David Johnston (WA, Liberal Party) Share this | Link to this | Hansard source

When rugby legend Phil Kearns accidentally reversed his car over his 19-month-old toddler in the driveway of his Mosman home in Sydney, did any right-minded person suggest or demand that he be charged or prosecuted for what was just a plain or garden variety tragic accident? Of course not, and no action was taken by New South Wales Police. So you would think that the same thing would apply when the now leader of the state opposition in Western Australia accidentally discharged a .22 rifle which injured the thumb of his adult son.

In fact Paul Omodei was charged with the heaviest offence on the Western Australian statute books relating to non-intentional bodily harm. The magistrate presiding over the case cited the Kearn’s case and, in fining Omodei, spent the conviction so that no conviction has been recorded against him today. It is clear to anyone who has any passing knowledge of criminal law in WA that Omodei had the book thrown at him in stark contrast to the Kearn’s matter in circumstances where both incidents are comparable.

So it was that more than 12 months ago now, on Wednesday 25 May, the then leader of the state opposition in Western Australia, Matt Birney, was being followed home from parliament by police. He was subsequently stopped and given a breathalyser. His reading was below the legal limit, he was found to be lawfully driving his car and he was never charged with any offence.

Notwithstanding this, the police minister announced on a radio talkback program shortly thereafter that the reading had been 0.047. It is unclear whether this reading was on the preliminary breath test or the full breathalyser where there had been a calculated reading. But the main issue in this case is the role of the police commissioner in Western Australia. He had, as he disclosed, as a matter of practice been providing briefing notes to the minister, including those relating to ‘high profile’ people. So the commissioner was at that time a conduit for information on police operational matters involving high profile private citizens to the police minister—even those citizens who did not break the law. The minister, as was always very likely, knowing that minister, misused the information to seek political advantage.

During an interview on talkback radio, when questioned as to where the minister may have obtained her information as to the breathalyser reading, the police commissioner said of the disclosure:

… look, it could have come from someone else, it could have come from a number of sources and I intend to talk to the Minister and find out. If anything is untoward about this I am happy to report back on it.

About 90 minutes later the police commissioner issued a statement confirming and confessing it was he who had disclosed the reading to the minister. That was a police commissioner playing fast and loose with the public on radio as to the facts of a political matter. What sort of commissioner would stoop to involve police in the murky depths of state party politics? This undermines police integrity and brings the office of the police commissioner into disrepute.

So it was that Jonathan Daventry was charged and put before a district court jury in March of this year. The facts of the matter are quite straightforward. Mr Daventry was alleged to have shirt-fronted and frogmarched a 72-year-old man from an office, during which event the man fell and fractured his skull. One witness gave direct evidence in support of the prosecution case. Five witnesses gave direct evidence as to the event not having taken place as alleged by the prosecution and exonerating Mr Daventry. In such circumstances one might reasonably ask: why would the police proceed with this matter? The answer lies in the fact that the office concerned was that of the federal member for Curtin, a Liberal member. Indeed, the honourable member gave evidence for the defence at the trial. Needless to say, Jonathan Daventry’s jury returned a verdict of not guilty.

I pause to note that when the police interviewed the parliamentarian—now a Howard government cabinet minister—they sought to do so on the pretext of charging the man concerned, the 72-year-old, with disorderly conduct. In other words, the investigating officers commenced an interview with a witness misleading her to believe that the matter was relevant to disorderly conduct whilst having an ulterior motive of pursuing Mr Daventry—another surreptitious piece of policing unworthy of skilled professional police investigators. So we have an overwhelmingly strong defence case in a matter pursued with great and unexplained zeal. The weight of evidence was obviously and unequivocally supportive of Mr Daventry’s version, yet a jury trial was held. Again the question has to be asked: why so much zeal? The answer is that it is political.

More amazing and shocking police conduct came to light at the end of May this year, conduct which gives rise to alarm at the integrity and management capacity of senior police, particularly the commissioner. For about 18 months the police commissioner has appeared in person on free-to-air commercial television in Perth extolling the virtues of DNA testing at crime scenes and personally looking down the lens of the television camera and telling the viewers that burglars will be arrested and prosecuted with the assistance of the relatively new weapon of DNA forensic testing of evidence.

This campaign was and continues to be founded upon a lie—that is, that DNA testing was in fact being done in a timely manner or at all. A recent report of the Western Australian Auditor-General, Mr Des Pearson, has found that during the commissioner’s nightly television appearances there was a backlog of some 37,309 unanswered requests for DNA test results dating back to 2000. The audit report confirms that this backlog relates to burglary offences. WA unfortunately has a very high rate of burglary.

