DavidJCapornCorruptionP2



Mallard sues for millions in damages

https://www.smh.com.au/national/mallard-sues-for-millions-in-damages-20081118-69s4.html




The man wrongfully convicted of the 1994 murder of Perth jeweller Pamela Lawrence is suing eight police officers, the director of public prosecutions and others accused of bungling the investigation.

Andrew Mallard, who spent 12 years in jail for the murder before the High Court quashed his conviction, has lodged a writ in the WA Supreme Court for damages against 14 individuals and the state of Western Australia.

A recent inquiry by retired NSW judge John Dunford QC found two assistant police commissioners, Mal Shervill and David Caporn, then detective sergeants, caused witnesses to change their statements.

They either used persistent and repeated questioning or deliberately raised doubts in witnesses minds, Mr Dunford said.

Mr Shervill was also found to have changed police records.

Deputy DPP Ken Bates engaged in misconduct and failed to question forensic pathologist Dr Clive Cooke about whether Mrs Lawrence's injuries were consistent with the use of a wrench, Mr Dunford said.

Police claimed Mr Mallard had identified the wrench as the murder weapon during interviews.

Also listed in the writ are the police commissioner, the police minister, the chief forensic pathologist, a chemist and a psychiatrist.

Mr Mallard is seeking damages, aggravated damages, exemplary or punitive damages and interest from most of those named in the action, including current DPP Robert Cock QC.

Mr Cock is being sued for negligence, breach of statutory duty, misfeasance in public office and malicious prosecution.

An undercover police officer and another investigator are also being named in the writ for encouraging Mr Mallard to use cannabis at a time when he was "psychologically vulnerable".

West Australian police union president Mike Dean says lawyers will have a field day.

"Matters of compensation are essentially with the government," Mr Dean said.

"We're looking at a four to five year civil process which will cost both sides many millions of dollars.

"I think the theatre has overtaken the facts in this case... and they seem to want someone's head.

"If you read the (Dunford) report closely, you'll see that there are no corruption issues. There were 52 separate allegations of corruption, originally, and none of them (were carried)."

Mr Mallard was released from jail in 2006 and is now living interstate.

'Cruel blow' for man who lost 12 years of freedom

https://www.smh.com.au/national/cruel-blow-for-man-who-lost-12-years-of-freedom-20090505-atww.html


Andrew Mallard can't put a price on the 12 years of freedom he lost for a murder he did not commit.

But he knows the $270,800 he's been offered for every year he spent behind bars doesn't come close.

At less than half of what he'd sought for his prison ordeal, which allegedly included bashings and being sent to a psychiatric hospital, it's not even in the ball park.

Mr Mallard says he's "extremely disappointed" with an offer on Tuesday of $3.25 million for his wrongful conviction for the 1994 murder of Perth jeweller Pamela Lawrence.

Despite it being a record ex gratia payment for Western Australia, he's seeking further legal advice over what opposition legal affairs spokesman John Quigley called a cruel blow for an innocent man.

Mr Mallard served 12 years of a 20-year jail sentence before his conviction was quashed by the High Court in 2005. He walked free from jail in 2006.

The police special crime squad conducted a cold case review of Mrs Lawrence's murder in 2006 which finally eliminated Mr Mallard as a suspect.

The review found there was sufficient evidence to implicate convicted killer Simon Rochford in Mrs Lawrence's murder.

Rochford, whose palm print was found during the review, committed suicide in jail after a news organisation reported he'd been identified as a suspect.

The murder investigation and Mr Mallard's wrongful conviction were the subject of a Corruption and Crime Commission (CCC) inquiry into whether police and other officials had engaged in misconduct.

Two assistant police commissioners, Mal Shervill and David Caporn, were forced to step down from their jobs in the wake of the CCC's findings.

Mr Mallard had demanded $7.5 million as compensation on advice from his lawyers, but on Tuesday West Australian Attorney-General Christian Porter said the settlement would be just $3.25 million.

Mr Quigley - a long-time champion for Mr Mallard - said on the weekend that Mr Mallard had been advised to accept nothing less than a $7.5 million ex gratia payment.

He said that if the government failed to match that amount, Mr Mallard would simply pursue a Supreme Court writ he'd already lodged against 17 defendants, including seven police officers and the Director of Public Prosecutions.

"So he's looking at, is this figure enough to settle this Supreme Court action and it's not being suggested by the government that it is or that it's fair compensation in that regard," Mr Quigley said on Tuesday.

A "disappointed" Mr Mallard was consulting his lawyers after the announcement of the payment, Mr Quigley said.

Mr Porter said the figure was based on the best legal advice available to the government.

"There's no doubting that what he went through was quite terrible and based on the best legal advice and after the extensive deliberations of cabinet without any strings attached ... this is the quantum which has been determined," Mr Porter told reporters.

A spokesman for Mr Porter later said the money was a gift, not compensation, and Mr Mallard would have to continue his fight if he also wanted compensation.

WA Police Union president Mike Dean said the police officers listed on Mr Mallard's writ were not concerned about the prospect of being sued.

"I've spoken to some of the officers involved ... and quite frankly they are not concerned at all," Mr Dean told AAP.

"... these officers have never been found guilty of anything by anybody and their legal exposure is nil."

Mr Dean said the ex gratia payment was fair.

"And we don't begrudge him the money, there is actually a real concern that the system let him down that badly and put this man in jail ..., " Mr Dean said.

Mr Quigley said he was outraged that a man who'd been so terribly wronged by the system had been told to fight on.

"This man was taken from the streets as a totally innocent person, imprisoned for 12.5 years, bashed in prison, sent to a psychiatric hospital where he was injected because he wouldn't accept his guilt," Mr Quigley told reporters.

"This is enormous what's happened to him ...

"For a man who has had to fight against the system, the DPP, the police and the government for over 12 years to prove his innocence it's a bitter and cruel blow to be told for the rest of your compensation keep on fighting sunshine.

