Document

Further to the Office of the Ombudsman being an expensive farce.

2006 May 23
Robert Lee

I was interested to read about persons other than myself who have had good reasons to accuse the Ombudsman of committing acts of conduct that are in breach of the Code of Conduct and Ethics set down for the Ombudsman and his Office to comply with.

Then there is the conduct of certain Police officers who are also supposed to comply with their Code of Conduct and Ethics and fail to do so, and lets not forget the Code of Conduct and Ethics the Member of the NSW parliament I have found they do not comply with.

Include also the Charter of Victim's rights, which like the Codes of Conduct and Ethics all public authorities ignore.

The one person who I have found has come very close to the mark is Jo Hewitt reporting what she has found under the heading, "Ombudsman's Office another expensive farce".

I have decided that this is where I can support Jo Hewitt's findings by publishing my own findings over the past 15 years which I have been fighting the corruption I am a victim of and I believe will answer a lot of questions about the Office of the Ombudsman and the role it does not publish, it plays to ensure evidence supporting complaints about police will never support a prosecution.

I will let whoever reads what I publish to judge for themselves, if the members of the parliament they have voted in, by ignoring a very serious issue regarding what I allege to be is a "Bad Law", which I have raised with every member. By ignoring this matter are the members acting in the public interest, or the financial interest of the NSW Police Service?

Part One.

Background.

Hindering an investigation comes under Section 315 of the NSW Crimes Act 1900. (1) A person who does anything in anyway to hinder (a) the investigation of a serious indictable offence committed by another person, or (b) the discovery of evidence concerning a serious indictable offence committed by another person, is liable to imprisonment for seven years.

It is based upon this part of the crimes act in March 1992 I made complaints to the Ombudsman concerning the conduct of the two officers whose actions to not discover evidence, which proved my business partner had committed criminal offences of forgery and theft. I also alleged their inaction under s. 319 perverted the course of justice.

Ten days later I received in the mail a letter in which the Office of the Ombudsman informed me of the fact that my complaints had been assessed as warranting investigation, and to this letter was attached two-pages of information which explained to a complainant, and I quote:

This statement briefly sets out the procedures that "will" be followed upon receipt of your complaint against a member of the Police Force and your rights under the Police Regulation (Allegations of Misconduct) Act 1978, as amended.

Under the heading "Investigations and Reports" I was informed a police officer would investigate my complaints, and commence by interviewing me the officers concerned and any witnesses. Under "Review by Ombudsman" I was informed the Ombudsman could order the Police a further investigation and review of a complaint. Or under "Re-investigation by the Ombudsman", make a member of his staff an Officer of the Ombudsman and the Ombudsman direct a further investigation.

I later discovered that the PRAM Act 1978 did not provide the Ombudsman with any authority to order the police to conduct a further investigation and review. Nor did the PRAM Act 1978 provide the Ombudsman with any authority to reinvestigate a complaint, or provide any legislation to allow the Ombudsman to make a member of his staff an officer of the Ombudsman. All of this information the 1978 Act did not support was truthful.

Did the Officer who interviewed me in May 1992 interview the officers concerned? Yes he did in September 1992 5 months after taking my statement. Did he during that interview raise any facts concerning the complaints I made? No, and the record of interview confirms the Officer did not. Did the Officer interview the witnesses there was to complaints made? No he did not.

In March 1993 I received a copy of all the documents upon which the police final report had been prepared and reported finding no evidence to sustain the allegations made. A review of the conduct of the officers investigation was carried out by a member of the Ombudsman's staff resulting in a provisional statement dated the 11th March 1993 being prepared for the Ombudsman, and in this statement the Ombudsman was informed that no evidence was found to support the officer had investigated one single complaint and had not interviewed any witnesses.

Under the heading "Further Investigation", subsection (1) of s. 25 of the PRAM Act 1978 one states:

Where after receiving the information referred to in section 24, the Ombudsman is not satisfied that the complaint to which the complaint relates was properly investigated, he shall report to the Commissioner accordingly, specifying what are, in his opinion, the deficiencies in the investigation.

Subsection (2) of s. 25 states:

Upon receipt of a report under subsection (1), the Commissioner shall cause a further investigation to be conducted in order to remedy the deficiencies referred to in the report.

Did the Commissioner comply with the instructions in subsection two? No the Commissioner did not, and when you compare the conduct of the Commissioner to not comply with subsection (2) of s. 25, with the information No. 2 of s. 26 (1a) of the Ombudsman Act contains:

Any person who fails to comply with obligations under an act or regulation is determined to have acted "Contrary to Law".

