarding the independence of the investigation:

3.66 Superintendent Lammas informed me that he endeavours to accommodate a complainant’s wishes if he or she expresses a particular desire for an investigator from another part of the district. In most cases the investigating officer discusses his or her appointment with the complainant, and Superintendent Lammas receives written confirmation, on a standard form, signed by the investigating officer, either of the complainant’s assent to that appointment or of any reasons why there is an objection. If an objection is lodged he considers that, and on most occasions will arrange for another investigator to be appointed.(254)

3.67 The impression from all of this evidence is that practice varies between districts in terms of how an investigator is appointed and by whom, and what degree of independence from the member under investigation is needed. A similar picture emerged from my review of police files. In many instances files did not indicate where the investigating officer was based and, consequently, it was difficult for me to ascertain if the investigating officer could be considered sufficiently independent of the alleged offender. However, in those cases where proximity could be observed there seems to have been considerable variation of practice as to the extent to which independence issues were considered, the types of factors that were considered, and when a file was assigned to an investigating officer from outside the station, town, or district where the incident occurred and/or where the alleged offender worked. The following examples illustrate the point.

Evidence from the submitters’ cases

The appointment of an investigating officer in Submitter H’s case

3.68 In 2001 Submitter H reported to the police that she believed her partner, a police officer, had indecently assaulted a child. She expressed a number of concerns to the Commission about the subsequent police investigation. These included that, contrary to the recommendation of the Child Abuse Unit that had carried out the initial investigation, the interview was conducted by a detective stationed at the same police station as the alleged offender. The submitter considered the working relationships between the investigators and the alleged offender created a barrier to an objective investigation. She also felt that her complaint was neither taken seriously nor investigated thoroughly, and that she and her family had little or no assistance from the local police when the alleged offender continued to harass them for some time afterwards.

3.69 Submitter H’s complaint was taken by the local Child Abuse Unit. The detective inspector responsible for investigating the case told the Commission that he considered the allegation to be extremely serious and that it needed to be thoroughly investigated within as short a time frame as possible. Officers from the Child Abuse Unit conducted the preliminary investigation, including taking statements from Submitter H and others, and arranging a medical examination of the child.

3.70 Having completed this preliminary investigation, one of the officers responsible made a “strong recommendation” to the detective inspector that the interview of the alleged offender should be conducted by someone from outside the district, or at the very least by a senior police officer who was not from the area where the alleged offender worked. He recorded that Submitter H was a “convincing witness” and that the explanation the alleged offender had given another witness about his actions was “unlikely”.(255)

3.71 The detective inspector discussed this recommendation with his superior. In his covering report to his superior he had recorded his view that, at that stage, there would not be sufficient evidence to warrant prosecution unless the alleged offender made an admission of criminal sexual activity. That underlined the importance of the interview and any statement obtained.

3.72 Despite this, the detective inspector and his superior decided that it was not necessary to bring in someone (who would have to be of the rank of detective senior sergeant or above) from outside the district. They gave the job to a detective senior sergeant in the station where the subject worked (however the police told me that the subject was primarily based at a community policing office and was only nominally attached to the station). Because that officer had only recently taken up his position in the station, they were satisfied that there was no conflict of interest and that the interview would be conducted “professionally and without prejudice” (that is, impartially).

3.73 The police said in their submissions on this case that the selection of an interviewing officer for an internal investigation will always be a matter of judgment for the senior officers charged with oversight of the inquiry. However, they accepted that, with hindsight and despite the interview being an “unremarkable one about which there can be no suggestion of bias”, it was “tempting to disagree” with the decision not to engage an interviewer from outside the district. Although it would, in the police’s view, have made no difference to the outcome, the choice of a different investigator “would have avoided the allegation that [the interviewing officer] somehow contrived to protect [the alleged offender] because they were nominally attached to the same station”.(256)

Other examples from the Operation Loft files

3.74 In some instances the files very clearly show that the independence issue was addressed. For example, in a 2002 case involving an allegation of indecent assault, the alleged offender was based (and the incident occurred) in one Bay of Plenty town, and it was considered inappropriate to appoint an investigating officer from that town. An investigating officer was appointed from another Bay of Plenty town. (257) In another (1997) case, involving allegations of disgraceful conduct in a South Island city, an investigating officer was appointed from a North Island city.(258) In a 1993 case involving an allegation of indecent assault, the PCA noted, “This was a serious complaint and I am glad to see that it was assigned to a senior officer from outside the District to investigate.”(259)

3.75 In other files it appears that the investigator was a local officer, who knew the alleged offender and/or witnesses. This was the position in a 1983 case where the complaint was made by the alleged offender’s wife, from whom he had become separated, and involved allegations of indecent assault of their children. In his report the investigator stated that earlier in the year, while in the Police Club, the alleged offender had outlined some of his domestic problems to him.(260)

3.76 There is a danger that confidentiality may be compromised if a complaint is investigated locally. In one of the cases referred to in paragraph 3.29 above, dating from 1995, the complaint was referred back to the station at which the alleged offender was based after the complainant first attempted to lodge the complaint at a different station. A lack of confidentiality within the station meant that soon after the complaint had been received and a preliminary interview with the complainant had been arranged, the alleged offender learned informally from a colleague that a complaint had been made against him. This resulted in the alleged offender approaching the complainant and attempting to dissuade her from proceeding with the complaint.(261)

3.77 Some of the cases involved the investigating officer also being the supervisor of the alleged offender. In a 1998 file involving allegations of indecent assault, the area controller wrote a letter to a small town station formally appointing the supervisor of the alleged offender as the investigating officer:

3.78 In another 1998 file involving allegations of indecent assault made by a member of the public whom the officer concerned was “cultivating” as a police informant, the sub-area manager sought an outside area investigator but the district manager directed him to appoint an investigator from within his own resources.(263) It is not clear from the file what the reasons for this were. But surprisingly, a local investigator was appointed who appears to have had management responsibility for the alleged offender and also had had some peripheral involvement in the case in that capacity. The report to the PCA from Internal Affairs states,

3.79 In a 2000 case concerning an allegation of indecent assault, the supervising officer of the alleged offender was conscious that it was inadvisable that he should have any role in the investigation. In a report he noted,

3.80 There is a question about whether it is appropriate in principle for an officer’s supervisor to become involved in complaint investigation. Superintendent Nicholls said in his evidence that it is acceptable in minor cases involving such things as the attitude and language of police members, where the immediate line supervisor of the member can take appropriate action to monitor future performance (see paragraph 3.61). I accept that evidence. But involving a supervisor is not appropriate in a serious case that requires formal investigation, not only because the existence of a supervisory relationship would be likely to compromise the investigator’s objectivity in the investigation but also because that involvement could compromise his or her ability to take action following the investigation (for example on whether disciplinary action should be taken) or be perceived to do so. As a matter of principle, it seems preferable for the investigatory and supervisory roles to be separated, in all but “minor” complaints.

3.81 The PCA’s view is that the investigating officer would not usually be the supervisor of the member of police who is the subject of a complaint, except on rare occasions and only with the approval of the complainant.(270) I would encourage this practice as good policy.

Practices involving police associates

3.82 As noted at paragraph 3.50, cases involving associates are investigated in the same way as any other police investigation. Detective Superintendent Burgess said in evidence,

3.83 Some instances of association are immediately recognised without difficulty. However, as the relationship becomes more remote the question is less susceptible to quick and easy answer.

Evidence of past practice

3.84 Independence issues arose in a number of the files I reviewed involving allegations against police associates. The case of Submitter A (discussed at paragraphs 3.123 to 3.129) is perhaps the clearest illustration of a failure (which the police fully acknowledged by way of apology to the complainant) to address a conflict of interest involving a police associate. In that case the associate was clearly well known to the officer who received and dealt (inadequately) with the complaint. Another case, from 1991, illustrates the importance of addressing the independence issue. It involved complaints of indecent assault on two boys under the age of 12. The case was locally investigated. It was acknowledged that the alleged offender belonged to a club that involved police members, that he was “a regular drinker in the [town name] Police Club” and “also a close friend of Police officers at [town name]”, and that the file was not well investigated or documented until it was reviewed by the investigator’s supervisor.(272)

3.85 A 1995 case involved a charge of sexual violation by rape against the son of a police officer, which was locally investigated.(273) Detective Superintendent Burgess said in respect of that decision,

3.86 The evidence from the files supports Superintendent Wildon’s evidence (see paragraph 3.53) that greater care has been taken in recent times to ensure the independence of the investigating officer. There is no doubt that most decisions about appointing a suitable officer now involve the application of experienced judgment and a sound knowledge, not only of the needs of the investigation but also of the ethical issues involved in identifying and managing conflicts of interest.