RELATED ARTICLE

$3.25m is enough to help Mallard forgive and forget: premier

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"That is not fair."

$3.25m is enough to help Mallard forgive and forget: premier

https://www.smh.com.au/national/western-australia/325m-is-enough-to-help-mallard-forgive-and-forget-premier-20090506-av61.html

West Australian Premier Colin Barnett says it's a "vast amount of money" that will set up Andrew Mallard for life.

But the 48-year-old, wrongly jailed for murder, says $3.25 million is not enough to escape the painful memories of his 12 years behind bars.

As supporters sought to organise a petition to plead Mr Mallard's case for a larger payout from the West Australian government, his treatment dominated talkback radio in Perth.

Fairfax Radio's Simon Beaumont said most callers wanted the government to increase its offer.

John Quigley, the shadow attorney-general and a self-appointed advocate for Mr Mallard, told the station he would assist one of the callers who wanted help to prepare a petition.

The male caller said a much larger payout was required to help remove the "stain" the Mallard case had left on Western Australia's reputation.

But the premier told ABC radio: "As much injustice as there is in the Mallard case ... just think about it ... $3.25 million is a vast amount of money.

"It's an amount of money that provides Andrew Mallard with absolute financial security for the rest of his life, so long as that money is properly and well managed."

He conceded Mr Mallard would have to pay federal tax on what state Attorney-General Christian Porter has described as a "gift", and said it was up to him to make his own tax arrangements.

"In the payment ... it's been made clear to him that he is responsible for any tax implications," Mr Barnett said.

"I'm not a tax adviser but he needs to structure that in a way that provides him a lifetime income and minimises tax."

Mr Mallard - who served 12 years of a 20-year jail term before his conviction for the murder Perth jeweller Pamela Lawrence was quashed in 2005 - had asked for $7.5 million for his wrongful imprisonment.

He said on Wednesday he would need double what the government had offered to rebuild his life in Britain, where he planned to live to escape the painful reminders of his time in jail.

Mr Mallard said he had no option but to pursue a Supreme Court writ lodged against 17 defendants, including eight police officers and the Director of Public Prosecutions, who were involved in the case.

He said he would be forced to work overseas because of constant reminder of "what happened to me exacerbates the post-traumatic stress I still suffer today".

Mr Mallard walked free from jail in 2006, the year that police finally eliminated him as a suspect in a cold-case review of the 1994 murder.

The reinvestigation found there was sufficient evidence to implicate convicted killer Simon Rochford in Ms Lawrence's slaying.

Rochford, whose palm print was found during the review, committed suicide in jail after a news organisation reported he'd been identified as a suspect.

The murder investigation and Mr Mallard's wrongful conviction were the subject of a Corruption and Crime Commission (CCC) inquiry into whether police and other officials had engaged in misconduct.

Two assistant police commissioners, Mal Shervill and David Caporn, were forced to step down from their jobs in the wake of the CCC's findings.

Mr Mallard said he was "quite angry" that the public officials involved in his imprisonment had got off "scot-free", with none sacked or prosecuted.

He said he was yet to receive any justice for the wrongs he had endured.

RELATED ARTICLE

'Cruel blow' for man who lost 12 years of freedom

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He said he was yet to receive any justice for the wrongs he had endured.

Officers in Mallard case stood down

Updated 7 Oct 2008

https://www.abc.net.au/news/2008-10-07/officers-in-mallard-case-stood-down/534184

The Western Australian Police Commissioner, Karl O'Callaghan, has stood down two assistant commissioners following misconduct findings against them by the Corruption and Crime Commission (CCC).

The CCC recommended Mal Shervill and Dave Caporn face disciplinary action over their involvement in the wrongful conviction of Andrew Mallard for the 1994 murder of the Mosman Park jeweller Pamela Lawrence.

Commissioner O'Callaghan says the men have been stood down on full pay, but he will wait for their written responses to the findings before deciding what action, if any, to take.

He says the officers will get some time to respond.

"Well it's a minimum of three weeks," he said.

"There is an awful amount of material to be provided and then I have to consider the material and receive legal advice about that material before I can form an opinion."

The police union says the officers maintain they did not engage in criminal behaviour, and any disciplinary action against them will be strenuously disputed.

Mr Mallard spent almost 12 years in jail for the murder of Mrs Lawrence.

He unsuccessfully appealed against the conviction before it was overturned by the High Court in 2006.

In a report tabled in Parliament today, the CCC made four misconduct findings against Mr Shervill and two findings against Mr Caporn.

There were also two findings against senior DPP lawyer Ken Bates, who was the prosecutor at Mr Mallard's trial.

PHOTO: Andrew Mallard spent almost 12 years in jail for the murder of Mrs Lawrence. (ABC TV)

PHOTO: Police Commissioner Karl O'Callaghan says the officers will have three weeks to show why they should not be dismissed. (ABC)

Space to play or pause, M to mute, left and right arrows to seek, up and down arrows for volume.

AUDIO: Police Commissioner Karl O'Callaghan on the CCC findings on Andrew Mallard. (ABC News)

RELATED STORY: Misconduct findings against senior police in Mallard case

Mallard five on 'disaster planning duties'

Staff ReportersPerthNow

December 13, 2007

https://www.perthnow.com.au/news/wa/mallard-five-on-disaster-planning-duties-ng-b119f204b3c089294d351c400ee55a0c

FIVE senior officers involved in the investigation of wrongly convicted Andrew Mallard remain in limbo, but have officially been allocated non-police roles.

WA Police Commissioner Karl O'Callaghan today said he would not take permanent action against the five officers before the release of a report by former NSW Supreme Court judge John Dunford, QC, next year.

Until then, the officers will be involved in duties such as planning for an outbreak of the Avian Flu and other major disaster contingencies.

