Commission of Inquiry into Police Conduct
16 April 2004
NEWS RELEASE
RULING OF 16 APRIL
The following ruling was issued today by the Commission. It deals with matters raised in the hearing held on 8 April
2004.
Commission Of Inquiry Into Police Conduct
PUBLIC HEARING
8 APRIL 2004, 10AM
Mary Scholtens QC, Counsel Assisting the Commission
Kristy McDonald QC and David Boldt, for the New Zealand Police
John Upton QC for the Police Complaints Authority
Ms Susan Hughes for the Police Association
RULING OF THE COMMISSION
DATED APRIL 2004
Introduction
1 At our first public hearing on 22 March, Ms McDonald QC, counsel for the NZ Police, advised that there were
issues upon which definition or delineation were required and it was agreed that we would hold a special public hearing
on 8 April to deal with them.
2 Subsequently we received a request by Ms Hughes on behalf of the Police Association, and letters have been
received particularly with regard to the issue of representation and the costs of it, which have also been raised on
previous occasions.
Police Complaints Authority Act 1988
3 The issues raised by various Counsel overlap to an extent and have in part been overtaken by the passage of
time.
4 There have been a number of questions relating to the meaning and effect of s32 and 33 of the Police Complaints
Authority Act 1988. These provisions are subject to a statutory amendment which is presently before Parliament. All
agreed that, until the passage of that proposed legislation through the House, it was non-productive to consider this
issue until it is clear what the applicable law will provide.
Time Span
5 At the hearing on 22 March, we made clear that our current intention was to cover a period of 25 years, that is
from 1 January 1979 to the present time. This time span is intended to cover complaints made during that period. That
may have to be reviewed in light of issues which come to attention, but in the meantime that is the span in which we
have interest. Ms Hughes raised the question as to whether the existence of a complaint to the Police prior to 18
February 2004 (being the date of the Order in Council constituting the Commission) was essential. We are not prepared to
rule out the possibility that a complaint made after that date may need to be considered. We are unable to see any
substantial reason why, if that occurred, we should not consider whether the Police response was satisfactory.
Localities
6 An issue was raised as to the meaning in paragraph 2(a) of the Terms of Reference of the phrase “other relevant
localities”.
7 In our view the Terms of Reference read as a whole make it clear that there is an incident involving Ms Nicholas
arising in Rotorua and an incident involving Ms Garrett arising in Kaitaia which we must consider. We are also required
to consider any other incidents which emerge, and the practice in the localities of any such incidents will need to be
considered as well.
Definition of “Sexual Assault”
8 The question arose as to what was meant by the term “sexual assault” used in the Terms of Reference. Counsel
suggested that the definition in s185A of the Summary Proceedings Act would be appropriate and we agree. Section 185A
provides a useful and convenient starting point.
9 At this stage it is difficult to contemplate anything not covered by s185A. As in all matters the Commission
cannot, in advance, circumscribe its inquiry or eliminate relevant matters which may require investigation and
consideration. If any matter of potentially criminal behaviour which does not fall within the categorisation in s185A
does arise, then it will have to be considered. All parties who could be affected will be provided with hearing
opportunities on it.
Unprofessional Behaviour
10 A question has been raised as to what is meant by “unprofessional behaviour” which we will be required to
consider.
11 The precise words of the Terms of Reference are:
“… the conduct, procedure and attitude of the Police in relation to allegations of sexual assault by members of the
Police or associates of the Police or by both, the extent (if any) to which unprofessional behaviour within the Police
in the context of such allegations has been or is tolerated, and the manner in which such allegations have been or are
investigated and handled by the Police, whether directly, or on behalf of the Police Complaints Authority.”
12 As Ms McDonald anticipated, there can be no argument that the term “unprofessional behaviour” would include
anything that was less than an objective investigation into a relevant complaint and the exercise of the discretion to
prosecute being undertaken other than in a scrupulously fair and impartial manner. In other words, whether the approach
towards complaints against Police officers or those closely associated with them have been treated with the same measure
of independence, objectivity and fairness which it would be anticipated would exist with regard to all other allegations
of sexual offending.
13 It was acknowledged by all Counsel that, when the Terms of Reference are read as a whole, the Commission’s
fundamental task relates to actual assaults and other sexual offending which has been complained about and in respect of
which there is dissatisfaction with the response. There is not an open brief for the Commission to consider all
complaints made against Police officers in respect of every matter, and the way in which they have been responded to.
Taking some words out of the Order in Council and reading them divorced from the recitals could be quite misleading. The
Commission has a specified and defined area, not a limitless roving brief.
14 Questions have been asked as the meaning of the phrases “sexual activity that gives cause for concern” and “the
general propriety of the conduct of members of the Police in respect of sexual matters” and “personal behaviour
including sexual conduct”.
15 We reject any suggestion that the Commission should confine this Inquiry solely to allegations of unlawful
sexual conduct. It is clear that questions have been asked about areas of conduct which go beyond that, but we
understand the concern is as to how much further it goes.
16 The Commission is not going to be involved with generalised questions of morality of members of the Police. Like
every other member of the community they are free to engage in private sexual practices providing that conduct is lawful
and it does not impact upon their role as a Police Officer.
17 In our view the starting point for this part of the Inquiry will be evidence from both the Police and the Police
Association as to the circumstances in which action has been initiated against members of the Police during the last 25
years in relation to conduct which is not unlawful. In hearing that historical narrative, we would anticipate evidence
being provided as to why action has been taken in the way that it has when it relates to non-criminal activity.
18 We anticipate that there will have been changing patterns. We are obviously interested to know of the present
situation and to hear views as to what needs to occur in the future. All of this must involve a nexus between the
behaviour which is being considered and the status of the individual as a Police officer at the time that it occurred.