3.87 Despite that, I was struck by the variety of different practices when appointing an investigating officer and by the frequency of cases where a district commander has chosen not to have a complaint investigated externally because of, first, the additional costs to the district and, secondly, reasons of urgency. I accept these are relevant factors that must be placed alongside the need for a fully independent investigator to be appointed. On the other hand, they intensify the risks that principled decision-making will be sacrificed in the interests of pragmatism and that the appointment will not be perceived as sufficiently independent. Ultimately, this may not serve the interests of police credibility and reputation.

Making appointments in urgent cases

3.88 The impact of urgency on the timing of the appointment of an investigator in a case involving sexual assault deserves some discussion. The case of Submitter D (discussed at paragraphs 3.143 to 3.149) in 1995 is a good illustration of how judgments have been made about this issue. In that case the investigation was undertaken by a member from the station from which the alleged offender had just transferred, and the interview was conducted by the acting head of the CIB. The investigation was undertaken by a member of police from the station from which the alleged offender had just transferred, and the alleged offender was immediately interviewed by the acting head of the CIB. I was informed that the police had to make a speedy choice between interviewing the alleged offender immediately, which meant using a senior officer, or involving someone from outside the district, which would have resulted in a delay of several hours. The latter option risked the alleged offender leaving for another city (with possible loss of forensic evidence) or learning the detail of the evidence and tailoring a story to fit. As a result the district commander chose to have the alleged offender interviewed immediately. I was informed that the investigating officer had not worked with the alleged offender, had never had a relationship with him outside work, and, because of the officer’s transfer away from the station, did not need to be concerned about a future working relationship.

3.89 In another case, involving an allegation in 1995 of sexual violation by rape, the area controller acknowledged “earlier directives that an officer from outside the District should be called in to investigate in serious criminal charges like this”,(276) but he explained that speed of action was essential which was why he appointed a local investigator.

3.90 But speedy action will not always be paramount. Though no doubt certain aspects of an investigation require prompt action (for example, scene and medical examinations when the complaint is of a recent nature, and a preliminary interview), other aspects will not necessarily be prejudiced by a short delay. Indeed, Dr Jordan told me that some delay in the taking of the formal statement from the complainant might be preferable. In Dr Jordan’s view, better evidence may be obtained as a result of some delay, and this would also allow time for a specialist interviewer to be used, which produces a better result all round.(277) The ASAI Policy also includes reference to the possibility of delay to accommodate the needs of the victim and to allow for a trained investigator to become available.

3.91 Moreover there will be a point, after the completion of necessary preliminary inquiries and “holding actions”, where the choice of investigator for the formal stages of the investigation can be put to the district commander for consideration (in consultation with the Professional Standards national manager) without the need for urgency to get in the way of a principled decision.

Guidance on police associates

3.92 I am also concerned about the lack of guidance on conflicts of interest in respect of police associates. Conflicts of interest almost invariably involve differing circumstances and relationships, and it is impossible to attempt to define all such circumstances and relationships at the outset. I agree with the police that each case needs to be considered on its merits and that it is not possible to produce a precise definition of an “associate”.(278) But the judgment as to whether the chosen investigator has, and is perceived to have, the necessary degree of independence from the person under investigation is just as difficult, if not more so, than in cases involving complaints against police officers.

3.93 I appreciate the evidence given by Detective Superintendent Burgess about the special steps that may be taken to ensure that an investigation involving a police associate is (and is seen to be) fair and objective and the likelihood that independence issues arising in investigations into associates will be picked up in the review of the file by a senior police officer, for example the district complaints manager. However, after considering the police evidence and submissions on this point I do not agree these procedures are sufficient. In the absence of formal police standards, procedures, and policies regarding the conduct of an investigation into an allegation of sexual assault, or indeed any offending, by a police associate, investigating officers are having to exercise their judgment in a vacuum about important matters such as

3.94 The examples I saw involved investigations undertaken by police officers stationed within the same area as the alleged offender. It is my view that the more recent cases involving associates have been well investigated. But I am concerned about the number of cases in which the police do not appear to have taken adequate steps to manage conflicts of interest, or perceived conflicts of interest involving associates, and ensure that the investigations are undertaken by officers who are sufficiently removed from the alleged offender, and who are seen by the complainant and the general public to be sufficiently removed from the alleged offender.

3.95 Counsel assisting explored this issue with Detective Superintendent Burgess, who acknowledged,

3.96 As mentioned earlier, the lack of independent oversight by the PCA of a criminal investigation involving a police associate would, in my opinion, suggest that even greater care needs to be taken where the alleged offender is an associate of the police to ensure that there is no perception of partiality. Although I am not suggesting that these matters always need to be sent outside the district in which the complaint was made, it is important that they are investigated by officers who are independent, and seen to be independent.

Areas to be addressed

3.103 I also consider that the national ethics training programme is a useful basis on which to increase understanding within the police of independence issues, including those involving conflicts of interest. I heard evidence from Mr Phillip Weeks, a former police officer, now a non-sworn member, who manages Crime and Safety Training at the Royal New Zealand Police College. Along with another colleague, he helped develop the programme entitled “Making Ethics Real”.(280) Many of the hypothetical ethical dilemmas posed for discussion during the programme involve consideration of issues of conflict of interest. The police submitted that the programme also provides clear guidance on the need to avoid involvement in cases where there is a potential conflict of interest, or where subordinates may have a conflict. (281)

3.104 I believe there is some potential to enhance the contribution the programme makes in this area. Although the hypothetical examples deal with different types of conflict of interest, there is no mention of the concept itself nor any general description of what types of relationships, associations, or other factors may give rise to a conflict of interest. The absence of a general policy or instruction on conflicts of interest (as there is, for instance, in the case of other examples dealing with rewards, gratuities, gifts, and koha) makes it less easy to interpret the hypothetical examples. Neither is there a hypothetical example that squarely addresses the types of potential conflict of interest I have identified from the files discussed above, regarding the investigation of a fellow police officer or police associate.

3.105 I therefore recommend that the “Making Ethics Real” training programme be expanded to directly address this topic. I note that a specific policy on independence would also facilitate the ability of this programme to foster understanding of all aspects of the independence issue.

CONDUCT OF A SEXUAL ASSAULT INVESTIGATION

3.107 Detective Superintendent Burgess also informed me that the time frame for investigations, and for the various steps within an investigation, could vary enormously. This was readily apparent in the investigation files that I examined: the quickest investigation undertaken between 2000 and 2005 was completed in less than a day (in the sense that the charge was laid on the same day that the complaint was laid); the longest investigation was completed in 547 days; the average investigation took 204 days; and the median was 159 days. (The measure here is the number of days between the complaint being laid and the alleged offender being charged or the file sent to the PCA, where this could be determined.)

Current best practice in sexual assault investigations

3.110 According to Detective Sergeant Penny every inquiry unfolds slightly differently, and the course of the inquiry will initially depend on the way that the complainant presents. If her team is called out because a sexual assault has just happened, the first step, assuming that the victim is safe and is in a condition to talk to the police, is to obtain preliminary details of the offence. Detective Sergeant Penny informed me that it is vital that the police learn the basic details of the offending before anything else happens. Accordingly, an officer will ask the victim what happened, whether he or she knows the offender, where the scene is, whether there were any witnesses, and whom the victim would like to support him or her. This allows the inquiry to swing into action immediately. Preserving the crime scene and obtaining forensic evidence are very important, and in order to do this the police need to arrive there as quickly as possible.(283)

3.111 After these preliminary details have been taken, and assuming the victim is happy for the police to do so, the police will contact a support person for the complainant, either from a professional agency such as the Rape Counselling Network or anyone else whom the complainant nominates.(284)

3.112 The police then explain to the victim what is going to happen next. Detective Sergeant Penny acknowledged the need for this explanation to be clear and careful. One way of minimising the distress that the inquiry process causes victims is to make sure that they understand well in advance what is going to happen and why it is important.(285)

3.113 While part of the police inquiry team examines the scene, the police priority as far as the victim is concerned is arranging the forensic medical examination. It is always necessary to take a very detailed statement from the victim, but this can wait a day or two. On the other hand, the sooner the victim is examined by a doctor, the greater the likelihood that forensic evidence will be located. The other reason that the police consider it important to complete the medical examination quickly is because it is only once this has been done that the victim can wash and begin the process of recovery. Detective Sergeant Penny noted that in the majority of cases a member of DSAC conducts this examination.(286)

3.114 Detective Sergeant Penny told me that what happens next will depend on matters such as the hour of the day and how the victim is coping. In most cases, and especially if it is late and the victim is exhausted, the police will take her home and make an appointment to take a full statement within a day or two. Sexual assault complainants in the Lower Hutt area will usually be interviewed in the child abuse suite at the Lower Hutt Station, which has more comfortable and non-threatening surroundings than the rest of the station, or at the house of the Hutt Rape Counselling Network (HRCN). The police will warn the victim at the outset that the interview will take several hours, and may extend over several days, because it will be necessary for the victim to tell the police everything in considerable detail.(287)

Compliance with the ASAI Policy

3.115 As discussed above, the police will contact whomever the complainant nominates as her or his support person. This person will not necessarily be from an identified sexual assault support group or trained sexual assault coordinator.