They will perform these duties until the CCC inquiry findings are released, at this stage expected to be in April 2008 at the earliest.

The officers are assistant police commissioners Mal Shervill and David Caporn, superintendent John Brandham, inspector Alan Carter and sergeant Mark Emmett.

Mr Dunford has been investigating allegations of misconduct by police and prosecutors in the case against Andrew Mallard, who was convicted in November 1995 of the 1994 murder of Pamela Lawrence in her Mosman Park jewellery store.

Mr Mallard spent 12 years in jail before walking free last year.

His conviction was quashed by the High Court in 2005, which declared a miscarriage of justice had occurred.

Mr Dunford is conducting the inquiry for WA's powerful Corruption and Crime Commission (CCC).

"My legal advice instructs that it would be `premature' and `unsafe' to pre-empt (Mr Dunford's) findings,'' Commissioner O'Callaghan said.

The officers would remain stood aside from police duties and work on Emergency Management Business Planning, he said.

"Their skills can be put to good use until the CCC inquiry is completed, conducting major project work in areas such as planning for an outbreak of the avian flu pandemic and major disaster contingencies,'' the commissioner said.

“These officers have high level skills and are being paid decent wages.

"The public rightly expect a return on their investment and it would be untenable to have these officers sitting at home on full pay.

“As Mr Jeremy Gormly (Counsel Assisting the inquiry) has stressed several times to Acting Commissioner Dunford, the submissions that are made by counsel assisting don't in any way amount to findings or opinions or assessments, they are simply submissions for Mr Dunford to consider.”

The Commissioner further stated that he would not be commencing any other internal inquiry or process attempting to analyse the very material that Acting Commissioner Dunford has been engaged to determine.

Counsel assisting the inquiry Jeremy Gormly has recommended 11 adverse findings against Mr Caporn and nine against Mr Shervill.

Police officers polished statements, planted evidence on Mr Mallard, removed and changed facts in witness statements, and rewrote their written accounts of interviews, the inquiry has been told.

The officers have consistently denied any wrongdoing.

Commissioner O’Callaghan also advised that Detective Senior Sergeant Tony Dorosz and Detective Sergeant Jim Stanbury, both serving officers who were named by Mr Gormly as potentially being the subject of an adverse finding, can continue to perform operational policing duties.

The Commissioner said that the submissions pertaining to these officers did not warrant allocating them non-operational duties.

“Until such time as Mr Dunford publishes his report next year I have determined that that there is no purpose in me, or indeed other persons, speculating about what Mr Dunford is yet to conclude,” the Commissioner said.

“I will not be making further statements about the CCC Mallard inquiry until Mr Dunford’s report is published and I have had an opportunity to consider it.”




"Devils Garden ....The Darkest Side of Perth"



A new film is being produced called "Devils Garden... The Darkest Side of Perth", which will publicly expose that Police Corruption in Western Australia ran rife from  the 1950's to 2016 and continuing, with a corrupt section of police being involved in committing crimes, in condoning criminal activity and protecting certain people from being investigated and prosecuted for crimes that they committed... there were people like the late billionaire building magnate, Len Buckeridge who were given the green light to commit what ever crimes they wanted, including murder, assault, rape fraud, robbery etc.. these people were given what they called 
"the Green Light" by Police to commit whatever crimes they wanted without fear of investigation or prosecution ...

There is also a new books coming out this year  "Living Next Door To A Psychopath" and "The Darkest Side of Perth" and a previous book called "Devil's Garden"ISBN: 978174664669 published by Random House in 2007 by  well known Queensland Crime writer Debi Marshall with an in depth investigation into the Claremont Serial Killings and various miscarriages of justice in Western Australia policing and prosecution... and the controversial series of books  entitled "The Triumph of Truth ( Who Is Watching The Watchers?) written in the 1990's which were illegal and clandestinely removed from the Western Australia Alexander Resource Reference Library in about the year 2000, which the film "Devils Garden... The Darkest Side of Perth" takes material from .....
The 1960's American TV Police and Crime Series Called Dragnet used to say at the beginning of each episode ... " These are true stories from Police and FIB files, however the true names have been changed to protect the innocent..."
The film  being produced called "Devils Garden... The Darkest Side of Perth",  is a set of true stories about  police and prosecutors in Perth, Western Australia being involved in committing crimes and covering up for criminals who have committed serious crimes, and deliberately charging people who they know have not committed the crime they have been charged for ..... which  will leave all the true names  exposed and shame the guilty ....
One of the producers of the film "Devils Garden... The Darkest Side of Perth" stated .....

 "... there seems no doubt that the Western Australian Police are not going to properly investigate and charge the real Claremont Serial Killers and those that helped carry out these most serious  crimes and covering up those responsible for such serious crimes .... so the film will in effect bring the truth to light so at least the parents, families and friends of the victims and the general public can get to know the truth.... the problem is that a proper police investigation and inquiry would lead investigators too close to their own ranks and powerful business people and politicians who were either involved or know who are involved and are prepared to help cover the truth up..."

One of the producers of the film "Devils Garden... The Darkest Side of Perth" further stated .....

