September 22, 2008
Between the lines: fisking the IPCA report
There was, in the nineties, a very good Brit drama called Between the Lines. A cynical look at official corruption.
It's probably apt to apply a bit of that to the IPCA report on Dunedin Police. A group of senior Dunedin coppers were overheard several weeks ago bemoaning the report as "damning", and the SST repeated the epithet this morning.
TV One and TV3 news were less impressed, but that's the problem with daily journos – they don't read between the lines and they often don't understand what they're reading.
Investigate this morning claimed vindication based on this report, and that's because our allegations about ACC private investigator Peter Gibbons were proven with bells on. Of course, Investigate didn't need the IPCA report for that because we knew it when we published it back in mid-June last year – we had the documents and affidavits. The IPCA had no option but to find that Gibbons had used his son in law police officer to obtain search warrants and the conflict of interest had been appallingly managed by Dunedin Police.
But here's where Investigate and the IPCA differ.
The IPCA says this:
The Authority stresses that, in making this finding, it has found no evidence of actual bias on the part of Constable Henderson, whether in the form of corruption or attempting to pervert the course of justice. Nor is there any evidence of misconduct or neglect of duty by Constable Henderson. It is notable that Constable Henderson himself raised with his superiors the fact that his appointment to the 'ACC desk' would involve direct dealings with his father-in-law. He received assurances that the relationship did not prevent him fulfilling that role.
I'll accept that Henderson was possibly a reluctant participant in the corruption, but let's look at the big picture for a moment.
He is the son-in-law of a corrupt former cop turned private investigator, Peter Gibbons. Gibbons is a bit of a local Dunedin identity, prominent in the local surf club and pub gaming machines in the past. However, as Investigate reported in June 07, he also perverted the course of justice by lying on oath in court – pinged incidentally by court transcripts obtained by Investigate.
The magazine also has affidavits from eyewitnesses to Gibbons – whilst a senior cop – ringing up drug dealers to tip them off about a pending police raid so they could get rid of the evidence before squad cars arrived.
So you are married to the daughter of a criminal like Peter Gibbons. You then find yourself mysteriously assigned, by your superiors, to work on ACC files for, lo and behold, your father in law.
You know three things. Firstly, you didn't ask for the role. Secondly, your bosses put you in the position, KNOWING of the conflict of interest. Thirdly, your bosses used to work for Peter Gibbons when he was in the police.
You raise an issue of potential conflict of interest but are told, don't worry about it, we'll take care of it.
What message do you take from that? As a junior cop, you do what you are told.
Henderson was nothing more than Gibbons' rent boy. The corrupt Dunedin Police old boys network put him there deliberately, as part of their ongoing service to Gibbons, knowing that Henderson was unlikely to squeal.
Gibbons was hiring Dunedin police to work for his investigation firm too, so there was an unspoken advantage for police looking for future career prospects to stay on the right side of the former CIB head.
Now let's look at some of the specifics.
107. Constable Henderson himself raised with his superiors the fact that his appointment to the 'ACC desk' would most likely involve direct dealings with his father-in-law, Mr Gibbons. He told the Authority's investigators he was concerned about the perception of a conflict of interest.
"When I was given the portfolio I was uncomfortable with it at the time purely because people can perceive that he is doing dodgy warrants for his father-in-law."
108. On raising these concerns with Detective Senior Sergeant Croudis, Constable Henderson received assurances that the relationship was noted and did not prevent him fulfilling the 'ACC desk' role.
Now Kallum Croudis is one of those who formerly worked under Gibbons, and Croudis popped up again in the IPCA report as what police internally refer to as "the fireman" – the guy who dampens down potential controversies.
In Croudis' case, having assigned Henderson to work on cases benefiting his father in law, Croudis magically turns up at the beginning, the middle and the end.