3.116 I received evidence from Ms Angela Brott, Co-ordinator of the Women’s Refuge and Sexual Assault Resource Centre Marlborough, that she was concerned that the police did not always contact appropriate support agencies when dealing with a sexual assault complainant:

3.117 I was concerned by this evidence because the ASAI Policy requires the police to ensure the victim has a support person from an identified sexual assault support group or trained sexual assault counsellor with them during the interview process and is given appropriate information.

3.118 Although the ASAI Policy is a national policy, I understand from Dr Jan Jordan that there is still a “continuing lack of predictability and consistency regarding the police’s response”.(289) She said,

3.119 I suspect that the lack of consistency referred to by Dr Jordan arises from a failure to fully implement the ASAI Policy (as discussed in Chapter 2).

3.120 Ms Brott, coordinator of a Marlborough support agency for victims of sexual assault, told the Commission,

3.121 However, the roll-out of the adult sexual assault investigation training course, the appointment of a national coordinator, and an increased awareness of the ASAI Policy should result in greater consistency of approach throughout the entire organisation, and ensure that best practice is occurring in all instances.

Evidence of police practice when undertaking an investigation

Police practice in the investigation of submitters’ complaints

The investigation of Submitter A’s allegations

3.123 Submitter A’s complaint was made to the police shortly after two episodes of alleged offending in 1982–1983. However, the police failed to investigate it. The incident was effectively shelved, or buried. In my view a reasonable inference from the file is that the reason for this was the close association between the man accused and the local police personnel. A reading of the police files associated with a later criminal investigation of this complaint (undertaken in 1994–1995) reveals that at about the same period other allegations were made about the same offender (in relation to his stepdaughters) by the offender’s partner; these allegations were similarly ignored.

3.124 In 1996 an investigation, focusing on the police action (or inaction) in the early 1980s, was instigated by an assistant commissioner after a meeting between police and Submitter A’s member of Parliament. This investigation was undertaken by a Rotorua detective inspector who recorded the following:

3.125 In hearings before me, the police acknowledged that their handling of Submitter A’s complaint, when it was first made in the early 1980s, represented “serious dereliction of duty on the part of the officers involved. There is no excuse for this.”(294)

3.126 The police did, however, do their best to rectify the situation when the complaints resurfaced in the 1990s. First, an investigation into the criminal allegations raised by Submitter A and by the alleged offender’s stepdaughters was undertaken by members of the Rotorua Sexual Abuse Team in 1995–1996. The investigation resulted in charges being laid against the alleged offender in both cases. He was convicted and sentenced to nine years’ imprisonment in 1996 in respect of his stepdaughters. However, he was acquitted in October 1996 in respect of Submitter A’s allegations.

3.127 It is impossible to say with certainty that the alleged offender would have been acquitted in relation to the complainant’s allegations had he been tried in 1983–1984. No relevant medical records could be found by the time the matter came to trial, and the complainant’s doctor had since died. The odds of acquittal would undoubtedly have been lower had written or oral medical evidence been available, even if its sole effect was to show that the complainant had visited her doctor within a short time of the alleged offending. The odds would have been lower still had the medical evidence been in the form of notes confirming the trauma of which Submitter A complained. The whereabouts of notes (if any were made) remains a mystery. Nevertheless, the investigation undertaken by the Rotorua Sexual Abuse Team in 1995–96 was thorough and complied with the standards and procedures laid out in the Manual of Best Practice.

3.128 Secondly, in a letter dated 14 February 1997, Assistant Police Commissioner Scott made a frank and unreserved apology “both personally and on behalf of the Police Department” to Submitter A.(295)Counsel for New Zealand Police told me,

3.129 This was followed by a personal apology by the Commissioner of Police some time later.

The investigation of Submitter B’s allegations

3.130 The allegation in Submitter B’s case was that the police officer in question had abused a position of trust in relation to a young woman who was placed in his foster care and who later bore his child.

3.131 The alleged abuse began when the complainant was 15, and included allegations of indecent and other forms of sexual assault. After her child was born, the subject of the complaint repeatedly denied paternity, but eventually admitted it. Although an apparently consensual relationship continued between the complainant and the subject of the complaint for a number of years, there was a regular pattern of complaints including allegations of assault and threats.

3.132 The initial investigation undertaken in 1985 when Submitter B was 17 years old and was the result of Submitter B’s lawyer contacting the police on her behalf complaining of intimidation. A statement was taken from Submitter B, which included indecent assault allegations and details of the sexual nature of the relationship before she turned 16. I was concerned at the initial response of the inspector assigned to this investigation, who told the alleged offender that if the paternity issue which brought the complaint to the attention of the police “was rectified the complaint could be satisfactorily resolved without the [complainant’s] statement becoming official.”(297) The police were unable to ascertain who authorised this statement, but offered the following suggestion:

3.133 I note in this respect that general instruction J80, in force at the time, directed police members to make every reasonable effort to resolve complaints as soon as practicable and a generous interpretation of the inspector’s actions would suggest that this is what he was attempting to achieve.(299)

3.134 Nevertheless, when it became apparent that the alleged offender would not admit to paternity, the inspector initiated a criminal investigation after a subsequent interview with Submitter B. The police submitted to the Commission of Inquiry into Police Conduct that the investigation was an exceptionally thorough one. In the course of the investigation, the investigators (although based in the district in which the complaint originated) “interviewed well over 30 witnesses” and “examined a large number of documents and established covert surveillance” of the police officer complained about.(300)

3.135 As far as can be ascertained the investigation, although flawed, complied with applicable police standards and procedures. (However, see my comments on the exercise of the discretion to prosecute in relation to this case at paragraphs 3.191 to 3.198.)

The investigation of Submitter C’s allegations

3.136 Submitter C’s complaint was of rape by an on-duty police officer. The matter was complicated by the fact that Submitter C had no recall of complaining to the police about the matter at the time (1989). The police have no record of any complaint dating from 1989. However, a victim support worker claimed (in 2004) that she had accompanied Submitter C when a complaint was lodged with the police in 1989. I am unable to resolve the matter.

3.137 However, there was an investigation into this incident in 1991. This investigation was at the police’s initiative after rumours about the officer concerned having boasted of having sexual intercourse with Submitter C in a police car whilst on duty. A full investigation was launched into the allegations. Submitter C, who later said she was frightened of what would happen to her because she had been in possession of cannabis on the night of the alleged incident, denied the encounter.

3.138 Nevertheless, the police continued with the investigation and interviewed a number of witnesses. Only one police officer interviewed was able to provide relevant information; however, others were aware of the rumours. (I note, however, that a second police officer, who was interviewed both in 1991 and when the matter was reinvestigated in 2004, provided more detailed information in his statement in 2004 than in 1991.)

3.139 Given Submitter C’s denial of the incident in 1991, and the lack of evidential information available, the police decision not to charge the member with a criminal or disciplinary offence is understandable. However, this officer is a good example of someone who appears to have engaged in the sort of behaviour that, although it may fall short of criminal offending, was entirely inappropriate in the employment/discipline context. I will deal with this issue at greater length in Chapter 5.

3.140 In 2004, Submitter C was approached by members of the police after they received information that suggested the original investigation into her complaint had not been properly undertaken. Submitter C told the Commission that the approach came out of the blue, that she was not advised of the purpose of the visit, and that she found it quite intimidating.

3.141 The alleged offender had in fact died in the interim.

3.142 It appears that Submitter C was not adequately notified that there was a formal investigation into her complaint, and a review of it by the PCA. Counsel for the police told me,

3.143 Submitter D had a relationship with a police officer in 1995 after the officer was involved in his professional capacity in domestic difficulties between the submitter and her former husband. (The officer was to be a witness in a court case against the submitter’s ex-husband.) The submitter alleged that the officer raped her. She laid a complaint with the police the same day, after being encouraged to do so by a nurse at her local hospital.(302)

3.144 The investigation of Submitter D’s complaint was conducted in a professional way. In accordance with the standards and procedures set out in the Manual of Best Practice, immediate steps were taken to secure the scene and gather forensic evidence, as well as to obtain an account from the alleged offender before there was any opportunity for him to leave the area or learn the detail of the evidence gathered. The officer concerned did not return to work after the complaint; in the months between the alleged rape and his subsequent disengagement he was either on sick leave or on formal stand-down.