".... the NYT.bz investigation report into the Claremont Serial Abductions and Killings which we are using as part of the information supporting the story presented in the our film shows clearly that the arrest and the $200 million plus cost of the prosecution of Bradley Robert Edwards as the alleged sole Claremont Serial Abductor and Killer, who, without any help or protection from others ....  is to satisfy the general public that the Claremont Serial Killer has been caught, and that there is no need to look any further for anyone involved in the Claremont Serial Abductions and Killings ..... regardless of any possible alleged involvement of Bradley Robert Edwards  in the Claremont Serial Abductions and Killings ....... which is extremely doubtful from the information we have seen so far..... they is no doubt that other more powerful  and well connected people in Perth, Western Australia .,. including Western Australian Police have been involved in  the Claremont Serial Abductions and Killings and also the covering up of the the real truth behind  the Claremont Serial Abductions and Killings ...... our film will attempt to set the public record straight ..... we are expecting threats on our lived#s for producing this provocative film .... and or legal action to try and stop it been shown to the public ... however ... regardless of these expected reactions the film has to be made and the truth has to be told to the public ..... it seems that not even the solicitors and barristers representing Bradley Robert Edwards are interested in knowing the truth that will help in defending their client Bradley Robert Edwards who has been charged and accused of the Claremont Serial Abductions and Murders  "

Waiting list for copies of the Collectors Edition of new book titled
"The Darkest Side of Perth, Western Australia"  is  currently in the process of being published:

Anyone interested in obtaining a copy of the Collectors Edition of the book..
"The Darkest Side of Perth, Western Australia" 
please email:
The AWN Publishing Manager
AWN News Group
Email: admin@awn.bz


 

ROYAL COMMISSION INTO WHETHER THERE HAS BEEN ANY CORRUPT OR

 CRIMINAL CONDUCT BY WESTERN AUSTRALIAN POLICE OFFICERS

COMMISSIONER: G.A. Kennedy AO QC

Held at Perth on the 16th day of September, 2002

Counsel Assisting

Mr K. Pettit SC

Appearances Mr J.C. Hammond (with him Ms J. Pepe)

Mr A.J. Power

Mr W.M. Bryant

AT 9.47 AM HEARING COMMENCED: 


https://www.slp.wa.gov.au/publications/publications.nsf/DocByAgency/04E2DAF2F53EFBDC48256C32003886E2/$file/S020912.pdf

 

 

https://www.slp.wa.gov.au/publications/publications.nsf/DocByAgency/FCF7B2E86660459B48256C3600220120/$file/S020916.pdf




Caporn resigns from WA Police

https://www.watoday.com.au/national/western-australia/caporn-resigns-from-wa-police-20090211-8443.html





Gruesome details recanted at Sarah McMahon inquest

A PERTH coroner has lifted a suppression order on the identity of a key witness to a murder 12 years ago after she recanted her story.

https://www.news.com.au/national/western-australia/key-mcmahon-inquest-witness-recants-statement/news-story/d9d497506227964f3c244abae4aac356

Staff Writers

AAPDECEMBER 14, 2012

A PERTH coroner has lifted a suppression order on the identity of a key witness to a murder 12 years ago after she recanted her story.

Natasha Tracy-Ann Kendrick, whose name had been previously suppressed for legal reasons, said in a November 2011 statement to WA Police that she saw the bloodied and strangled body of Sarah McMahon, who has been missing since November 8, 2000.

Ms Kendrick originally told police she was called to a house in Marangaroo by her friend Gareth Allen, who said his trucking company co-worker and part-time housemate Donald Morey had killed a girl at the property and help was needed cleaning up.

She said in her statement that she and Mr Allen's wife, Marta Margaret Allen, had cleaned up after seeing Ms McMahon's naked body on Morey's bed, with rope looped around her neck and congealed blood on her face, and also saw the body being removed from the house, wrapped in Morey's quilt and placed in Mr Allen's ute.

But testifying today at an inquest into Ms McMahon's disappearance, Ms Kendrick denied any knowledge or involvement in the matter, saying she was "messed up'' on drugs when she made the statement to police.

"I don't remember seeing any body,'' she told Perth's Coroner's Court.

"I didn't see any girl - I would remember.

"I didn't even go there as far as I know.

"I don't know what happened to Sarah McMahon.''

Ms Kendrick, who said she had a terminal disease, told the court her illness and the drugs made her "really mentally confused''.

And while her statement to police bore her signature, the key content was incorrect, she said.

In a recording of a telephone conversation with her brother that was played to the court, Ms Kendrick said she'd done the right thing in making the statement to police.

"Someone's got to do something - this is wrong,'' she said in the recording.

"I admitted my part in it. I feel good about it.

"I'm not going to go to my grave thinking, f***, if only that one statement might have helped and I hadn't done it.''

After her brother asked her who did it and she replied, "Don Morey'', she added, "He's a serial killer. He's done it over east''.

While she said to her brother in the recording, "I've even signed a statement'', she told the court, "this is not my statement''.

"I was rambling a lot and on drugs,'' she said of the conversation with her brother.

"Obviously that's me and I was more messed up than I thought.''

She also told her brother she was concerned about threats to her son.

On the final day of the inquest tomorrow, Morey is scheduled to give evidence.

He is serving 13 years for the attempted murder of a Perth prostitute in 2004.

At the opening of the inquest, coroner Alastair Hope was told that police had long suspected the involvement of 57-year-old Morey in Ms McMahon's disappearance.


Donald Morey, aka Matusevich

Further Background on Donald Morey Aka Matusevich 


https://www.websleuths.com/forums/threads/australia-claremont-serial-killer-1996-1997-perth-western-australia-6.318778/page-18

 

https://news.google.com/newspapers?nid=1300&dat=19750925&id=QuBUAAAAIBAJ&sjid=P5IDAAAAIBAJ&pg=3838,5604554&hl=en

The Age - Sep 25, 1975  

Two convicts found gulty of axe-killing

Two Pentridge prisoners were found guilty in the Criminal Court last night of having murdered another prisoner, found bashed to death with an axe.

Claude Joseph Thompson, 24, laborer, of Gertrude Street, Fitzroy, and Donald Victor Matusevich, 20, cook, of Beachgrove Street, Mornington, were sentenced to gaol for the term of their natural life.

Both pleaded not guilty to charges of having murdered Graeme John Whateley, 28, at Pentridge on November 12 last.

Whately was found guilty to charges of having murdered Graeme John Whateley, 28, at Pentridge on November 12 last.

Whateley was found lying on bed with severe head injuries. there also had been an attempt to strangle him.