A report prepared by the Office of the Ombudsman contained information confirming the Commissioner did not comply with this part of the Act and instead the police service solicitor prepared a submission on behalf of both officers, which the Ombudsman received on the 26th May 1993. On the 27th May contact was made with the executive officer of Nth Region and he stated the police service disagreed with the Ombudsman's findings.

Did the Ombudsman in the interests of the complainant draw the attention of the executive officer to the provisions of subsection (2) of s. 25, and to not conduct a further investigation would be an act "Contrary to Law"? No the Ombudsman did not. Did the Ombudsman draw the attention of the Executive Officer the fact that the PRAM Act did not under the circumstances and in lieu of a further investigation legally provide any provisions to allow a submission to be prepared? No the Ombudsman did not.

These questions, which I have asked this Office to, please answer it has ignored, which init self is a breach of the Code of Conduct and Ethics laid down for this Office to comply with. But as there is no one who will investigate such complaints, this Office appears to place itself above its wn Code.

At the time the only information I had to go by is the information two-pages contained and this office provided me with in March 1992. I did not discover the information was false until I discovered other information that led me to look more closely at the legislation under which complaints about police were to be investigated.

The next contact this Office made it did when it sent me a copy of a letter the Ombudsman had addressed to the Police Service Solicitor. The date of this letter was the 15th July 1993 and the information it contained advised both myself and the Police Service Solicitor that the Ombudsman had directed two members of his staff to investigate one of the complaints there was a witness to, which the officer carrying out his investigation did not interview.

The results of which the Ombudsman in a report he prepared for the Minister for Police stated:

On the 15th July 1993 this complaint was made the subject of investigation pursuant to Section 16 of the Ombudsman Act 1974.

In the letter dated the 15th July 1993 the Ombudsman mentions the statement given by this witness to the two members of the Ombudsman staff, and including other evidence the Ombudsman had, informed both myself and the Police the evidence was sufficient enough for the Ombudsman to determine that the complaint was sustained, which later in a letter dated the 9th December 1993 the Ombudsman officially confirmed.

On the 11th July 1994 the Assist Ombudsman wrote to tell me that the Ombudsman had received a submission from the police, in which the Police Service Solicitor advised the Ombudsman the service would not accept the Ombudsman's sustained findings.

What the Assist Ombudsman in his 11th July 1994 letter did not tell me is the date the Ombudsman received this submission and I later discovered in a report the Ombudsman had received this submission on the 26th August 1993, nearly four months before the Ombudsman wrote to me on the 9th December 1993, and from the 26th August 1993 to the 11th July 1994 the Ombudsman had withheld this information from me.

I was informed there were options available to the Ombudsman to resolve the disagreement. The Ombudsman could prepare a report for the parliament, or the Ombudsman could send the information upon which the Ombudsman had based his sustained findings to the Police tribunal and have the Tribunal make a final determination.

Instead I was told, as a result of this Office not having any financial resources it could spare to take further action, a discretionary decision had been made to take no further action and advised me that the complaints file would now be closed.

To post to the Police Tribunal the information/evidence the Ombudsman had based his sustained findings on. In 1994 would not have cost this office any more than $2.00. I later found out from financial information this Office provided a friend of mine with, the Office confirmed to my friend that on the 1st July 1994 it had received re-current funding of 4.28 million dollars, from which nine operating days later I was told by the Assist Ombudsman that it did not have any financial resources to spare, with which it could post documents to the Police tribunal.

So on the 11th July 1994, when this office told me it could not spare any of its scarce financial resources to post documents to the police Tribunal. Was this information truthful? No I believe it was not.

Did this Office lie to me concerning the financial status of this Office? Yes I believe the information proves on the 11th July 1994, I was misled and deceived to believe this Office had no money with which to take further action.

Compare this to information this Office after 1998 published, states: We oversee police investigation of complaints about police, which includes direct investigation of such conduct, where this is considered appropriate and the "necessary funds are available".

It appears all this Office has to say to kill any investigation of police misconduct is to claim they have no available funds.

In 1994 this Office had more than enough available funds so there had to be another reason, for in view of the evidence the Ombudsman had, why did the Assist Ombudsman pull the plug?

What gave me the first hint is an investigation 4 Corners conducted and the results were put to air in October 2000 under the title

"Burned".

The part that interested me is the information 4 Corners discovered confirmed the police officer they were investigating, a file of complaints made against this officer was over 4000 pages thick containing and 4 Corners found despite the evidence there was supporting complaints mounting up against this Officer, one by one the Ombudsman dismissed every complaint.