3.145 Detective Superintendent Burgess gave me his assessment of the investigation:

3.146 One area where the alleged offender’s status as a police officer had an impact on the inquiry was the fact that he telephoned the investigating officer, more than once, with the clear intention of influencing the investigation in his favour. I was pleased to note the investigating officer was well aware of what the alleged offender was seeking to do, and told him that he would “play [the inquiry] straight down the middle”. My assessment of the file indicates that this is exactly what the investigating officer did.

3.147 Submitter D’s understanding of the investigative process, and its conclusions, was different from that of the investigators. In this case the investigating officer was a member of a team that specialised in undertaking sexual assault allegations. The complainant’s statement was taken in the presence of a support person and was delayed a number of times to accommodate the complainant’s needs. Nevertheless, as part of any thorough investigation the investigating officer was required to put things that the police had learned and inconsistencies in the complainant’s statement to her in order to learn the complainant’s explanation for any apparent inconsistencies. I accept that failure to do so would mean that the investigating officer would be remiss in his or her duties. Apart from the obvious impact on the merits of the investigation, failure to put such questions could potentially result in the complainant experiencing much greater distress when she was faced with these questions in cross-examination by defence counsel.

3.148 Although Submitter D’s complaint was investigated correctly, I was concerned about her experience of the investigation and the effect it had on her. For example, she had the impression that the detective who took her initial statement was angry with her for having made a complaint about a policeman, and did not understand her reaction to the explanation given by the alleged offender for what had happened. She was also upset about the way items of evidence were removed from her bedroom after the alleged rape, and said that she had never received back a number of private journals and diaries. The police accepted that the documentation regarding these items was not completed properly, but said the investigating officer was confident they were returned.(304) It is impossible to determine from the police files what the truth of this matter is; however, I believe that the police should have recognised the significant personal value of these items and taken particular care when handling them. I note, however, that the police reject any suggestion of insensitivity or unprofessional behaviour towards Submitter D.

3.149 In hindsight, it may have been that communication between Submitter D and the police was hampered by Submitter D’s medical condition, which was at that time undiagnosed. Although I cannot determine the truth of these matters, I am concerned about the distress that the investigation caused her and I note that investigations need to be sensitive to the many forms of disability or impairment that may affect complainants.

The investigation of Submitter E’s allegations

3.150 The complaint in Submitter E’s case was that a diversion officer (who had been dealing with the complainant’s husband) had used his position to take advantage of her at a time when she was vulnerable and had engaged in sexual activity with her. It was acknowledged that this activity was consensual.(305)

3.151 Detective Superintendent Burgess reviewed the file relating to this complaint:

3.152 The investigation into Submitter E’s complaint was generally handled in accordance with the standards and procedures in place within police at the time. Because the act complained of was entirely consensual there was limited prospect of criminal charges. Nevertheless, the police recognised the inappropriate nature of the liaison and commenced an internal inquiry, obtained psychological and legal advice, and recommended that the alleged offender face disciplinary charges as a result. Those charges were pre-empted by the decision of the alleged offender to retire from the police. Submitter E had a strong sense of injustice about this. Again, this is a subject to which I return in Chapter 5.

3.153 The general inappropriateness of the type of behaviour that this complaint evidences will be discussed more fully in Chapter 6.

The investigation of Submitter F’s allegations

3.154 Submitter F’s evidence to the Commission was that she was raped in 1997 by a recently retired police officer during an overnight assignment with colleagues (who included two serving officers).(307) She said that she was so devastated by what happened that she did not immediately lay a complaint. Soon afterwards, however, a local detective sergeant heard rumours of the incident and approached Submitter F about it. Unfortunately (even if understandably) she said she felt unable to tell the full story to him and alleged only that she had been subjected to an indecency. She told me that later, in 1998, and with the assistance of a lawyer, she felt able to tell her full story.

3.155 Submitter F also told the Commission that she had been intimidated and treated inappropriately when she was interviewed during the police investigation. The police officers concerned rejected these allegations in evidence to the Commission.(308)

3.156 The police inquiry that eventuated appeared to follow appropriate procedures. It included the execution of warrants at the alleged offender’s address and at the place of the alleged incident, and a forensic examination and acoustics testing at the place where the complainant alleged that the offending took place.

3.157 The district commander recognised the potential for allegations that the investigation was biased in favour of the alleged offender and dealt with this matter by appointing a detective inspector from a different district who had no personal association with any of the participants.

3.158 I was initially concerned at the time taken to interview the alleged offender in this case. However, I was informed that this decision was based on a desire to have all evidence available to the investigating officer before this interview took place, and I accept that.

3.159 A detective inspector who reviewed this investigation on behalf of the PCA in 1999 was critical of the police for failing to initiate a more thorough inquiry after the complainant’s informal discussions with a detective sergeant in 1997 after the latter had approached her about rumours that he had heard. In their submissions to me the police rejected this criticism as unfair. They offered the following explanation:

3.160 Unfortunately Submitter F had told the detective sergeant only that the alleged offender had tried to have sex with her and that she had resisted. Had her original complaint been of rape, he might well have taken steps to preserve possible forensic evidence in anticipation of Submitter F gaining the confidence to complain formally. This would have included trying to persuade her to undergo a medical examination.(310)

3.161 Submitter F later made a complaint to the PCA that the detective sergeant who first approached her about a possible offence had in fact been a friend of the alleged offender, and had discouraged her from making a complaint. It was clear that the detective sergeant did know the alleged offender. However, the PCA (after an investigation by a police inspector, and the PCA’s own assessment of the files) found that the officer had acted appropriately and had taken advice on how he should handle the matter. I discuss in more detail in Chapter 7 the difficulties and appropriate response of the police when faced with rumours of sexual assault against police members.

The investigation of Submitter H’s allegation

3.162 One of Submitter H’s concerns about the investigation of her complaint (see paragraphs 3.68 to 3.73) was the alleged offender had six weeks’ notice that he was to be interviewed about the matter. The police did not accept that there was any prejudice as a result of the delay in interviewing the alleged offender. The alleged offender was aware of Submitter H’s complaint from the outset because she had told him about it.

3.163 In general the investigation into Submitter H’s allegation was conducted in an appropriate manner and in accordance with the Child Abuse Policy. The police appear to have taken Submitter H’s subsequent complaints of harassment seriously, and believed that they had been addressed by the issue of a warning and trespass notices to the alleged offender. The police told me that after this the submitter indicated that the “drive bys” had become far less frequent and that she had not made any notes of them.

3.164 Submitter H told me she did not receive copies of the trespass notices so had no assurance that the alleged offender had been properly served and did not feel that she could use them if she needed to. The police submitted that copies of the notices were placed on the file at the local police station for ease of reference if any breach was reported and that it was standard for a further copy to be provided to the complainant. They said that if Submitter H did not receive a copy then that was an oversight and if she had drawn their attention to that then copies would immediately have been made available to her. I cannot resolve this issue.

3.165 Police Internal Affairs and the PCA also became involved in the matter. As required, the local superintendent notified Internal Affairs of the inquiry by telephone at the outset, but there was no further follow up for some months. This resulted in a delay in referring the matter to the PCA, as required by both legislation and the general instructions. The police accepted that they should have alerted the PCA to the inquiry within days of Submitter H’s complaint being received – even though the PCA note in accordance with standard practice they would have deferred any investigation until the criminal inquiry was completed. (I discuss the timeliness of the notification to the PCA in paragraphs 4.51 – 4.58.)

The investigation of Submitter I’s allegation

3.166 Submitter I made an allegation of physical assault by a number of police officers in 1986. This was investigated at the time and is not the subject of my inquiry. In 2003, he alleged for the first time that he had been sexually violated during the same incident that he complained about in 1986. It is this investigation that comes within my terms of reference.

3.167 When Submitter I made this allegation, there was discussion between him, his lawyer, and an officer about how it should be advanced. The discussion appears to have given rise to a misunderstanding. Submitter I told the Commission that he thought the police would be approaching him for an interview, that he waited some four months before writing to them, and that although an interview followed soon afterwards he did not understand the cause of the delay. However, the police produced a statement by Submitter I’s lawyer in which he said that Submitter I had been very distressed at that time of the initial discussion, that the officer had dealt with the matter in a professional and sympathetic manner, and that he (the lawyer) had advised Submitter I to reflect on things and contact the police, either directly or through him, if he wanted to take it further.

3.168 The detective sergeant who investigated the matter reviewed the 1986 file, spoke to several of the original witnesses, and went to considerable lengths to find a recent complaint witness to whom Submitter I may have spoken. In addition, he travelled overseas to interview the two alleged offenders.

3.169 Counsel for the police submitted that the investigation had been exemplary:

3.170 The investigation into Submitter I’s allegation appeared to meet the standards, and comply with the procedures, set out in police policy.