The Crown alleged that Thompson and Matusevich bashed Whately to death with an axe

The court was told that the three were working as clerks in a hospital ward at Pentridge.

Whateley had been transferred to Pentridge from Ararat and was waiting to be taken to another gaol.

Evidence was given that a prisoner who escaped from Ararat gaol was recaptured soon after with the help of information provided by Whateley.

The Crown alleged that Thompson and Matusevich planned to try to escape and saw Whateley as an obstacle to their plan.

Prison officers told the court that on the night Whately was killed, attempts were made to escape from the hospital ward.

They said a TV set was removed from a wall, attempts were made to bach holes in the ceieling and the toilet wall, and a fireplace unit was removed, apparently to investigate the possibility of getting out via the chimney.

In alleged records on an interview with police given to the court, both accused admitted having killed Whately.

Matusevich gave sworn evidence at the trial that he took no part of the attack.

He (Matusevich) said Thompson went berserk with the axe.

He (Matusevich) said he had no recollection of making the record of the interview because he (Matusevich) took some tablets after the incident.

Counsel for Thompson called two psychiatrists and one psychologist, who gave evidence that Thompson had a history of psychiatric illness and admitted in the past to other crimes he did not commit.

The doctors said that if he had killed Whately. if was possible that he was insane at the time.

After a trial before Mr Justice Murray, the jury of seven women and five men took about eight and a half hours to reach a verdict.

Mr. Philip P.C. Martin prosecuted, Mr. K. H. Marks, QC, with Mr. Mr H. J. casey, appeared for Matusevich, Mr Philip Dunn, with Mr. P.J. Cahill, appeared for Thompson.

https://news.google.com/newspapers?nid=1300&dat=19770913&id=qncQAAAAIBAJ&sjid=YJIDAAAAIBAJ&pg=1893,3347410&hl=en

The Age - Sep 13, 1977 

 Convict cleared of 1974 axe murder

by David Withington

A man last night won his two-year fight and was cleared of the axe killing of a Pentridge prisoner.

"it's been just like a nightmare," Mr. Donald Victor Matusevich, 22 said outside the Criminal Court.

"It's something you can't express in words. I'm just so happy that it's over."

" the last few years have been very hard, knowing that I'm innocent," he (Donald Victor Matusevich) said.

Mr. Donald Victor Matusevich's fight to clear himself began in September 1975, when a Criminal Court jury found him guilty of murder.

He (Donald Victor Matusevich) lost his appeal to the Court of Criminal Appeal but, in July this year (1977), the High Court granted a re-trial.

After deliberating for seven hours, the second jury acquitted him (Donald Victor Matusevich).

Mr. Justice Murphy ordered his (Donald Victor Matusevich) release from Custody as he has completed the sentence he was serving at the time of the killing.

Mr. Donald Victor Matusevich had pleaded not guilty to murdering Graeme John Whately, 28, who was based to death in the Pentridge hospital ward on November 13, 1974.

The Crown alleged he and another prisoner, Claude Joseph Thompson, repeatedly hit Whately over the head with an axe.

On September, 24, 11975, the two were found guilty of murder.

Mr. Donald Victor Matusevich won his High Court appeal on the grounds that he had been improperly cross-examined on his prior convictions and the jury had been misdirected on two points of law.

Thompson had his conviction quashed last year by the Court of Criminal Appeal on the ground that the trial judge, Mr Justice Murray, had misdirected the jury on the law relating to insanity.

He (Claude Joseph Thompson) was found not guilty on the ground of insanity and ordered to be held in strict Custody.

On April 6th, this year (1977) he (Claude Joseph Thompson) was found hanged.

Application for special leave to appeal granted. 
Appeal allowed. 
Order that verdict of guilty of and conviction for murder and sentence thereon by the Supreme Court of Victoria be quashed and in lieu thereof order that the matter be remitted to that Court for retrial. 

In Matusevich v The Queen,[16] Matusevich and his co-accused Thompson were prisoners

Pentridge Jail and were jointly charged with the murder of a third prisoner in their ward. The

deceased had been killed with an axe and Matusevich and his co-accused were the only people

present at the time of the killing. Matusevich was alleged to have admitted that he and his

co-accused killed the deceased but he gave evidence denying the truth of those statements and that

he had no recollection of what he said at the police interview. Matusevich claimed that his

co-accused was a madman who not only killed the deceased but threatened to kill him if he called

for assistance; he was only able to press the alarm button some time after the killing. He said he

had no convictions for offences of violence. Matusevich was wrongly cross-examined in his

murder trial as to his prior convictions for previously escaping from custody, house breaking and

stealing, which the prosecutor suggested were offences of a violent nature.[17] During

cross-examination Matusevich admitted that he wrecked and tried to set fire to premises he broke

into when he was drunk and that he now had no memory of his actions on those occasions. Aickin

J, with whom Gibbs, Stephen and Mason JJ agreed, rejected the Victorian Court of Criminal

Appeal's finding of no substantial miscarriage of justice because evidence of these prior

convictions was "just the kind of prejudicial material that might in this very unusual case have

tipped the balance against him.".[18]

R v Salmon

MATUSEVICH v. THE QUEEN HIGH COURT OF AUSTRALIA Gibbs, Stephen, Mason, Murphy and Aickin JJ.

MATUSEVICH v. THE QUEEN(1977) 137 CLR 63322 June 1977

Criminal Law (Vict.)

Criminal Law (Vict.)—Murder—Concert—Capacity to act in concert—Whether sane person can be guilty of acting in concert with insane person—Direction to jury—Evidence—Character and previous convictions of accused—Cross- examination—Accused establishing own good character—Permission of judge required for prosecutor to ask questions tending to show bad character or commission of previous offences—Evidence by one accused against another charged with same offence—Cross-examination by prosecutor—Permission not obtained—Whether Crown may cross-examine as to character or previous convictions where accused gives evidence against co-accused—Substantial miscarriage of justice—Crimes Act 1958 (Vict.), s. 399 proviso (e).

