Monday, June 18, 2012

Not even the state's top cop was immune from culture of surveillance

Neil Mercer | SMH | June 17, 2012

On the eve of the Sydney Olympics undercover police were watching many senior officers, including Peter Ryan.

It was Christmas, 1999, and NSW police commissioner Peter Ryan was winding down after a hectic year. With his then wife, Adrienne, he was enjoying a few drinks after work at the Marriott Hotel, a short walk from police headquarters in College Street in the city.

Unbeknown to Ryan, he and his wife were under surveillance. Not by the dark forces of organised crime, but one of his own officers, an undercover cop known as ''Joe'' who was working for Special Crime and Internal Affairs, commonly known as SCIA.

SCIA's job? To root out corruption. It was supposed to operate to the highest ethical standards.

The surveillance of the state's top cop had been ordered by the then head of SCIA, assistant commissioner Mal Brammer, who believed the Ryans, under the influence of alcohol, might be loose-lipped about confidential police affairs.

Any way you look at it, it was extraordinary. But it was not the first time SCIA, under Brammer, had been involved in highly questionable surveillance of some of the force's most senior ranks.

Earlier that year, Joe and his partner ''Jessie'' - another undercover, or ''UC'' as they are known in the trade - had spent weeks trying to gather dirt on assistant commissioner Clive Small, then head of crime agencies and in charge of squads such as homicide, armed robbery, sexual assault and fraud.

The jailed murderer and notorious crime figure Neddy Smith had alleged Small had formed an improper relationship with a Sydney organised crime figure and well-known drug trafficker, Michael Hurley, and that they were meeting at the Woolwich Pier Hotel in Hunters Hill.

The surveillance ran from January 22 until March 12, 1999.

It turned up three parts of, well, nothing, because neither Small nor Hurley ever appeared at the pub. As Joe and Jessie later remarked, at least the food was good. Small was never even interviewed about the allegation.

Just weeks before they started watching Small, Jessie had been tasked by her superior in SCIA with watching another officer, Detective Inspector Deborah Wallace, who at that time was working for SCIA. That operation ran from May 5 to December16, 1998, and involved Jessie joining the same gym as Inspector Wallace.

Like the surveillance of the Ryans and Small, it turned up nothing. There was simply no evidence that any of them had done anything improper.

As Jessie later remarked: ''It was ridiculous. She [Wallace] was just there to do aerobics.'' Despite it lasting seven months, senior SCIA officers later said they could not recall Jessie being told to watch Wallace.

We know of these three SCIA surveillance operations, from May 1998 to early 2000, because the two undercover police involved, Joe and Jessie, later told their story to Clive Small, the man they had been told was meeting Hurley at the Woolwich Pier.

Small, now retired, and his co-author Tom Gilling revealed the extraordinary saga in their book Betrayed, published in 2010.

Remarkably, the assertion that an ''out of control'' SCIA under Brammer had put its own commissioner, among others, under surveillance did not garner any publicity in the media.

Nor was there any reaction from NSW Police headquarters or the Police Integrity Commission, which is supposed to take a keen interest in allegations of wrongdoing and improper conduct.

But all these years later, those operations have become relevant because of an aspect of another controversial SCIA investigation that did hit the headlines.

It was called Operation Florida and it started in early 1999.

At its centre was a corrupt NSW police officer, code-named M5, who ''rolled over'' and, wearing a listening device, secretly recorded dozens of his colleagues to obtain evidence of corruption.

At first it was a covert operation run by police from SCIA and the secretive NSW Crime Commission.

By July 2000, Florida had gathered a large amount of evidence of serious police corruption and the Police Integrity Commission joined the still-secret investigation.

As the then boss of the PIC, Terry Griffin, told a parliamentary committee, ''Operation Florida … is a joint effort between the [Police Integrity] Commission, the NSW Police and the [NSW] Crime Commission.''

For M5 to legally record the conversations, approval for him to wear a listening device had to be sought from the NSW Supreme Court. On September14, 2000, Justice Virginia Bell approved NSW Crime Commission listening device warrant number 266 of 2000.

Nothing unusual about that, you might think. But in fact the warrant was highly unusual in that it gave approval for M5 to record conversations with no fewer than 114 serving and former police and two civilians, including a journalist.

Some of those named, about 15 or so, were undoubtedly corrupt. But many of those named on the warrant were officers with unblemished records. Among them were Nick Kaldas, now a deputy commissioner, and Bob Inkster, a distinguished detective now retired. Many others are still serving in some of the most senior positions in the NSW Police.

At the time, the names on the warrant were obviously unknown except to a handful of people within SCIA and the crime commission.