Examples of police practice from the Operation Loft files

3.171 An example of an inadequate recording of a complainant’s statement can be found in a 1991 investigation involving an associate of the police. The interviews of the complainants in this investigation were not carried out or recorded with any sort of accuracy.(312) Detective Superintendent Burgess agreed that in these circumstances a video interview or question and answer statements detailing exactly what was alleged would have been preferable to job sheets with the investigating officer’s interpretation on them. (313)

3.172 An example of the police failing to explore all avenues of inquiry is provided by a 1988 case when the investigating officer failed to address the Crown solicitor’s that further enquiries be made.(314) Indeed, when this file was reconsidered by the police in 2004 as part of Operation Loft, the district commander stated,

3.173 Similarly a complainant in a 1998 case was contacted again in 2004 when it became apparent that the original interview with the alleged offender had been inadequate.(316) In this case the investigating officer had failed to put the substance of the allegations to the alleged offender.

Areas to be addressed

EXERCISE OF THE DISCRETION TO PROSECUTE

3.177 Detective Superintendent Burgess told me, “the average [annual] prosecution rates for all sexual offending in New Zealand since 1980 is 39.8% with a low of 26.8% and a high of 54.5%.”(317) These figures compared favourably with the prosecution rates of overseas countries.

3.178 Nevertheless, I was interested to learn of several cases where the police were satisfied that the incident complained of had occurred, but were unable to lay criminal charges for a variety of reasons including

3.179 As mentioned in Chapter 2, a Crown solicitor’s decision to lay criminal charges is governed by the Solicitor-General’s guidelines. 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. These principles apply with equal force where the suspect is a police officer or associate of the police.

3.180 The police are similarly guided by the Solicitor-General’s guidelines. Witnesses appearing before the Commission told me that the police can lay charges only where there is some chance of success in securing a conviction and that, in their view, it is neither in the public interest nor in the complainant’s interest to proceed with a prosecution where there is a high likelihood that the trial will end in acquittal.(319) Detective Superintendent Burgess told me,

3.181 Detective Inspector Stephen Rutherford, Crime Manager for the Counties Manukau CIB, explained the reasons why his staff will take a matter to court only if they are likely to get a conviction:

3.183 According to Superintendent Wildon, at the completion of a sexual assault investigation into a member of police, the investigator prepares a summarising report, which should outline the course of the inquiry, summarise the available evidence on each aspect of the complaint, and make appropriate regarding the outcome. This should include the investigator’s view of whether the complaint should be upheld and, if so, what action might be appropriate as a consequence. The investigator’s report is then passed to the district complaints manager, who prepares a short report either concurring or disagreeing with the initial recommendation. In some districts the district complaints manager passes the file directly to Professional Standards; in other areas the file goes first to the district commander for a further review. In many cases, the district also arranges for legal advice to be taken from the local legal section and sometimes from the local Crown solicitor.(322)

3.184 If the district takes the view that criminal charges are appropriate, it is common for the alleged offender to be charged without further reference to Professional Standards at the Office of the Commissioner. The full file will be referred at a later date to Professional Standards for a formal review of the investigation, and then to the PCA for external review; but this will not occur until all criminal proceedings have concluded.(323)

3.185 When reviewing an investigation where charges have not been laid at district level, Superintendent Wildon and his staff at Professional Standards at the Office of the Commissioner will consider if the district was correct not to lay charges. I was informed that it is not uncommon in serious cases for the file to be sent to the Crown Law Office for legal advice, even if advice has already been taken at district level.(324)

3.186 If Professional Standards concludes that criminal charges should be brought (and this will generally be a decision reached in consultation with an assistant commissioner or above), then the matter is referred back to the district for prosecution. Where Professional Standards concludes that criminal charges should not be laid, then the whole file, including all the various reports prepared up to that point, is referred to the PCA for a final external review.(325)

3.187 According to section 28(2)(b) of the PCA Act 1988, the PCA may, if it disagrees with the police’s decision, recommend that criminal proceedings be considered or instituted against any member of the police. It cannot, however, direct the police to do so. I was informed, “The police have taken and continue to take the view that these decisions are matters for them.”(326)

3.188 Superintendent Wildon described the police awareness of complainants’ possible reactions to a decision not to lay charges against a member of police:

Evidence of police practice concerning the discretion to prosecute

Actions after the investigation of Submitter B’s allegations

3.191 In 1985, it was determined that there was not enough evidence to sustain a criminal charge against the officer who was the subject of Submitter B’s complaint (see paragraphs 3.130 to 3.135). Although there was no direction in the police policy documents that a charge should be laid only where there was a greater than 50 percent chance of conviction, I was informed that this represented good practice in 1985 as it does now.(328) The investigating officer summed up the position:

3.192 As counsel for the police acknowledged,

3.193 Although I understand the reasoning behind the decision not to prosecute the subject of Submitter B’s allegations in a criminal court, I was concerned that the 1985 investigation did not result in disciplinary charges relating to the sexual relationship with Submitter B. (I do note, however, that the alleged offender faced other disciplinary charges.) The police addressed this issue in submissions to me and acknowledged, “The failure to pursue disciplinary charges arising from the sexual relationship, either in 1985 or [later], was unfortunate. The Police do not seek to defend it.”(331)

3.194 Submitter B’s complaint was reconsidered in the early 1990s. I was concerned that the inspector who undertook this task believed that the “intervention of a Tribunal Hearing in 1985 precludes my reconsideration of acts occurring before 1985”.(332) Counsel for New Zealand Police informed me,

3.195 The inspector did, however, consider whether charges based on the post-1985 sexual relationship could be the subject of criminal or disciplinary charge. He concluded that consensual activity while the alleged offender was off duty had “little to do with [the officer’s] employer”,(334)namely the police, and that the police would struggle to prove, beyond reasonable doubt, Submitter B’s allegation that some of the activity occurred while the alleged offender was on duty. As counsel for the police told me,

3.196 Submitter B’s complaint was brought to police attention again in 1996. The police considered whether it was possible to bring charges against the officer concerned under section 131 of the Crimes Act 1961 (sexual intercourse with a girl under care and protection)(336) but found that “There was no evidence capable of supporting such a charge;”.(337)

3.197 This review did not, however, give detailed consideration to a charge of indecent assault, and the police do not dispute that a more careful consideration of a charge of indecent assault should have been undertaken. As the police told me,

3.198 I agree with these comments. Moreover, the consequences of police inaction and wrong decisions may have contributed to (or at least failed to mitigate) Submitter B’s ongoing difficulties.

Actions after the investigation of Submitter D’s allegations

3.199 Though the initial police inquiry into Submitter D’s case (see paragraphs 3.143 to 3.149) was completed in little more than one month, it took approximately five months before the final decision not to prosecute could be made, and a further two months before disciplinary charges were brought. The delay in this case arose because of, first, the decision to seek an independent review from the Crown Law Office on whether criminal charges should be laid; secondly, the need to undertake further inquiries at the request of the Crown law Office; and thirdly, the need to prepare separate disciplinary charges (and have them approved by the Deputy Commissioner of Police) once it had been finally decided not to lay criminal charges. Completion of these steps took from the start of July 1995 until 20 December 1995. Disciplinary charges were served on the officer on 19 January 1996.

3.200 The Deputy Solicitor-General offered the opinion that a conviction was unlikely (a conclusion that accorded with that of the police), and as a result no charge was laid. Nevertheless, the Crown Law Office recognised that the behaviour of the alleged offender appeared to

3.201 On the same day as disciplinary charges were served on the officer, he applied to disengage from the police. Those charges therefore did not proceed. I will discuss this matter further in Chapter 5 because it seems to me to be inappropriate that the employment situation of an officer in the circumstances cannot be dealt with more expeditiously.

Actions after the investigation of Submitter F’s allegations

3.202 The police concluded that there was insufficient evidence to warrant laying a charge in respect of Submitter F’s complaint (see paragraphs 3.154 to 3.161). The detective inspector assigned to the investigation provided an explanation to the Commission:

3.203 The exercise of the discretion on whether to bring disciplinary charges also arose in the case of Submitter G, who complained of an inappropriate, very intimate, body search whilst in police custody in August 1997. (341)

3.204 The police investigation into this matter was completed competently and expeditiously. Submitter G’s complaint was received by the PCA in early November 1997. It was immediately referred to the police for investigation. The investigation was undertaken by an inspector; and his report recommending that the complaint be upheld was completed by 12 December 1997. The district commander agreed with his recommendation, and Internal Affairs reported to the PCA on 31 December 1997 confirming that the complaint had been upheld.

3.205 Counsel for the police told me that the body search of this complainant was

3.206 The senior sergeant who ordered the search was subsequently counselled.(343) However, the other members did not face any form of disciplinary sanction. I note that the inspector who conducted the investigation was confident that lessons had been learned and there would be no recurrence. Although recognising that the decision not to invoke any sanction against those members was a matter of judgment, I nevertheless found the decision surprising.