DecisionsOrders

Application for special leave to appeal granted. 
Appeal allowed. 
Order that verdict of guilty of and conviction for murder and sentence thereon by the Supreme Court of Victoria be quashed and in lieu thereof order that the matter be remitted to that Court for retrial. 



Part of Donald Morey's abduction and murder kit is similar to the items that Western Australia Police officer  Con Bayers, who was the former head of the prostitution taskforce said he found in Donald Morey's Commodore Holden car boot driving through Northbridge, Perth, Western Australia, that looked liked and unmarked police car . Mr and Mrs Gareth Allen say that Donald Morey always carried around a black bag they found in Donald Morey's room which contained a real of silver, gaffer tape, two knives and explicit pornograpghic material of what looked like dead women in sexual positions...


A serious question that needs to be answered by Karl O'Callaghan, the Western Australian Commissioner of Police is:
Why did it take over a week for the Western Australian Police for come and collect a bag belonging to career criminal and convicted attempted murderer Donald Morey which the two owners of the house in Marangaroo, Mr and Mrs Gareth Allen who were the bosses of Donald Morey say contained a real of silver, gaffer tape, two knives and explicit pornograpghic material of what looked like dead women in sexual positions...
which is similar to the items that Western Australia Police officer  Con Bayers, who was the former head of the prostitution taskforce said he found in Donald Morey's Commodore Holden car boot driving through Northbridge, Perth, Western Australia, that looked liked and unmarked police car 




Murder suspect Donald Morey says missing woman Sarah McMahon is alive

CORONER Alistair Hope says evidence that missing woman Sarah McMahon was a victim of homicide appears "overwhelming."

https://www.news.com.au/national/western-australia/murder-suspect-donald-morey-says-missing-woman-sarah-mcmahon-is-alive/news-story/369008c4a8dc1d4854bd7cc66c647dcf

THE West Australian coroner has been urged to find that a man serving 13 years in jail for the attempted murder of a Perth prostitute is the most likely person to have killed Sarah McMahon, who disappeared in 2000.

Ms McMahon was 20 when she went missing in November 2000.

Three police investigations into her disappearance have failed to uncover her whereabouts.

An inquest into the matter wound up late on Friday, with Coroner Alastair Hope saying there was no reason to suggest Ms McMahon died of natural causes, suicide or a drug overdose.

The evidence that she had died of homicide appeared overwhelming, Mr Hope said.

He also said evidence pointed to one of her acquaintances, Donald Morey, 57, who was the last person to have spoken with her, as the prime suspect.

Her car and mobile phone had been abandoned in Midland, where evidence showed she and Morey were around the time she disappeared.

Mr Hope also described as ``sinister'' evidence presented by several witnesses about a bag owned by Morey, containing ropes, knives, gaffer tape and extreme pornography.

Several witnesses also suggested Morey was attracted to Ms McMahon and that she did not return his feelings.

There was also evidence of their relationship changing, with Ms McMahon possibly having broken ``a code of silence'' about drug dealing two days before she went missing.

Morey testified at the inquest on Friday, saying Ms McMahon was alive and living overseas.

Philip Urquhart, counsel assisting the coroner, said the claim that Ms McMahon disappeared voluntarily was "patent nonsense'' as she seemingly had a strong relationship with her family and friends.

Morey had contradicted his claim that she didn't want to be found, by appearing in two TV interviews in 2001 appealing to the public to help locate her.

Mr Urquhart also said the credibility of several witnesses this week was lacking.

In particular, key witness Natasha Tracy-Ann Kendrick recanted a November 2011 statement to police in which she said she had seen Ms McMahon's naked body on Morey's bed, with rope looped around her neck and congealed blood on her face at a Marangaroo house he shared with trucking colleague Gareth Allen and his wife Marta Margaret Allen.

She said in the statement she and Ms Allen helped clean up the grisly aftermath on Mr Allen's request, and saw the body being removed from the house, wrapped in Morey's quilt and placed in Mr Allen's ute.

But on Thursday, Ms Kendrick denied any knowledge or involvement in the matter, saying she was "messed up'' on drugs and alcohol when she made the statement.

"In my submission, she's a thoroughly discreditable witness,'' Mr Urquhart said.

Ms Kendrick's assertion that she didn't say what was contained in the statement was "an obvious lie'', he said, given she had repeated major aspects of it in a conversation with her brother six hours after the police interview.

"It's a somewhat complicated web that they've weaved between them all,'' Mr Hope said.

Whether the coroner will refer the matter to the Director of Public Prosecutions and make adverse findings against the witnesses will be revealed when Mr Hope hands down his findings on January 17.

Originally published as McMahon inquiry wraps up


ROYAL COMMISSION INTO WHETHER THERE HAS BEEN ANY CORRUPT OR CRIMINAL CONDUCT BY WESTERN AUSTRALIAN POLICE OFFICERS

COMMISSIONER: G.A. Kennedy AO QC

Held at Perth on the 16th day of September, 2002

Counsel Assisting

Mr K. Pettit SC

Appearances Mr J.C. Hammond (with him Ms J. Pepe)

Mr A.J. Power

Mr W.M. Bryant

AT 9.47 AM HEARING COMMENCED:

COMMISSIONER: Yes, Mr Hammond?

https://www.slp.wa.gov.au/publications/publications.nsf/DocByAgency/04E2DAF2F53EFBDC48256C32003886E2/$file/S020912.pdf

 

https://www.slp.wa.gov.au/publications/publications.nsf/DocByAgency/FCF7B2E86660459B48256C3600220120/$file/S020916.pdf

Ex-Claremont killer case cop says he ‘prays for Sarah Spiers’

Kim MacdonaldThe West Australian

Sunday, 25 December 2016

Dave Caporn says he thinks about the families of Sarah Spiers, Ciara Glennon and Jane Rimmer on a daily basis.

