1. Introduction and Context

1.1 The Commission of Inquiry into Police Conduct was convened to inquire into and report upon the conduct, procedure, and attitude of the New Zealand Police in relation to sexual assault allegations made against members of the police or associates of the police.

EVENTS LEADING TO ESTABLISHMENT OF THE COMMISSION

1.3 After the publication of Ms Nicholas’ allegations, a Kaitaia woman, Ms Judith Garrett, came forward also alleging that her rape complaint against a police officer had not been investigated properly at the time it was made. (1)

1.4 The publication of these allegations raised serious concerns in the public mind about how New Zealand Police investigates allegations of sexual assault by members of the police.

1.5 On 3 February 2004 the Prime Minister, Rt Hon Helen Clark, announced that the Government would establish a commission of inquiry to carry out a full, independent investigation into the way in which the police had dealt with these allegations. In her news release of 3 February 2004 the Prime Minister said, “The Inquiry will focus primarily on issues of process. It will have a comprehensive brief, including the ability to make recommendations to avoid such circumstances arising in the future.” (2)

1.6 Also on 3 February 2004 the Commissioner of Police announced that he had initiated criminal investigations into the alleged offending by current and former police officers. (3) This announcement followed the establishment of a police investigative team in late January 2004. The investigation into these matters was known as Operation Austin.

COMMISSION OF INQUIRY APPOINTED

1.7 On 16 February 2004 the Prime Minister and the Attorney-General, Hon Margaret Wilson, announced that the Hon James Bruce Robertson and I would be the two Commissioners to conduct the commission of inquiry into the allegations against members of the police with respect to sexual conduct. (4) Justice Robertson was at that time a senior and experienced High Court judge and was also President of the Law Commission. I brought to the task a long career in the public service.

1.8 The warrant for the Commission of Inquiry into Police Conduct, which sets out the appointment and terms of reference, was given by Order in Council on 18 February 2004. However, as a result of the difficulties arising from concurrent criminal investigations and prosecutions, the Commission of Inquiry into Police Conduct was the subject of a subsequent Order in Council on 2 May 2005 that modified the directions to the Commission, its membership, and reporting time.

Initial Order in Council

1.9 On 20 February 2004 the Prime Minister announced the terms of reference for the Commission of Inquiry into Police Conduct. (5) On the same day the Order in Council of 18 February 2004 was published in the New Zealand Gazette.

1.10 The terms of reference are published in full as Appendix 1.1 (see Volume 2). In summary, the terms of reference directed the Commissioners to inquire into and report upon

Order in Council of 2 May 2005

1.12 On 21 April 2005 the Attorney-General, Hon Dr Michael Cullen, announced that the Government had altered the mandate of the Commission of Inquiry into Police Conduct so that it could complete its work without prejudicing any criminal prosecutions and ongoing investigations. He said that the Commission would focus on how the police responded in general to the sexual assault allegations and whether people making them were treated appropriately. (6)

1.13 On 2 May 2005 the Governor-General, by Order in Council, issued new directions to the Commission and changed its membership and the reporting time. (7). The Commission was directed to conduct its preliminary investigations in private and limit its public hearings; to make findings of a more general nature than those that were envisaged at the time the Commission was appointed; not to investigate any complaints that were the subject of current or ongoing investigations by the police, or were the subject of criminal proceedings before the courts; and not to give names or particulars that were likely to lead to the identification of the person who made an allegation of sexual assault or of any person alleged to have committed the assault. This Order in Council is published in full as Appendix 1.2.

1.14 At the same time, I was appointed as sole Commissioner. The Hon Justice Robertson asked to be discharged because of demands resulting from his responsibilities as a judge and President of the Law Commission. Shortly thereafter he was appointed as a judge of the Court of Appeal.

COURSE OF THE INQUIRY

1.15 As explained above, the initial course of the inquiry changed because of the new directions to the Commission issued in May 2005. These directions formalised the Commission’s 2004 decision to put on hold its review of several complaints that had become the subject of police investigations into alleged criminal offending by current or former police officers. Accordingly, the Commission did not see any material related to Ms Nicholas’s or Ms Garrett’s allegations, or any other material related to such police investigations. The move from consideration of particular cases to developing findings of a more general nature represented a significant shift in the work of the Commission. However, it should also be stressed that from its inception the Commission was directed not to determine the guilt or innocence of any person involved in the complaints considered.

Processes of the Commission

1.19 Commission staff and I reviewed the Operation Loft files provided by New Zealand Police (see paragraph 1.29 below). These police records translated into over 600 separate physical files and contained around 55,000 documents.

1.20 I have provided a detailed account of the processes of the Commission as Appendix 2.

Rulings and memoranda by the Commission

1.23 Appendix 3 lists the Commission’s rulings and memoranda in chronological order. Those rulings and memoranda that can be made public are published in full as Appendices 3.1 to 3.9.

Parties to the inquiry

1.24 The New Zealand Police, Police Complaints Authority, and Police Association were formally joined as parties to the inquiry on 22 March 2004. On 13 August 2004, on application to the Commission, the Police Managers’ Guild was also accorded party status. Appendix 2 provides more detail of these entities and their legal representation.

1.25 Appendix 4 provides relevant background information on New Zealand Police.

1.26 Chapter 4 describes the structure and work of the Police Complaints Authority.

Time span of the inquiry

1.28 Although the earliest date for complaints to come within the scope of its inquiry was firmly established, a Commission ruling in April 2004 (see Appendix 3.1) left open the option of considering complaints that were lodged after the initial Order in Council on 18 February 2004. In the event, 11 complaints made after February 2004 were considered by the Commission. None dated from 2006.