It was not until December 2003 I discovered information Ms Moss published under the title "Functions and Jurisdiction of the Ombudsman", and under the part, "the Ombudsman's functions Ms Moss explained:

The Ombudsman's jurisdiction, however, is limited by the exclusion of the conduct of public authorities as specified in Schedule 1 of the Act.

This was the first time I learned that the Ombudsman act did not provide the Ombudsman with the authority to investigate complaints made against all public authorities in NSW, and so using the Internet, I downloaded a copy of Schedule 1 and I found the schedule to be a list of all the public authorities whose conduct the parliament had excluded from investigation under the Ombudsman Act 1974, and the legislation number 13 contained confirmed that the conduct of a police officer is excluded from investigation under the Ombudsman act 1974.

I immediately thought about the advice the Ombudsman sent me dated the 15th July 1993 and the affect this legislation had on the investigation the Ombudsman under the Ombudsman Act 1974 had two members of his staff re-investigate for the Ombudsman the conduct of complaints I had made against two police officers.

It at the time this legislation was in force. This meant the Ombudsman did not have any legal authority to carry out the investigation into the conduct of the two officers, and this legislation confirms the investigation was illegal. What other affect this legislation had, was to make the evidence in the statement the witness gave inadmissible, and unable to support the Ombudsman's sustained findings.

I then recalled the submission the Ombudsman received and at the time neither the police nor the Ombudsman would agree to my request to be granted a copy. I was now certain in that submission the police drew the Ombudsman's attention to s. 13 of the Schedule, and that this legislation his own act contained, confirmed the conduct of a police officer was excluded from investigation under the Ombudsman Act, and the Ombudsman had no choice but to cancel the investigation and dismiss the complaints made against the officers concerned.

I realized it was not as a result of a lack of finances the plug was pulled it was because the Ombudsman's investigation of my complaints was illegal.

To confirm I was not wrong, my search of the Ombudsman Act found in 1974 with the very first schedule that had been drafted, number 13 of the list of public authorities contained the legislation which excluded the conduct of a police officer from investigation under the Ombudsman Act 1974.

Because the Ombudsman Act did not provide the Ombudsman with the authority to investigate complaints made about police. To provide the Ombudsman with the authority to investigate complaints made against police in 1978 the parliament amended the Police Regulation Act 1899 and inserted into it the provisions of the Allegations of Misconduct Act.

The notes attached to this act stated:

An act to confer and impose upon the Ombudsman certain powers, authorities, duties and functions with respect to the investigation of, and adjudication upon, allegations of misconduct made against members of the Police force.

In 1983 as a result of the Ombudsman recording unable to determine complaints made against police, the parliament decided to amend the part of the Police Regulation Act (allegations of Misconduct Act) 1978, and provide the Ombudsman with an additional function to perform. One, which the Ombudsman could use to reinvestigate a complaint the police, had already investigated.

The Minister for Police advised the parliament (page 2946 1983 NSW Parliamentary Debates): It is intended by providing the Ombudsman with the opportunity to carry out his own investigations, very few complaints will fall within the "unable to determine" category.

Accordingly one would expect the Police Regulation (Allegations of Misconduct) Act 1978 to provide the Ombudsman with the provisions to reinvestigate complaints about police, but as I found out, not so.

Act No 191 the act to amend the PRAM Act 1978 in 1983 stated:

After Section 25, insert-

Investigation under the Ombudsman Act 1974.

25A (1) Where, after considering all the material and information provided for the Ombudsman under this part, the Ombudsman is not satisfied that a complaint has not been properly investigated and is not satisfied the complaint has been sustained. The Ombudsman may-

(a) make the conduct to which the complaint relates the subject of investigation under the Ombudsman Act 1974.

If the parliament wanted to make a change and have the Ombudsman Act provide the Ombudsman with such authority the parliament first needed to use s. 14 of the Ombudsman Act (Amendment to Schedule) to remove from the Schedule, the legislation that had since 1974 excluded the conduct of a police officer from investigation under the Ombudsman Act 1974.

But this action was never taken and as s. 156 of the Police Service Act 1990 currently confirms.

Investigation of complaint under the Ombudsman Act 1974.

(1) If of the opinion it is in the public interest to do so, the Ombudsman may make a complaint, together with any investigation of the complaint and any related issues, the subject of investigation under the Ombudsman Act 1974.