Areas to be addressed

3.207 My conclusion on current police practice is that the decision to prosecute or not is generally made in accordance with the applicable standards and procedures, and takes into account all the admissible evidence available to the police at the time. Although some of the files raise other concerns with aspects of police practice, I believe the New Zealand public can be confident that, in the words of counsel for the Police Association, “there is not in fact a significant level of criminal sexual activity within the Police Force which has gone untried.”(344)

3.208 Despite this, a number of the submitters and complainants in the files expressed concern that the person complained of had not been charged with criminal or disciplinary offences. Some of these complainants appeared to have little knowledge or understanding of why the person against whom they had made their complaint had not been charged. Little, if any, of the reasoning behind the decision not to charge, or the reasons why the person complained of could avoid disciplinary charges by leaving the police, had been understood by the complainant at the time. I address this issue in the next section.

COMMUNICATION AND MANAGEMENT OF COMPLAINTS

Communication with complainants

3.211 Similarly, in response to a 1993 case involving allegations of sexual violation by rape and indecent assault, the PCA reported to the Commissioner of Police as follows:

3.212 The police explained to me that communication with complainants has always been the responsibility of investigators. They considered practices had improved in the past decade:

3.215 I was told by Ms Brott that part of her role was to explain these decisions to complainants:

3.216 Clear lines of communication with complainants will inevitably be of even greater importance when investigations take longer than expected. As noted earlier in this chapter, the average investigation was found to take approximately six and a half months.(351) The absence of clear lines of communication with complainants also may lead to suspicions that the police are “protecting their own” or that the complaint is not being taken seriously because it is against a police officer.

3.217 The police told me that, irrespective of the level of communication, it is inevitable that a number of complainants could not accept that their alleged assailant was not going to be charged and were understandably upset by the decision.(352) One support service provider told me that the police were very good at explaining the process to the victim and decisions not to bring charges.(353) But such decisions can be hard to understand, even when communicated sensitively to a complainant. Given the risks associated with any suggestion that the police have been tardy in carrying out internal investigations, have failed to investigate a complaint to the required standard, or have failed to communicate decisions adequately to complainants, I believe it is important that complainants and their support people are given

3.218 The Police Association submitted that police members under investigation as alleged offenders are also inadequately communicated with:

3.222 However, it is also clear that such good working relationships are not a matter to be left to chance. I heard evidence that the quality of these partnerships varied across the country and had developed on an ad hoc basis.(355) Creating and maintaining good working relationships requires considerable attention on the part of both the police and the organisations at a local and regional level. There is an important distinction between support groups and the police that needs to be maintained to ensure that the respective roles of each remain clear. A careful, systematic, and professional approach to the relationship needs to be a high priority for police. I would expect to find an openness and respect for each other’s roles.

Funding issues

3.223 It is a matter of considerable concern that support services do not appear to have adequate or consistent funding. The support groups exist on a mixture of grants from Government departments and private fund-raising. By way of comparison, I note that Victim Support services are 60 percent funded by the Government through the Ministry of Justice, and I believe a similar secure funding base should be established for the volunteer services for victims of sexual assault.

3.224 Representatives of DSAC told me that there is inadequate funding for their work and most of their time is given voluntarily. I was told that the Auckland District Health Board funds two and a half days of doctors’ time per week; for the remainder of the week doctors are expected to provide their services free. Again, a case needs to be made for a better funding regime for these services.

3.225 Although I am not in a position to comment on where funding for support groups best comes from, it is important that it be nationally consistent and adequate to ensure support services are available to all people who find themselves victims of sexual assault.

Complaint management

3.226 Differences emerge between districts in respect of the mechanisms for managing a complaint. When reading the recent investigation files provided by the police, I was struck by the many examples of good practice, particularly from Central, Canterbury, and Southern Police Districts. In particular, I note the high level of oversight of internal investigations in the Central, Canterbury, and Southern Police Districts, where, for example, investigating officers are sent letters reminding them of the requirements under the general instructions regarding internal investigations.(356) These letters may also specify the time frames in which an investigation is to be completed and time frames for updating the district commander or district complaints manager. The same or similar practices may occur in other districts, but this is not apparent from the files I reviewed. I believe that a high level of oversight is a useful way to manage complaints and would like to see the practice of reminding investigators of their obligations (and monitoring compliance) applied consistently throughout the country.

3.227 The letters given to investigating officers did not, however, include reference to the other relevant policy documents that govern the investigation of sexual assault complaints against police officers, namely the Adult Sexual Assault Investigation Policy and the “Sexual Offences” section of the Manual of Best Practice. Given that it is still early in the roll-out of the adult sexual assault investigation training, it is advisable that the requirements of the ASAI Policy are set out early in the investigation so that all internal investigators know exactly what is expected of them. This would ensure that a complainant received all the benefits to which he or she is entitled under the policy, for example having a qualified support person present during interviews with the police, and being interviewed in an area that is comfortable, secure, private, and safe – and not in a suspect interview room. Although I did not receive evidence suggesting that the latter situation had happened since the policy had been implemented, there nonetheless remains a real possibility of complainants being disadvantaged unless the attention of investigating officers is specifically drawn to the policy and manual at the outset of all such investigations.

Ensuring compliance with standards and procedures

MONITORING THE INVESTIGATION OF COMPLAINTS AGAINST THE POLICE

3.234 I was told that before 1983 and the establishment of Internal Affairs (now known as Professional Standards) there was no national section responsible for overseeing or reviewing internal complaints. Complaints were handled entirely at district level and there was no mechanism for ensuring consistency of approach from district to district.(357) One of the objectives of the current centralised Professional Standards section is to try to ensure that similar cases are resolved in a consistent way throughout the country. A reviewer will assess the investigator’s recommendation, both in light of his or her professional experience, and against other similar cases that have been through Professional Standards.

3.235 Under the current system there are, at a minimum, four or five levels of oversight of the investigation of complaints against police officers:

3.237 The investigator is required to provide a monthly update to the district professional standards manager regarding the progress made with the investigation. This may be forwarded through the investigator’s area controller or manager. I was informed that, during the course of an investigation, “It is normal for the member to provide ongoing feedback on progress of the investigation and to co-operate with the Professional Standards group.”(358) The district professional standards manager subsequently forwards a schedule regarding the progress of all complaints to Professional Standards at the Office of the Commissioner, which forwards the schedule to the PCA.

3.238 The level of information contained within the monthly updates to district professional standards managers differs between districts. I was told that there is no national monthly reporting template used consistently throughout the country.(359) Instead, two district commanders, Superintendent Lammas and Superintendent Nicholls, have developed their own templates for investigators to use when providing an update on the progress of the investigation.(360) Superintendent Lammas believes that the benefits of using his form are that the investigators “have to answer the hard questions like what have they done in the last month, what is remaining to be done, how long is it going to take, …”. (361) He did, however, acknowledge, “maybe some of the districts have something better.”(362)

3.239 I heard no evidence from other districts of similar models, nor am I aware of any from my assessment of the files. Considering the practical advantages of a nationally consistent reporting mechanism, I am surprised that these templates are not utilised elsewhere. Although this is a minor example, it illustrates my concern that there is no national consistency of approach. There is nothing peculiar to the Central or Eastern Police Districts that warrants them taking a different approach on this matter from other districts. Although district initiative is to be applauded, best practice should be shared and, where appropriate, nationalised.

3.240 At the completion of an investigation, the investigator prepares a summarising report, which outlines the course of the inquiry, summarises the available evidence on each aspect of the complaint, and makes on the outcome and appropriate disposal of the complaint. The investigating officer’s manager or area commander subsequently checks this report and the complaint file before forwarding it to the district professional standards manager.

3.241 It is the role of the district professional standards manager to review the file and prepare a short report either concurring or disagreeing with the investigating officer’s findings and . This may also include obtaining legal advice from either the local police legal section or sometimes from the Crown solicitor. The files indicate that the police will generally err on the side of caution and take legal advice wherever there is a question regarding whether or not to prosecute a member accused of sexual assault.(363)

3.242 In some districts the district professional standards manager passes the file directly to Professional Standards at the Office of the Commissioner. In others the complaint is forwarded to the district commander for review. Central Police District is in a unique situation in that the district commander undertakes the role of district professional standards manager himself.(364) As a result all complaints against members of the police come to his office and all investigations are overseen by him.

3.243 By comparison, in other districts, for example in Canterbury, Eastern, and Auckland Central Police Districts, a complaints manager oversees all internal investigations, and as a general rule files do not get reviewed by the district commander, although the district commander is kept informed of the progress of an investigation into any serious allegation.(365) This is not meant as a criticism of either method of operating, but is an illustration of the differences of approach taken by districts. Although it may not be possible for all district commanders to take on the same role as the district commander of Central Police District, I can readily see the merits in his approach. As Superintendent Lammas observes,

3.244 Time and workload constraints mean that it is generally not feasible for district commanders to oversee the investigation of all complaints against members of their staff. It is, however, important for district commanders to be aware of all complaints received about their staff in order to monitor the health of their staff and district and to ensure that all complaints are dealt with properly.