19 We are unwilling to define in any more exact or limiting way the areas in which we will be interested. In part
our areas of inquiry will be influenced by the nature of the complaints which are made to us. If, as a result of the
generality of our approach, it is necessary for further or additional evidence to be called as the Inquiry progresses,
then we accept that that is the consequence of our task.
Representation and Costs
20 Ms Hughes, on behalf of the Police Association, and a number of lawyers on behalf of Police officers or former
Police officers have again raised questions relating to legal representation for interested persons who might be
adversely affected by the findings of the Commission.
21 It is important to stress that the Inquiry is not an adversarial hearing and that the normal approach which
applies in a criminal trial is inappropriate and would be unhelpful.
22 A number of submissions have been made on the basis of apparently reported comments about the possibility of the
Government providing financial assistance for legal representation for people who have complained about the actions or
inactions of the Police. We have no evidence about this possibility. It is not an issue which has been initiated by the
Commission or which has in any way been influenced by us.
23 We will not, at any stage in our task, be reaching conclusions on the basis of media reports. We will deal with
proper evidence presented in a proper manner with opportunity for challenge and confrontation where that is necessary or
appropriate. What the Government considers to be necessary or appropriate in this regard is their business.
24 Our starting point is that evidence which we require to hear will be led by one of the Counsel Assisting the
Commission. We will, however, place no impediment in the way of any person who wishes to have their own lawyer present
at any stage preliminary to or in preparation for a hearing, or who wishes to have Counsel sitting with them during a
hearing.
25 We will require that Counsel Assisting the Commission lead all relevant evidence, so it is difficult to see the
circumstances in which a person who has evidence of complaint to make would need (or could be materially assisted by)
the presence of their own counsel. That will be a matter for them, but at this early stage in the Inquiry we do not
anticipate the need for their having legal assistance.
26 There is some neutral historical material that we will require to hear where Counsel assisting us may conclude
that the leading of this sort of evidence would better be done by others. The potential for that to occur with witnesses
can be explored between Counsel as the need arises.
27 This Inquiry is about what historically occurred and what is now occurring and, as a consequence of this
Inquiry, what should happen in the future.
28 In the course of hearing such evidence, it is foreseeable that the actions or inactions of some people who were
Police officers at the relevant times will come under scrutiny and could be the subject of criticism. We certainly will
be vigilant to ensure that anyone who is in that category is, at all times, free to have their own Counsel with them,
either in the preparatory stages of the process or at the hearing itself. Their ability to lead evidence will always be
limited to matters which are strictly relevant to our Terms of Reference. Cross examination controlled in the same
manner will be a possibility. Not only do we wish to avoid trawling through matters which will not assist in the
determination of any of the issues with which we have been charged, but we must avoid anything which could have an
effect on simultaneous processes.
29 As we have frequently said, the Commission has no funding to meet legal costs for anybody. The normal provisions
with regard to civil legal aid. As matters develop, we may reach a view that a particular person or persons are in a
special position where separate representation for them is of pivotal importance. At that time and in those
circumstances we may be persuaded that we should express a view on the importance of separate representation. Anything
at this stage would be pure conjecture and speculation. We have not yet reached the point that stories have even been
received from anyone in a form from which Counsel Assisting can decide whether there is evidence which needs to be
called and to which a response may be required.
30 The Commission will not be bulldozed into making premature decisions about matters which will always be the
concern and responsibility of others. The Commission will ensure that, at all times and in all circumstances (whether a
witness has separate representation or not) the principles of natural justice are strictly complied with and rights of
individuals who could be in jeopardy properly protected and maintained. There is no point in extravagant and continual
demands being made to the Commission in an area in which it is powerless to respond in any event.
SUMMARY
31 We acknowledge the need for everybody to understand the general parameters within which the Commission will
work, so that proper preparation can be progressed. However, it is inappropriate for the Commission to curtail potential
areas of inquiry which could require attention.
32 In a nutshell, our approach is that the Inquiry is based on concerns of people who allege that having been
inappropriately treated by the Police/their close associates in a sexual manner, and having complained about it, they
remain dissatisfied about the acts or omissions of Police officers in response.
33 Initially we will cover a 25 year period. We will have regard to the general position within the Police in New
Zealand but will look specifically at localities where we find examples of this having occurred on the evidence which is
called.
34 Obviously we will be concerned about behaviour which could be unlawful. We will be anxious to know whether there
is other sexual conduct that impinges upon, or has a nexus with, an alleged wrongdoer’s position as a member of the New
Zealand Police. We are not undertaking a general inquiry into the moral behaviour of Police officers in their private
capacity which properly has no consequence for their work as a Police officer.
35 We acknowledge that there are serious and legitimate concerns in the community about the difficulty which people
have in raising concerns and complaints about those who abuse them sexually. Investigating that would be a far reaching
inquiry in itself and is not our brief, except to the extent that the phenomena is more difficult or different where the
alleged wrongdoer has been a member or close associate of the Police.
36 This is an Inquiry in which evidence will fundamentally be presented by Counsel appointed to assist the
Commission, and individual representation and private advocacy will not be necessary. It will be accommodated for those
who wish to have that facility, providing their representatives maintain strict adherence to relevance.
37 The financing of such representation is not within the power or control of the Commission and those requiring
assistance will need to seek it elsewhere. We are conscious of our duty to ensure that anyone who could possibly be
subject to adverse finding or criticism by the Commission is afforded every opportunity to respond to allegations made
against them and to confront and challenge those making the allegations.
38 At this very early stage, while wishing to assist with general responses to questions of delineation and
definition, it is fundamental that everyone understands there can be no watertight or inflexible limiting.
Dated at Wellington this day of April 2004.