Which, the legislation section 13 of Schedule 1 currently contains, disqualifies the Ombudsman from investigating under the Ombudsman Act 1974, the conduct of a complaint made against a member of the NSW Police Force.

For the past 23 years, s.13 of the Schedule and Schedule 1 of the Ombudsman Act, the act which governs the operation of the Ombudsman has never supported the legislation a police act has contained, "suggests" otherwise. I have watched enough Law & Order programs to learn how a technicality in the law is sufficiently enough to make evidence inadmissible and in the case of complaints made against NSW police no officer will be charged.

I allege based on this information, plus the fact when the Minister for Police will take no action to amend the legislation, by repealing the name of the Ombudsman Act and re-enacting s. 156 showing the Police service Act provides the Ombudsman with the power to investigate complaints about police. Then there must be a reason why the Minister ignores what is a very obvious contradiction in the law.

The theory I have to explain why nothing is being done; is related to what would happen if evidence could not be made in admissible and an officer could be prosecuted, has a lot to do with a claim for compensation against the police the victim could make for suffering and any financial losses the victim sustained.

My financial losses which the two officers in 1991-2 were responsible were legally quantified in 1994 at $490.000.00, which is an incentive to ensure the evidence I have which will support prosecutions the police do not want discovered.

Four investigations I had been told by letter had been completed and no further action will be taken and not one document did I receive to support this advice. Led me to apply to the NSW Police FOI Unit fromthe information I did not receive would prove the police had told me the truth.

In reply I was told: Notwithstanding a search of records has been conducted which failed to locate or identify any documents in relation to segment 1, 2 and 4 of your application.

Further, an examination of the documents you provided in support of the application gives rise to the question as to whether any such documents existed.

No documents obviously there were no investigations. The documents this unit supplied in response to the 3rd segment of my application, provided me with evidence of another investigation, which if the Officer had acted upon the advice he received he would have had to prosecute my partner six years after the allegations I made, but to protect other officers who did not investigate the same evidence this Officer chose to do the same and end his investigation before it was completed.

This was in 1996, and I did not find this out until 1999 when the FOI Unit sent me the information, and the advice the Officer did not act upon, I did and in essence completed the police investigation at a further cost of $3000.00 and presenting this evidence to the Police in November 1999, the complaints I made and the evidence supported the police deliberately ignored and are still doing so.

I gave the Ombudsman Mr. Barbour the chance to act honestly and his response was to inform me:

The fresh material you refer to on this occasion concerns the actions of Detective S, who, you indicate in 1996 failed to follow advice from legal services to the effect that he should have referred the matter back to the Document Examination Section. In my view this does not raise any issue warranting any further action by the Police service or this Office.

It is interesting to note a firm of criminal law specialists have from the same information determined the same evidence Mr. Barbour reviewed will support the Officer concerned being charged under s. 315 & 319 of the Crimes Act 1900. Does this fact suggest the Ombudsman is incompetent or corrupt?

To answer this question, one has to consider the fact that every Ombudsman from 1983 to the present day, all have been aware of the fact that the legislation s. 13 of the Schedule division of the Ombudsman Act contains will make inadmissible any evidence the Ombudsman discovers during an investigation the Ombudsman conducts under police legislation that indicates the Ombudsman can do so under the Ombudsman Act 1974.

Section 35B of the Ombudsman Act 1974. Application to Supreme Court.

(1) Where any question arises as to the jurisdiction of the Ombudsman to conduct an investigation or proposed investigation (whether under this or any other Act), the Ombudsman, or any interested party may apply to the Supreme Court for a determination of that question. (2) On an application made under subsection (1) the Supreme Court may make such an order.

The question this gives rise to, is why has not one Ombudsman from 1983 to the present day applied under s. 35B of the Ombudsman Act, to have the Supreme Court determine if the Ombudsman has the jurisdiction under a police Act to investigate the conduct of a police officer under the Ombudsman act, a part of which since 1974 has excluded the conduct of a police officer from investigation.

It is obvious after 23 years to have police legislation contradict a part of the Ombudsman Act was not the result of a mistake having been made in 1983. As an interested party I applied to the Legal Aid Commission to apply to the Supreme Court and have the question of the jurisdiction of the Ombudsman determined by this court, and my application was dismissed on the grounds that I had no prospects of success.

Here is another public authority that has acted to have no change to the legislation made. It is obvious nothing over the past 23 years has changed and his completes part one.

Part two will provide a further insight into the role the parliament the Ombudsman and the police have played to ensure the results of investigations into complaints about police do not support a prosecution.

Robert Lee