Police investigation files and other documents

1.29 The Professional Standards section at the Office of the Commissioner was directed by the Commissioner of Police to locate and retrieve all police investigation files relating to sexual offending by police since 1 January 1979. The search of police records to identify cases that related to the Commission’s terms of reference was named Operation Loft.(8)

1.30 The search categories used by police included sexual offending, disgraceful behaviour, harassment, sexual harassment, unlawful act, and internal discipline. As a result of their search, the police identified 185 separate records (or files) of investigations into allegations of sexual offending in which the alleged offenders were police officers and the allegations were made after 1 January 1979 and were within the Commission’s terms of reference.(9)

1.31 Operation Loft also identified 43 investigations into allegations of sexual offending by police associates. Police files are not categorised according to an alleged offender’s association with police. The search for these records therefore relied on local knowledge of the alleged offending or some form of public complaint. (10)

1.32 The police told me that the records I received (about 55,000 documents) covered all the cases from the 25-year period in which the Commission was interested and included all allegations of sexual misconduct that fell within the Commission’s terms of reference, whether or not they were subsequently found to be proved.(11)

Police Complaints Authority documents

1.33 In addition, 19 Police Complaints Authority files related to Operation Loft cases were provided to the Commission where it proved possible to secure signed consents to disclosure under the 2004 amendment to the Police Complaints Authority Act from the complainants who had triggered the investigation.

1.34 I did not therefore always receive the corresponding Police Complaints Authority file for each police investigation that I reviewed. However, the police file usually contained copies of correspondence between the police and the Police Complaints Authority. This enabled me to make an assessment of the interface between these two organisations.

Police policies and procedures

1.35 The police also provided extensive documentation covering the structure of the organisation, codes of conduct, sexual harassment and human resources policies, and other information relevant to the work of the Commission.

Review of documents

1.37 It would have been possible to conduct the entire inquiry on the basis of a document review and consideration of written communications and submissions. However, during the initial phase of our inquiry under the first Order in Council, several people, and the family of one deceased woman police officer, had been led to expect that they would either be called to give evidence or that their cases would be receiving individual attention. To meet these expectations I held 10 individual hearings into these cases, focusing exclusively on the police handling of the particular submitter’s complaint. (See Appendix 2 for further detail.)

1.38 All other cases were reviewed on the basis of the files alone. The complainants involved in these files had chosen not to come forward to the Commission. In many instances it was some years after the alleged incident, and I felt that any contact by the Commission could possibly stir up emotions or raise expectations when neither would be appropriate.

1.39 The police files were useful in assessing the way the police had carried out certain types of investigations. They enabled me to identify any weaknesses or failures in the processes used in those types of investigations during the period in question, and to illustrate particular types of behaviour or attitude apparent within the police at various times. Particular examples, where mentioned, are not presented as findings about any individual police officers.

Legislative matters affecting the inquiry

1.43 The Commission had carried out its work and gathered its evidence on the basis that the Police Amendment Bill (No 2) would in due course proceed. However, in March 2006 the Hon Annette King, Minister of Police, announced a comprehensive review of the Police Act 1958 and the Police Regulations 1992, which, she said, might take up to 18 months to complete. In the light of that review, the Minister noted, the Police Amendment Bill (No 2), which had sat in the order paper for several years, had been withdrawn.(12)

1.44 My report takes this development into account. In view of the fact that the bill has now been withdrawn, and new legislation, or replacement legislation, is not likely to be introduced until 2008, I have identified several key changes that I believe should be implemented as soon as practicable, in advance of this major legislative review. The proposed changes are discussed in later chapters in relation to improving police disciplinary processes and implementing a code of conduct for sworn police officers.

Responses to the establishment of the Commission

1.45 Counsel for New Zealand Police told me that the establishment of the Commission of Inquiry into Police Conduct had operated as a significant catalyst for review and change within the police.(13) Since the establishment of the Commission in 2004, the police have launched a range of initiatives in anticipation of the Commission’s report and likely recommendations. These are discussed in more detail in Chapter 8.

Reporting

1.49 After the extension to my reporting date in September 2006, I determined that there were two issues on which I would like to report in advance of my final reporting date of 30 March 2007. These encompassed matters that were the subject of proposed legislation or ongoing policy work under review at the time, and therefore I believed that my deliberations and recommendations on these topics required urgent consideration by the Government. I subsequently prepared two interim reports; one of these related to the PCA, and the other to the police disciplinary system. However, counsel for the PCA and counsel for New Zealand Police respectively made submissions that it would not be appropriate to release interim reports on these two issues at that time. After considering their submissions I decided it was unnecessary, at that time, to release the interim reports.

PUBLIC EXPECTATIONS OF THE COMMISSION AND THE POLICE

1.55 The Commission was also conscious of public expectations and the expectations of individual submitters concerning its inquiry. The May 2005 Order in Council, which directed the Commission to make its findings of a more general nature, dampened some of those expectations. However, readers may still be disappointed that the report’s examples of police investigations into complaints made against members of the police or associates of the police are couched in general terms with identities protected (in accordance with the Government’s direction). Nevertheless, in preparing its report, the Commission was acutely aware that the examples of police investigations that it reviewed involved real people, on whom the events in question have sometimes had a lasting impact. The examples provide valuable lessons from the past, which should not be forgotten, and insights and benchmarks for the future.