The former head of the Macro task force into the Claremont serial killer says he is praying for more information about missing woman Sarah Spiers, and has defended the investigation of the crime.

Breaking his long-running silence on the case, David Caporn said he had not stopped thinking about Ms Spiers and the other two women who went missing from Claremont in 1996 and 1997, even after he left the police service in 2009.

Bradley Robert Edwards was last week charged with the murders of Ciara Glennon and Jane Rimmer.

Mr Caporn, who headed the task force between April 1997 and February 1999, said it was an “understatement” to say he was pleased for the families of Sarah, Jane and Ciara that there had finally been a breakthrough in the case.

“Hardly a day goes by without me thinking about the families of Sarah, Jane and Ciara,” he said. “I hope and pray that more will come to light about Sarah.”

Mr Caporn also defended the task force’s handling of the investigation, which has been criticised for focusing on the wrong prime suspect for two years.

A 2007 book, The Devil’s Garden, suggested detectives had botched the inquiry, singling out Mr Caporn for “tunnel vision” by focusing on a Cottesloe public servant, Lance Williams, as a prime suspect.

Labor MP John Quigley told State Parliament in November 2008 that it was a “dud” investigation.





Bradley Robert Edwards after being taken into custody last week.

But an unapologetic Mr Caporn said yesterday the investigation did not focus on Mr Williams in the early days or have him as its sole focus. “The task force commenced investigation in June 1996, five months after the disappearance of Sarah (Spiers),” he said.

“Mr Williams did not come to the attention of the task force until several months after the disappearance and then discovery of Ciara’s body. The task force had already been investigating for over 18 months on a massive scale before we even started any inquiries about him.

“The allocation of resources to pursue any particular line of inquiry was always based on what was known at the time. And at that time, the only way we could eliminate persons of interest was by alibi.

“Alibis become harder to lock down the more time that passed, so the legwork by detectives on each and every reasonable person of interest was enormous.”

Mr Caporn became substantive superintendent at Major Crime in 1997 but maintained involvement in the Macro task force until 2001 when he was appointed to head up Operation Zircon into the Lathlain bombing. In 2004, he was appointed assistant police commissioner.

He was temporarily stood down on full pay in 2008 over his role in the wrongful conviction of Andrew Mallard in 1994.

There was no evidence of police searching the home of accused Claremont serial killer Mr Edwards in Kewdale yesterday.

McMahon suspect, Donald Morey aka Matusevich
'said he had killed before'

               CHRISTIANA JONES rthe West Australian Newspaper - Tuesday, 11 December 2012 

https://thewest.com.au/news/australia/mcmahon-suspect-said-he-had-killed-before-ng-ya-285803

                 

                      McMahon suspect Donald Morey 'said he had killed before'

A man once suspected by police of being involved in the disappearance of Sarah McMahon told a friend he had killed before and offered to do the same again, an inquest has been told.


Srah Ann McMahon

Marta Allen gave evidence at a coronial investigation into the disappearance of Sarah McMahon, 20, who was last seen leaving her Claremont workplace on November 8, 2000.

The inquest has heard that police carried out two investigations and a case review over the last 12 years, one of which had focussed on the possible involvement of career criminal Donald Victor Morey - a man 25 years older than the missing woman who formed a close friendship with her and allegedly supplied her with drugs.

The investigations had raised suspicions of his involvement but no evidence that could substantiate a charge, the inquest heard, with police hoping an inquest would yield further information.

Today, Ms Allen described Morey as a "strange man" and said she had immediately wondered if he was linked to Ms McMahon's disappearance when she saw the young woman's image in missing persons reports.

"I thought then and there I wonder if Don had something to do with her disappearance," she said.

Morey - who had worked for her husband and is now in jail after being convicted in 2005 of an attempted murder of a sex worker - has denied any involvement in Ms McMahon's suspected death and is expected to give evidence in the inquest.

Ms Allen said Morey, who had lived with her husband during parts of the week in 2000, had claimed he had killed people and once asked if she was scared of him.

"He told me that he was in the SAS... that's where he was taught to kill people," she said. "He told me that he has killed before."

Ms Allen said Morey made an effort to charm women and had once offered to kill her husband Gareth Allen after eavesdropping on an argument while living at Mr Allen's home.

"He was not joking, he was deadly serious," she said.

Ms Allen said she had once been in a vehicle with Morey when he left her "petrified" and "shocked" after saying to her: "It's just you and me now, are you scared?"

She also described her shocked husband showing her a bag found in Morey's room that had contained ropes, knives, gaffer tape and pornography including images of bound and gagged naked women who "looked dead".

Ms Allen said she called the police but that Morey's partner had collected the bag before they arrived.

Ms Allen also described seeing Morey once cleaning the floor of his truck out with hot water.

"This would have been just after (Ms McMahon) appeared on TV," she said.

The inquest has heard that a person known as "witness A" told police they had been called by a frantic Mr Allen to the home he shared with Morey and was shown Miss McMahon's naked body in Morey's bedroom.

The witness claimed that Ms Allen had helped clean the home afterwards but today Ms Allen vehemently denied the claim and labelled the allegation a fabrication.

The inquest continues

Former WA Assistant Police Commissioner Dave Caporn

4 May 2011, 

https://www.abc.net.au/news/2009-09-09/former-wa-assistant-police-commissioner-dave-caporn/1423348

CCC finds police misconduct in Andrew Mallard case

THE Corruption and Crime Commission has made findings of misconduct against two of WA's most senior police and the Deputy Director of Public Prosecutions over their role in the wrongful conviction of Andrew Mallard for murder.