Monitoring of complaints against police officers at national level

3.245 As noted earlier, Professional Standards at the Office of the Commissioner is charged with overseeing and reviewing the handling and outcome of all complaints against serving police officers, on behalf of the PCA.(367) As part of this role, and during the investigation of the complaint, Professional Standards requires districts to provide monthly updates regarding the progress of the investigation. These are usually short updates and are forwarded by Professional Standards to the PCA so that the PCA, too, can monitor the progress of an investigation.

3.246 I noticed, when reviewing the investigations into allegations of sexual assault by members of police, examples of districts failing to provide monthly updates to Professional Standards at the Office of the Commissioner or failing to complete the investigation within the required three-month time frame specified in police policy documents.(368) As a result the police failed to update the PCA regularly on the progress of these complaints. In the majority of these instances, Professional Standards took steps (even if not always on a monthly basis) to remind the district of their obligation to provide these updates or provide reasons why the investigation had not been completed. However, this action was usually taken several months after the updates had ceased.(369) This suggests that, even though the investigation of a complaint against a member of the police is monitored by Professional Standards, the effectiveness of this monitoring may be limited. I was told by Superintendent Wildon that the present system works as well as it can with the resources it has; however, there are generally around 200 files awaiting attention at any given time. (370)

3.247 Professional Standards at the Office of the Commissioner receives the full file and all reports after it has been reviewed by the district professional standards manager and at the conclusion of the inquiry (or any criminal proceedings). The file is subsequently reviewed by a senior officer (or by contract staff, such as a retired senior officer). Superintendent Wildon described the review process:

3.248 In cases where it is difficult to determine if there is sufficient evidence to support a criminal charge, Professional Standards may seek independent legal advice from Crown Law. If a decision is made to charge an alleged offender the file is referred back to district for prosecution.

3.249 If Professional Standards concludes that no action, either criminal or disciplinary, should be taken, then the whole file, including all of the various reports prepared up to that point, is referred to the PCA for a final external review. Superintendent Wildon outlined this stage:

3.250 It is apparent from the files that I reviewed that the Professional Standards review process plays an important part in ensuring that investigations are conducted appropriately. In particular, it ensures that appropriate witnesses are spoken to, all avenues of inquiry are followed up and that appropriate general instructions are complied with. For example, in one file an investigating officer had failed, in his letter to the complainant, to advise her of her right to contact the Police Complaints Authority if she had concerns about the investigation. This oversight was picked up by the district commander who rectified the situation. The investigator was also notified of the need to comply with this general instruction in the future.(373)

3.251 There does not, however, appear to be any mechanism within the Professional Standards system for ensuring that the investigation of a complaint complies with relevant policies and instructions other than the general instructions relating to internal investigations.

3.252 Although the Professional Standards oversight process provides a structured check on investigations involving complaints against police officers, including complaints of sexual assault, neither it nor the audit and assurance processes appear to have considered that those investigations do not in many cases comply with the ASAI Policy; in particular, investigators specifically trained in adult sexual assault investigation are not routinely used. It does not appear that the ASAI Policy features in the “audit” thinking. It is also of concern (as will be noted in Chapter 7) that an inappropriate statement can be recorded on a file and go unnoticed despite going through various levels of checking and review.(374)

MONITORING THE INVESTIGATION OF COMPLAINTS AGAINST ASSOCIATES OF THE POLICE

3.253 There is no equivalent review system in place for dealing with complaints against police associates. Instead the same review process that is applied to any allegation of sexual offending is used. This means if charges are laid the review will form part of the “normal prosecutorial function”. If charges are not laid the investigation is reviewed as part of the “supervisory review function”.(375)

3.254 I saw examples of both types of review functions in operation and it is apparent that these systems will in most instances identify if there have been any flaws in the investigation. For example a 1995 case involving an allegation of sexual violation by rape was sent to the police legal section for review in order to determine whether charges should be laid. The file was returned to the investigating officer requesting further investigation into “major discrepancies of fundamental importance between [the complainant’s] statement and that of the suspect.”(376) Similarly further inquires were undertaken in a 1991 investigation after the officer in charge of the station reviewed the file.(377)

3.255 Although I recognise the likelihood that inadequacies in an investigation will be identified as part of the prosecutorial or supervisory review function, I remain concerned at the lack of formal policies and procedures governing an investigation into an associate of the police. As I have mentioned earlier the lack of independent oversight of these types of cases suggest that greater care must be taken to ensure that they are, and are perceived to be, independent. I reiterate my earlier comments that investigations into police associates (and members of the police) would benefit from a new general policy on independence and identifying and managing conflicts of interest.

NATIONAL CONSISTENCY, DISTRICT AUTONOMY, AND CONSTABULARY INDEPENDENCE

3.256 I was told that there are various mechanisms through which the Commissioner of Police ensures that district practice complies with relevant standards and procedures. The police consider that the most significant way in which effective oversight is achieved is through the chain of command. District commanders are charged by the police commissioner with ensuring that each police district conforms to national policy; in turn, district commanders place responsibility on their area commanders to ensure that this occurs. Counsel for the police told the Commission that districts are subject to performance management reviews, as well as internal and external audits, to ensure that the “output” of each station, sub-area, area, and district is constantly monitored.(378) Any issues raised by the internal and external audits, as well as operational and administrative risks that have been identified, are reported to the recently established Assurance Committee (see paragraph 3.262 below), which is chaired by the Commissioner of Police.

3.257 Under the current police management and organisation structures the district commanders have the mandate, delegations, and responsibility for the operation of their districts.(379) Although this structure grants the district commanders considerable autonomy (including the autonomy to develop appropriate policies and procedures to meet local needs), I was told that they do not act in isolation.(380) New Zealand Police sets limits on district discretion:

3.258 The 12 district commanders have geographic operational responsibility for their areas but also sit as members of the Police Executive Committee and share collective responsibility for strategic and policy decisions within the organisation.(382) The Police Executive Committee makes to the Commissioner of Police, who takes the decisions, based on the executive committee’s , collegially with his deputies.(383)

3.259 District commanders are required to prepare an annual district plan, which provides strategic direction for the district over a 12-month period. They are required to file weekly reports on events that have occurred within their district. Police Commissioner Robinson required district commanders to immediately appraise him of any significant event occurring within their districts via an email to the Office of the Commissioner and the commissioner’s support group (including the Board of Commissioners and other key managers within the Office of the Commissioner).(384) District commanders are also subject to a performance appraisal undertaken annually by the Deputy Commissioner of Police, with a progress meeting held six monthly.

3.260 I was told that under Police Commissioner Robinson, the district commanders had three- or four-monthly videoconferences with the commissioner, the deputy commissioners, key managers, and, on occasion, external experts. During these meetings Police Commissioner Robinson would explore some aspect of the district’s performance. This could involve a detailed exploration of either some aspect of policy and the implementation thereof, or it could involve an operational issue regarding a particular crime type.(385)

3.261 The Commission heard that, in addition to the normal management reporting, the Organisational Performance Group provides an audit of various aspects of policing and performance in each district every six months. This group looks at a range of criteria, which will in the future include adherence to the Adult Sexual Assault Investigation Policy.(386) The Organisational Performance Group can spend up to three days in the district interviewing staff, and going through files and records.(387) The group subsequently produces a report for the Commissioner of Police, which is provided to the Police Executive Committee member responsible for the district and to the district management team. The Police Executive member then meets with the district commander and his or her management team to discuss the report.