10. In August 2006, Mr Gibbons prepared a draft affidavit, in consultation with ACC, to support applications for warrants to search Mr Van Essen's home and two other premises he was connected with. The ACC examining officer then discussed the affidavit with Detective Senior Sergeant Kallum Croudis of the Dunedin CIB. Detective Senior Sergeant Croudis noted that no offences were listed in the draft, and that offences would need to be specified.
11. The ACC examining officer then instructed Mr Gibbons to work with police on applications for the warrants.
12. The officer assigned to work with Mr Gibbons and arrange the search warrant applications was Constable Andrew Henderson, who at that time worked in the enquiry section and had responsibility for liaising on ACC matters. He is Mr Gibbons' son-in-law. Constable Henderson's supervisors were aware of this relationship and had sanctioned his involvement with the ACC 'portfolio'.
13. Mr Gibbons showed Constable Henderson the ACC investigation file including the draft affidavit he had prepared, and Constable Henderson prepared an affidavit to support the search warrant applications. The affidavit contained information from Mr Gibbons' ACC investigation file and stated the nature and focus of the proposed search.
14. It stated that, according to an ACC investigation, Mr Van Essen had "been suspected of fraudulent activity for many years" and that the ACC investigation had confirmed business activities through which Mr Van Essen was alleged to be generating income.
15. In relation to offences, Constable Henderson's affidavit stated:
"VAN ESSEN has committed criminal offences punishable by imprisonment. These include making a false statutory declaration, using a document for pecuniary gain."
16. The affidavit further stated: "Making a false statutory declaration using a document for pecuniary gain is an offence punishable by imprisonment under the Crimes Act 1961."
17. Under the Crimes Act 1961, 'making a false statutory declaration' and 'using a document for pecuniary gain' are separate offences. It is not clear from the affidavit whether Constable Henderson regarded the two as separate offences or as elements of the same offence.
18. The search warrants, which were granted on 31 August 2006, similarly stated that evidence was being sought in relation to "an offence of Making a false statutory declaration using a document for pecuniary gain".
19. The affidavit contained no description of any statutory declaration, nor any document allegedly used for pecuniary gain. Nor were any such documents attached to the affidavit as exhibits.
20. No supervising officer appears to have been shown the completed affidavit in draft form.
21. The affidavit was submitted to the Dunedin District Court, and a Deputy Registrar issued three search warrants on 31 August 2006.
So Gibbons, an experienced senior cop, doesn't identify any alleged offences at all in his early draft? Croudis and Gibbons hand file to junior. Junior fails to correctly define offence or even prove there was one, and Croudis pays no attention anyway.
The IPCA is too gentle on these guys. It appears Henderson, after saying something to the IPCA and apparently dropping father in law and his bosses in it, recants in a second interview and becomes the fallguy:
87. Mr Van Essen complained that the affidavit was based on false information.
88. The affidavit does not contain a detailed description of any statutory declaration made by Mr Van Essen, nor of any document Mr Van Essen could have used for pecuniary gain. Nor is any such document attached to the affidavit as an exhibit, and neither of the alleged documents exist in the police file.
89. Constable Henderson initially told the Authority's investigators that he saw a statutory declaration in the documentation Mr Gibbons showed him. Mr Gibbons denied this. He told the Authority's investigators that he had "no knowledge of Mr Van Essen supplying a false statutory declaration", and Mr Van Essen's ACC file contains no such declaration.
90. Constable Henderson later told the Authority's investigators that the reference in the affidavit to a false statutory declaration may have been a "cut and paste error". He made a similar statement to Inspector Lane Todd, who reinvestigated Mr Van Essen's complaint for police.18 That 'error' was crucial to the allegation that Mr Van Essen made a false statutory declaration.
The IPCA found that Henderson did not appear to have independently verified the information his father in law – who sat on Henderson's family trust – had given him.
103. Whilst Constable Henderson might well have scrutinised the evidence presented to him, it is not known how much weight he afforded Mr Gibbons' belief that a search warrant was justified, nor the extent to which he applied independent scrutiny to the evidence.