But clearly, someone with inside knowledge was troubled by what had happened, because in April 2002 the warrant leaked to the media and all hell broke loose. Many named on the warrant were senior investigators. They were furious.

A copy of the warrant found its way to journalist Steve Barrett, a crime reporter with some of the best police contacts in the country.

Barrett recalled last week how he read through the names with growing amazement, saying to himself, ''Know that one, know that one,'' until he came to a name he knew very well - his own. He complained in writing the next day to the NSW attorney-general.

Such was the outcry that Ryan, then in his last days as commissioner, went on Channel Nine's 60 Minutes.

''From what I can gather, the officer [M5] was going to a function at which a lot of people would be present and therefore he may be talking to a hundred people, all of whom had to be named in the warrant.''

Reporter: ''I see, so it wasn't aninvestigation of 110-odd individuals?''

Ryan: ''Oh no. No. If I was at that function my name would have probably been on the warrant, too.''

From the outset, nobody believed it. ''Absolute bullshit,'' was the reaction of more than one senior detective, and they had good cause to be sceptical. The date on the warrant was September 14, 2000.

September15 was the opening ceremony of the Sydney Olympics. Police leave had been cancelled. It was all hands on deck.

Further proof that the ''social function'' explanation didn't hold water emerged when another, almost identical warrant with 113 names was leaked. It was dated April 4, 2000.

Even by NSW Police standards, a social function lasting more than five months is one almighty piss-up.

According to some of those on the warrant, Ryan was misled. So who was behind the warrant?

Tim Sage, then assistant commissioner of the PIC, distanced his organisation. He told a parliamentary committee in May 2002, ''They are not integrity commission warrants.''

Asked who applied for them, he said: ''The officers of Special Crime and Internal Affairs attached to the NSW Crime Commission.''

In other words, officers under the command of Brammer, who was also in charge when the undercover cops Joe and Jessie undertook the dubious surveillance of Ryan, Small and Wallace.

While Brammer and others involved have retired, one officer has since risen in the ranks. Catherine Burn, an acting inspector in SCIA at the time the warrants were obtained, is now a deputy commissioner - along with Kaldas, whose name appeared on the warrant.

Brammer has vigorously rejected any allegation of wrongdoing. In relation to what became known as Operation Florida, he says there was oversight of him and his officers by Peter Ryan and the then head of the crime commission, Phil Bradley.

He also says the current Commissioner, Andrew Scipione, was intimately involved.

''I would also suggest on reasonable grounds Commissioner Scipione in his role as chief of staff to Commissioner Ryan and later as the Commander Special Crime and Internal Affairs had informed knowledge and more than a passing interest in the investigation and its various activities, more particularly from December 2000 when he was nominated by Commissioner Ryan as the next Commander Special Crime and Internal Affairs which he took up and exercised in April 2001,'' Brammer says.

Brammer says PIC officers also had ''day-to-day interaction with the investigators at the Crime Commission and access to information. This included examination of listening device and telephone interception documentation to ensure the product could be legally used by them.''

In regard to the controversial listening device warrants, Brammer says that ''at no time was I involved in directing, preparing or approving the affidavit or any other affidavits prepared under the auspices of the NSW Crime Commission.''

''I might also add I am not aware of any evidence or tangible allegations of impropriety on the part of any of the NSW Police officers involved in the investigation, including Deputy Commissioner Burn.''

He says any suggestion he acted improperly in regards to the issue and execution of the listening device warrant was ''false and mischievous.''

Ms Burn declined to comment, saying through a spokesman on Friday that it would be ''inappropriate'' while the Inspector of the PIC, David Levine, QC, was investigating the matter. It's not the first investigation of the controversial warrants. In April 2002, the then inspector of the PIC, Merv Finlay, QC, found the warrants were justifiably sought and complied with legislation.

But such was the outcry by so many senior and experienced police that in July 2003, Strike Force Emblems was formed to look at seven complaints about the warrant and SCIA from the Police Association. (The final Strike Force Emblems report has never been made public. Levine has been asked by the state government to see whether it should be.)

What we do know is that in a letter to the association in May 2004, Emblems investigator Detective Inspector Mark Galletta said among the complaints investigated were the:

❏ ''Impropriety regarding listening device warrant numbers 95 of 2000 dated 4 April, 2000, and number 266 … dated 14 September, 2000.

❏ ''Failure by NSW Police to process and deal with complaints relating to then Commanders, Assistant Commissioner Brammer, Detective Superintendent [John] Dolan and Superintendent [Catherine] Burn.

❏ ''Unacceptable operational risk taking - strategies concerning the deployment and management of M5.

❏''Breakdown of relations between the [crime commission] and the NSW Police.''

Strike Force Emblems was an experienced team. Of its eight staff, five were detective inspectors.