The Assurance Committee

3.262 As part of the review of the governance arrangements he instituted in 2005, Police Commissioner Robinson broadened the role of the previous Audit Committee and reconstituted it as an Assurance Committee. Police Commissioner Robinson told me that the Audit Committee had outlived its usefulness and that he had in the past year revamped it.(388) The Assurance Committee is made up of the Commissioner of Police, the two deputy commissioners, and three external members.(389) This committee “monitors both the internal and external auditing to which the Police are subject, and assists in the identification and monitoring of risks that the organisation may face.”(390) Police Commissioner Robinson said that the committee met on a monthly basis in the current initial phase, and added, “I would anticipate once the Committee has greater confidence and assurance around our own operation it will probably become a quarterly meeting.”(391)

Constabulary independence

3.264 Dr Young said that in his view the original doctrine (which, in its extreme form, held that a constable was answerable to the law and the law alone) is no longer applicable to a modern police force subject to statutes and accountabilities in a manner similar to other state agencies.(393)

3.265 Dr Young also explored the question of whether the concept of constabulary independence requires that police districts are autonomous, particularly in the implementation of policy:

3.266 I understand that the concept of constabulary independence, although important in order to ensure independence from executive control in relation to matters of operational law enforcement, is properly not advanced as a reason for the Commissioner of Police, and through him the district commanders, to resist scrutiny of the way that the police are managed, administered, and controlled.(395)

Oversight of smaller and rural police stations

3.268 I found that there had been several incidents at small stations during the period covered by my inquiry. The case of Submitter A, discussed at paragraphs 3.123 to 3.129 , involved a complaint made at a small station. The associate against whom the complaint was made had a good relationship with the police officers in the local station, and as a result there were several issues involved with the quality of the investigation into her complaint. A 1996 police report said,

3.269 As noted elsewhere, Submitter A subsequently received an apology from Police Commissioner Robinson in person in 2000.(397)

3.270 I also found incidents that appeared to arise as a result of senior management not being aware that policing standards had deteriorated (even though this had been so for some time), or from a general lack of supervision and oversight from outside the station(398):

3.271 In response to the issues I identified, the police provided evidence regarding the management of one-, two-, and three-person stations. Senior police officers set out the line responsibility for supervising small stations and illustrated the different methods of supervision undertaken in different districts, given the discretion individual managers have to select methods designed to suit their own particular requirements. Information was also provided on a national policy issued in September 2005 to guide district evaluations and decision-making associated with the assessment of “1-2-3 person” station staffing.

Supervision and training of staff

3.272 Assistant Police Commissioner Marshall told me that supervision of small stations is the responsibility of the area commanders. In each district there are about four areas, each of which is overseen by an area commander (at inspector level). In many areas there are also sub-area controllers (at senior sergeant level) with direct oversight of small stations. It is the responsibility of sub-area controllers and area commanders to make sure that stations under their jurisdiction are functioning correctly. District commanders keep pressure on area controllers to ensure that all stations are performing at a high level.(405) How this is carried out is largely up to each district and area, depending on the number of small stations it has and their geographical spread. (406) “Cluster groups” of areas of a similar size and demographic type have been formed to provide area commanders with an opportunity to share best practice.(407)

3.273 As an area commander, Inspector Philip Jones gave evidence on how he manages small stations within his area of Otago Rural, a large area geographically but relatively sparsely populated and thus having a lot of small stations. He outlined how he supervises the small stations through

3.274 Inspector Jones identified training as a “major factor in ensuring that my staff are operating effectively, safely, professionally and in compliance with relevant policy and law.”(409) The inspector monitors attendance at training and makes use of the database on training kept by the regional Training Service Centre to identify what training has been completed, and what is to be completed by individual members. He told me that at their monthly district executive meeting each area commander is also briefed by the person in charge of the training centre about training issues, and any gaps in key training of individual members.(410) It is the responsibility of the sub-area supervisor to ensure that a staff member is trained in critical areas.

3.275 Other senior officers discussed the role of training in the supervision of small-station staff. Superintendent Lammas, District Commander, Central Police District, said that in his district staff of small stations are part of the training programme that involves staff in larger stations. Also, about every two years, Central Police District has a rural seminar.(411) However, he went on to tell me that meeting the training needs of a small number of staff spread over the larger rural areas can become more problematic, and staff in more isolated rural areas can miss out on training opportunities. This can occur despite such things as the rural seminars.(412)

Internal control and audit

3.276 Superintendent Lammas said that in his district there is an internal control process and internal audit that is completed on a monthly basis.(413) This is to a large extent an administrative process but it ensures that someone from outside the station visits on a regular basis. Superintendent Lammas endeavours to visit each small station once a year; he expects that the area commander will visit more frequently, and the person in charge of that station should visit the station at least four times a year.(414) An individual officer’s performance is measured using crime statistics, traffic statistics, each member’s productive output, and the member’s relationship with the community.(415)

3.277 Inspector Jones told me that in terms of internal control measures, Otago Rural has two systems: a monthly internal control audit, and a three-monthly internal control audit, both checking different areas. The monthly audit focuses on the more critical areas (such as the completion of charge sheets) and high-risk areas (such as the care and use of weapons), as well as the administrative areas. The inspector outlined how they have a first, second, and third line check in their audit systems. The first line is the people in the station; the second is the sub-area supervisor; and the third line is the inspector himself.(416) As area commander, Inspector Jones identified this line supervision as the most significant method of managing and monitoring performance in the rural environment.(417)

3.278 The inspector has implemented an audit process in the past four years whereby a retired senior sergeant comes around every six months and reviews or audits the area’s internal audits and highlights any deficiencies.(418) This is a local initiative, undertaken in addition to the police internal audit function, which audits district performance against a Statement of Service Performance.

Community relationships and feedback

3.279 Other senior police officers also discussed the importance of community feedback in the monitoring of small stations. Superintendent Lammas said that in his district the member’s relationship with the community is monitored through community comment, an assessment of any complaints generated, and an assessment of the member’s relationship with other agencies such as iwi, the local council, and the media.(419) Similarly Superintendent Nicholls told me that his district has a number of formal consultative groups including meetings and liaison with representatives of the Government entities of Education, Housing, Corrections, Conservation, Inland Revenue, Accident Compensation Corporation, Work and Income, and Child, Youth and Family, as well as with local authorities and the district health board, sports groups, local iwi, probation services, and the Chamber of Commerce. These relationships are maintained and provide a mechanism through which issues of community concern can be raised.(420)

3.280 Assistant Police Commissioner Marshall told me that senior officers are expected to stay in close touch with their sole-charge constables, and to visit the communities themselves on a regular basis. Part of a senior officer’s job is to liaise closely with the leaders of local communities (for example mayors, local rotary clubs, neighbourhood watch coordinators, school principals); if the relationship between the community and its local constable were to sour for any reason, then, at least under the structure in place now, the local officer’s supervisor would hear about this quickly. He believes that the present structure constantly demands accountability at all levels, and the performance of every station is closely monitored.(421)

3.281 Superintendent Lammas explained that officers in charge of small stations are very carefully selected.(422) Police officers in small stations in his district also have a more direct relationship with senior police staff, including with himself as district commander, than staff of the same rank in larger stations. He said that because these staff are essentially the face of the police in smaller communities, they are more visible than their colleagues in larger stations, and thus he takes a far more active interest in them than he takes in other staff at constable or sergeant level.(423)

3.282 Inspector Jones also regularly visits the small stations in his area. When he makes these visits he already has information on any issues that may be coming up in relation to that station, based on the internal control reports and the monthly meetings with the sub-area supervisors, or from general feedback received.(424) He told me that feedback from the community is also a very useful source of information about the performance of small stations.(425)

3.283 I asked Superintendent Lammas whether problems in small stations could go undetected today and he replied, “it could, particularly if it was an officer by him or herself”. However he went on to say “We have an environment where people are much more willing to complain than 10 or 20 years ago.” (426) Similarly, Assistant Police Commissioner Marshall said that in small communities it is easier to determine what is happening because the people expect service and are very quick to complain. (427) Superintendent Nicholls also said that in rural communities issues of performance would readily be brought to the notice of the district management. There is a significant level of community interaction with police, particularly with the command levels of police within these communities. He said he would be extremely surprised if a significant policing issue in the district remained undisclosed in the environment in which they currently operate.(428)

3.284 Inspector Dawn Bell, New Zealand Police Human Resources Manager: Recruitment and Appointments, also drew my attention to some recent national initiatives regarding small stations. She informed me that a survey has been undertaken of one-, two-, and three-person stations. The survey focused on identifying the risks associated with small station policing and has generated the establishment of a small station focus group to discuss issues of interest. She advised that the survey report is currently being prepared.(429)

National initiatives

3.285 Inspector Bell also explained that the Human Resources section recently issued a national policy designed to guide district evaluations and decision-making associated with the assessment of one-, two-, and three-person police station staffing. The policy states that regular evaluation and re-assessment of one-, two- and three-person stations will be undertaken to achieve an appropriate balance between providing for the safety and wellbeing of rural station members, meeting the needs and expectations of the community, and operational policing requirements. The policy establishes a method of regular data collection and sets out, among other things, that district Human Resources managers are responsible for consulting with members, managers, and supervisors to determine if the data for the station indicates that current policing practices are not working effectively and to consider interventions and policing practices that may achieve the desired outcomes.(430)

3.286 The objective of the policy is to

3.287 I note in the third bullet point above that this is a national policy that also allows for unique district features to be recognised. As such, I think it is a very positive and useful example of an application of nationally consistent standards while still allowing for some regional discretion. I believe this approach could usefully be extended beyond the management of one-, two- and three-person station staffing to the monitoring, evaluation, and reporting methods employed in respect of smaller and rural stations more generally.

Adequacy of the management structures and systems