104. Furthermore, there was insufficient independent supervision of Constable Henderson's decision-making.
Why is it still not known how much weight Henderson gave Gibbons' claims? And as for why there was insufficient independent supervision, that one's easy – the bosses were in it donkey deep and were not, themselves, "independent". They paid lip service to managing conflicts of interest:
109. Police did take some steps to manage apparent conflicts of interest in Mr Van Essen's case. These included:
• Detective Inspector Pinkham deciding that Constable Henderson should take no further part in the Van Essen case; and
• Detective Sergeant Inglis declining to undertake the internal police investigation into Mr Van Essen's complaint.
110. However, in other respects, police did not prudently manage apparent conflicts of interest. These included:
• assigning Constable Henderson to the 'ACC desk', and failing to put in place additional oversight or reporting requirements to ensure that any conflict or apparent conflict was mitigated;
• assigning Constable Henderson to take part in the search of Mr Van Essen's home, when Mr Gibbons was also taking part in that search;
• assigning Constable Henderson to handle Mr Van Essen's Official Information Act request (see paragraphs 147 and 148 below); and
• assigning Detective Sergeant Inglis to investigate the theft complaint.
When Bruce van Essen complained to police about the actions of Gibbons, his complaints were basically sidelined by Kallum Croudis and Brett Roberts. Van Essen paints a little word picture
"After I lodged complaints, the Police went through the motions. They found that the Police had done nothing wrong; I believe that they covered up my complaints."
"Detective Senior Sergeant Kallum Croudis appointed Detective Sergeant Roberts to investigate the Complaints. This investigation was signed off by Dave Campbell and another Inspector."
"Everyone in Dunedin knows that these people worked under Peter Gibbons in the Dunedin Police in the 1980's and1990's. The report confirms the further potential conflict of interest "when former Police Officers - such as Mr Gibbons – deal on a professional basis with former close colleagues who still work for the Police. In simple terms the risk is that members of the public might perceive that the former officers are being 'looked after by their mates'." (para 113)."
"Mr Gibbons said in an email to the ACC that the Complaints to the Police had been 'disposed of'. Of course he knew this because his mates had looked after him."
Are you starting to join the dots?
The IPCA reported the dots, but didn't have the guts to link them.
111. Because of the personal relationship between Constable Henderson and Mr Gibbons, a fair-minded observer might reasonably question whether Constable Henderson would bring an impartial mind to the applications for the search warrants,21 given his relationship with his father-in-law. 22
112. It is important to emphasise that there is no evidence of an actual conflict of interest or that Constable Henderson had any financial interest in the outcome of the search warrant applications. Nor is there any evidence of impropriety.
Let's take a look at that point for a second. Henderson did have a financial interest in the outcome of the search warrants: Gibbons was the independent trustee on his family trust. Acting adversely to the interests of Gibbons could have had a negative financial and personal impact for son-in-law. Gibbons, of course, had a huge financial interest riding on the outcome of his warrant applications, and Henderson knew it. The IPCA got timid, it appears. It does not appear to have explored the potential financial pressures on Henderson at all.
113. Perceived conflict of interest questions may also arise when former police officers – such as Mr Gibbons – deal on a professional basis with former close colleagues who still work for police. In simple terms, the risk is that members of the public might perceive that the former officers are being 'looked after by their mates'.
127. Either Constable Henderson should have been assigned to duties that would not involve professional dealings with Mr Gibbons, or any professional dealings he had with Mr Gibbons should have attracted additional oversight and reporting requirements. This did not happen.
No, and again the dots are screaming from the page for attention. Henderson was put on the ACC cases by his father-in-law's good mates – his own bosses – who told him not to worry about any conflict of interest issues. Of course not, the old boys network was taking care of it.
It may well have remained undiscovered and undisclosed had Investigate magazine not stumbled on official records disclosing the linkage between Gibbons and Henderson.