A total of 35 of those named on the warrants formally complained to Emblems and were interviewed.

While those on the warrant vented their fury, those NSW police from SCIA involved in obtaining the Florida warrant remained tight-lipped. Attached to the secretive and largely unaccountable crime commission, they invoked the commission's secrecy provisions. Nor could investigators get access to the sworn affidavits that allegedly justified the 114 names.

Inspector Galletta's letter outlined the problem. ''After protracted negotiations between the NSW Police and the NSW Crime Commission, including representations made by Ian Temby, QC, the subject affidavit and associated material has not been obtained.

''This restriction, coupled with NSW Crime Commission legislative requirements (S.29 secrecy provisions) saw investigators unable to interview police that were part of the NSWCC Florida reference.

''This included the deponents of the subject warrant and/or involved officers in the investigation.''

In other words, the NSW police from SCIA did not have to answer any questions from their colleagues in Strike Force Emblems. This appears to fly in the face of section 27 of the NSW Crime Commission Act which states that NSW police task forces attached to the commission are ''subject to the control and direction of the Commissioner of Police''.

Nevertheless, Galletta said: ''Investigators objectively concluded that there were persons whose inclusion on the subject warrants may not have been justified …''

The invoking of the secrecy provisions further enraged many of the detectives named in the warrants who saw it as further evidence of double standards: if they did something questionable they were hauled over the coals. If SCIA did the same thing, it was allowed to ''go through to the 'keeper'.''

One of the 35 who formally complained, a former detective posed this question in his complaint to Emblems: ''Have the NSW Police, NSW Crime Commission and Police Integrity Commission for their organisational, personal and collective interests knowingly and corruptly withheld their knowledge of misconduct, unethical and unlawful actions by members of SCIA?''

He also referred to yet another SCIA operation that in mid-1998 targeted alleged police corruption in the NSW town of Young.

It was called Operation Banks.

The Sydney Morning Herald reported in March 2001 that it was sparked by suspicions that some local police were involved in drug dealing with members of the Rebels outlaw motorcycle gang.

Initially hailed as a triumph, it backfired badly. The Heraldreported in July 2001 that criminal charges against one man for supplying a kilogram of cannabis were dropped after ''police legal advisers revealed that Internal Affairs officers lied to Supreme Court judges to get search warrants and permission to install listening devices''.

A police officer suspended for 26 months and reinstated complained. An investigation into that complaint found affidavits supplied to Justice Hubert Bell and Justice Graeme Barr to obtain search warrants and listening devices were flawed. ''A large amount of exculpatory evidence from the source documents was omitted from the affidavits,'' the investigation found. ''This resulted in affidavits which were not balanced, and therefore misleading. In one particular area, the affidavits were false.''

In their book Betrayed, Small and Gilling reveal adverse findings were made against seven officers from SCIA involved in Banks. The NSW Director of Public Prosecutions decided not to proceed with criminal charges of perverting the course of justice against some of them.

Eight internal police investigations were launched into complaints about the operations and management of SCIA under Brammer.

As Betrayed revealed, one of them found Brammer had a ''manifest conflict of interest'' in one operation and that he allegedly perverted the course of justice by improperly arranging an internal investigation against an officer. Another quite separate inquiry into the reform process found Brammer ''was affected by bias'' and that he had shown ''a lack of fairness''.

It appears there has been scant interest from the PIC in looking at SCIA's behaviour from a ''big picture'' point of view.

Many former and serving police believe it was compromised because it worked hand in glove with Brammer and SCIA for years in Operation Florida. (The PIC's Florida inquiry, with M5 its star witness, sat in public for 78 days, heard from 99 witnesses, 32 of whom were serving officers. Fourteen of those left the police, 11 as a result of Florida. It took evidence of wrongdoing that dated from the 1980s to 2001.)

The former officer who wrote to Emblems said: ''Prima facie, there have been numerous NSW Police investigations and inquiries into the allegations of systematic misconduct, unethical and criminal behaviour on behalf of Brammer during his command of SCIA.

''It is beyond belief that these historic and current investigations are unintentionally being isolated, treated as independent, separate or coincidental of each other.''

Relations between the police and the PIC are at a low ebb. The PIC's previous inspector, Peter Moss, QC, repeatedly criticised its investigations as being grossly unfair and biased. In some cases, evidence exculpatory to the officer being investigated had been ignored.

Levine is reviewing the recommendations of Strike Force Emblems but how far his inquiries might go is unclear.

The Police Association recently passed a motion of no confidence in the PIC and called for the Emblems report to be released.

Twelve years after the listening device warrant was obtained, old closet doors are rattling.

At least 100 cops are waiting and watching to see how far Levine is able to open them.

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