So we have what amounts to a fraud being perpetrated upon the public of Western Australia by this police commissioner, who told the public that an active and successful crime detection tool was being used to fight the crime of burglary while all the time knowing that the testing was not being done. The commissioner must now explain to Western Australians whether that is due to his ignorance of the facts, his or his senior officers’ managerial incompetence in the administration of this testing regime or him simply not having the money to pay for these backlogged tests. Such developments again bring the office of the police commissioner in Western Australia into disrepute.

But all of this is mere background and contextual, because the WA Police Service has now gone one better. In 2003 a union official, a Mr Joe McDonald, an infamous and notorious member of the CFMEU, was charged with making threats pursuant to section 338A(b) of the WA Criminal Code. The penalty for this offence is imprisonment for seven years. Mr McDonald has a significant track record of intimidation, violence and union thuggery on commercial construction sites in Western Australia. In 2001 he lost his permit to enter industrial sites which have federal coverage after being found to have threatened and intimidated employers. In April this year Mr McDonald was stripped of his right to enter sites under state coverage following another act of violent intimidation on a building site. He was fined $800 for criminal assault arising out of this incident.

The most recent charge, the charge pursuant to section 338A(b), flowed from an incident at a construction site in 2002 wherein the police were called and some months later a detective charged Mr McDonald with an indictable offence pursuant to the section I have mentioned. The matter was listed for hearing in the district court in Perth until a state crown prosecution lawyer reviewed the matter and remitted it to be heard before a stipendiary magistrate in the summary criminal jurisdiction. The matter was then scheduled to be heard on 14 September 2004 but, because Mr McDonald was facing other charges, including assault and relating to his intimidation of people at a building site, the matter was deferred to a hearing on 21 March this year, 2006.

At the trial, several prosecution witnesses gave evidence in support of the charge and, upon closing the prosecution case, the defendant, Mr McDonald, through his counsel called no evidence to rebut the prosecution case. The defendant did, however, make legal submissions upon the law only. The presiding magistrate retired to duly consider her verdict. Counsel for the defendant was heard in the courtroom to ask the prosecutor after the magistrate had left the courtroom: ‘Will you be asking for imprisonment? Do you want a jail sentence?’ The clear inference was that a conviction was likely.

The legal argument put forward by the defence was based upon a unique construction of industrial law and in stark contrast to the understanding of most experienced practitioners and the current state of the authorities and precedent cases in this area. It is also important to note that, in not calling any evidence, the defence does not appear to have established any basis to prove that Mr McDonald was an accredited official of the CFMEU or that the union was in fact registered. These are legal formalities which would appear essential to be established if the defence submission on the technical law was to have any possibility of success.

What next occurred is one of the most perplexing events in the annals of administration of justice in Western Australia. It subsequently transpired that police prosecutors, of their own motion and without the benefit of any other legal advice, made an assessment of the defence submission and concluded that the prosecution could not succeed. Having unilaterally made a determination of the case, an application was made to another magistrate—it so happened to be the Chief Stipendiary Magistrate—to withdraw the charges. This was done with not a word to those involved in the case—namely, the witnesses or the people who had been threatened—and, of course, no word or advice to the media, which had shown much interest in the case. The charges were not withdrawn; they were ‘dismissed’, which precludes Mr McDonald ever being charged again with this offence upon the double jeopardy principle. The magistrate who presided at the trial was apparently soon to deliver her decision.

So what is so odd about this matter? Let me spell it out: an experienced police officer laid a serious charge after considerable consideration of the factual circumstances of the matter; an experienced state prosecutor reviewed the matter and sent it for trial in the Magistrates Court; witnesses gave detailed evidence in support of the charge; the defence made legal submissions only that were relevant to technical interpretations of industrial law; the magistrate was considering her verdict as the case had closed; the police gratuitously made an evaluation of the case and unilaterally resolved to pull it out in circumstances where no legal advice was taken on the matter and the dismissal of the charge was done as discreetly as possible by another magistrate; and the magistrate considering her verdict was pre-empted and the defendant cannot be charged again on the matter.

As a legal practitioner of some 25 years standing, I have no hesitation in saying that such conduct is unheard of. To intervene in a completed prosecution in pre-emption of the consideration of the presiding judicial officer is in breach of every proper principle and practice surrounding the administration of justice and our system of courts. If the police officers concerned were correct in their view of the failings of their case, the least they could have done was wait for the magistrate to find that the case had no possibility of success or for an appeal court judge to agree with them. These policemen have taken it upon themselves to be the judge and the jury. There is only one word to describe the police conduct in this matter: corrupt. I do not use this word lightly or without great consideration, but I maintain my assessment, given their conduct.