Interestingly, the IPCA admits even it had not been told of the conflict.
Issue 8: Why did Detective Sergeant Roberts' report not mention the relationship between Constable Henderson and Mr Gibbons?
131. In interviews with the Authority's investigators, Detective Sergeant Roberts said he did not mention the relationship between Constable Henderson and Mr Gibbons in his report because he did not see it as an issue. He also said Constable Henderson's involvement in the ACC portfolio had been sanctioned by his superiors, and indicated that he did not see it as his role to second-guess their decision.
132. Detective Sergeant Roberts should have reported the close family relationship between the two men. Although the Authority has found no evidence of actual bias, misconduct or neglect of duty on the part of Constable Henderson, his relationship with Mr Gibbons did involve an apparent conflict of interest and was relevant to the investigation. It should have been noted in Detective Sergeant Roberts' report.
And everyone is let off…the IPCA shrinking back from attacking the old boys network in any detail.
On the mysterious theft of a third memory stick, the IPCA again fails to go for the jugular. A police job sheet clearly recorded three memory sticks were seized from van Essen, and only two were returned. Because van Essen couldn't prove which officer or person had subsequently nicked it, the IPCA says the police decision not to take the theft issue further was justified. Even so, there were negative findings:
141. In most respects the theft complaint was properly investigated. The Authority accepts that there is no evidence of theft in respect of any individual, and therefore Detective Sergeant Inglis' decision to take no further action on the theft complaint was appropriate.
142. However, the investigation should have frankly addressed the discrepancy between the record of items seized and the job sheet.
143. This discrepancy also highlights the care that must be taken in recording exhibits.26
144. Finally, whilst it is surprising that Detective Sergeant Inglis undertook the theft investigation having declined to investigate the original complaint on the grounds of a conflict of interest, there is no evidence of misconduct on his part.
Odd, though, that you would feel conflicted handling a complaint, but not conflicted rejecting the complaint. Even odder that your 'investigation' failed to cover the most blindingly obvious piece of evidence at all – the police job sheet confirming three memory sticks were seized.
Detective Sergeant Inglis must be incompetent.
Interesting, too, that police failed to tell the IPCA about the theft complaint:
145. Under section 15 of the Police Complaints Authority Act, police were required to notify the Authority of all complaints as soon as practicable after the complaint was received.27 In this case, the Authority was not notified of the theft allegation when police received it, and only became aware of it upon receipt of Detective Sergeant Roberts' report, which was completed in November 2006.
How many 'mistakes' can happen in the one case before the IPCA calls this waddling, quacking, feathered farce out for what it really is – a duck.
The picture looks even dirtier when you see Detective Inspector Ross Pinkham giving assurances to ACClaim members that info they provided would NOT be disclosed to ACC or its staff, and then the moment the info was provided Pinkham invited Gibbons in:
149. Detective Inspector Pinkham assured members of ACClaim that, aside from information relating to the two offences alleged against Mr Van Essen, no personal information from the computers seized during the search would be made available to ACC or its private investigators. Detective Inspector Pinkham's assurance was consistent with the Privacy Act 1993.28
150. Detective Inspector Pinkham discussed ACClaim's concerns during a meeting with Sergeant Kindley, Constable Henderson and Detective Senior Sergeant Croudis.
151. Mr Gibbons and an associate subsequently spent a day working with an e-crime specialist at Dunedin, viewing and copying material from the computers. The cloned hard drives stayed in police possession. However, no record was made of what Mr Gibbons and his associate viewed or copied. Therefore, it cannot be said with certainty whether information unrelated to the investigation was accessed.
No record was made, it cannot be said with certainty…blah blah. It was just another unfortunate bureaucratic error, in a long list.
So to conclude…the factual matrix uncovered by the IPCA is indeed damning. The bureaucratic whitewash tone of its report lessened the impact, but not for those capable of reading Between the Lines.