Colleen Egan and Nicole Cox, with AAP

https://www.news.com.au/news/top-cops-stood-down/news-story/21815e87f8623ed0c369959dd840c32a

OCTOBER 21, 2009

THE Corruption and Crime Commission has made findings of misconduct against two of WA's most senior police and the Deputy Director of Public Prosecutions over their role in the wrongful conviction of Andrew Mallard for murder.

The CCC report released this morning recommended that disciplinary action be considered against assistant police commissioners Mal Shervill and David Caporn and Senior DPP Prosecutor Ken Bates.

Mr Mallard's sister, Jacqui Mallard, this afternoon described the report as 'soft' but said it warranted strong action.

Police Commissioner Karl O'Callaghan this afternoon stood down Mr Shervill and Mr Caporn with full pay, saying he had not lost confidence in them and they had been given time to respond to the allegations.

Police Union president Mike Dean said the officers were very disappointed with today's report, did not agree with the findings and were seeking legal advice.

The report by retired NSW Judge John Dunford QC resulted from his inquiry into the wrongful conviction of Mr Mallard for the murder of Pamela Lawrence in 1994.

One of the supporters who helped clear Mr Mallard's name, Labor MP John Quigley, was cleared in today's report of misconduct relating to allegations he threatened a policeman.

The report did not recommend criminal charges against any public officer.

Police Commissioner Karl O'Callaghan will give a press conference this afternoon regarding the future of Mr Caporn and Mr Shervill.

The CCC report tabled in the Parliament today included four opinions of misconduct against Mr Shervill, who as a detective sergeant led the murder investigation, and two against Mr Caporn, who as a detective sergeant worked on the investigation.

There were also two opinions of misconduct against Mr Bates, who prosecuted Mr Mallard at the 1995 trial.

The report found Mr Shervill had caused witnesses to change their statements, dropping references to their earlier accounts.

It said Mr Shervill made false entries in police records in relation to those changes and asked a chemist to delete any reference to salt water testing on Mr Mallard's clothing in a report given to his defence lawyers.

Mr Dunford's report said Mr Shervill had also failed to disclose witnesses' original statements, including forensic test reports and unsuccessful attempts to locate a weapon capable of inflicting the wounds that Mrs Lawrence suffered, to Mr Mallard's lawyers.

Mr Caporn had written a letter to the police prosecutor in 1994 which contained incorrect and misleading information relating to the case and also caused witnesses to alter their statements.

Mr Bates had prosecuted the trial on the basis that a wrench depicted by Mr Mallard in a drawing was the murder weapon, but made no attempt to prove Mrs Lawrence's injuries were consistent with the use of a wrench, the report said.

He had also failed to disclose forensic test results about the wrench to Mr Mallard's lawyer and did not ensure the results were disclosed by police.

Mr Dunford's report also made recommendations regarding police interviews of mentally ill suspects, police training and the documentation of advice received from the DPP's office.

Attorney General Christian Porter read the recommendations of the CCC and said there is now a process which must be followed.

“The Solicitor General will be given time to consider the report in full and to revert to me with his advice," Mr Porter said. 

“Any meeting with Mr Mallard on the issue of compensation would most usefully occur after the relevant advice has been received.”

Report soft, says Mallard's sister

Mr Mallard’s sister, Jacqui Mallard, said the report was “soft” and called for an independent prosecuting office to evaluate whether charges should be laid.

She called on Commissioner O’Callaghan to take strong action.

“I haven’t had time to study the report in full but there are some officers who have been very, very lucky,” she said.

“We’ll wait to see what the Commissioner has to say about that.

“The Commissioner has to ask himself, what confidence can the WA public have in the police force with these people working for it?”

Mr Quigley, who fought for Mr Mallard’s release, said the compensation figure “could not be less than $10 million”.

“Andrew Mallard will be suing the state of WA and at the same time negotiating with the state of WA for a massive pay-out,” he said.

“It’s not just lost income, it’s all the pain of his dad dying while he was in jail – money just cannot compensate.”

He said the CCC had flown someone to the eastern states, where Mr Mallard is living, to “sell him the report”.

Mr Quigley said he was pleased to be vindicated and shrugged off a comment by Commissioner Dunford that his behaviour towards an undercover police officer was not condoned.

“I stand by my behaviour utterly, it was within the law,” he said.

“There was a catatonic failure of justice in this state, an innocent man was held for 12 years.

“I’m not interested in some retired judge who comes over here and says, ‘I don’t condone John’s behaviour’.”

Mr Quigley was commended in the report’s conclusions for his efforts to have Mr Mallard freed and exonerated.

Senior police stood down

This afternoon, Police Commissioner Karl O'Callaghan confirmed he had stood Mr Caporn and Mr Shervill down from duty on full pay.

``I've issued a notice of intention to remove. All that is, is a request for them to furnish me with information. I've not lost confidence in them at this stage - there is no reason for me to lose confidence,'' Mr O'Callaghan said.

``I have to follow a due process. It's a due process in law and they have been given time to respond to the allegations and the material that is put forward in the report by Commissioner Dunford.''

Mr O'Callaghan said the officers had been given three weeks to respond.

He would then consider the material and seek legal advice. The officers' tenures are due to expire in February.

``I've asked them to show cause why I shouldn't lose confidence in them, but I'm not in a position to make a statement about my confidence in those officers until I've had time to consider all of the material they have to provide me with,'' he said.

Asked if this was the darkest moment in the history of WA Police, Mr O'Callaghan said:

``This happened 14 years ago - a lot of things have changed in the West Australian Police in the last 14 years and those things are actually mentioned in the report by Commissioner Dunford.

``A lot of changes have been made in the last few years, but changes are still being made. There is a major project underway in the WA Police about investigative interviewing of all sorts of people, and dealing wiht people with mental illness is one part of that.

``Obviously it's disappointing to get a report like this but I have to respond to the report as I'm required to do. I'm the Commissioner of Police. I have to preserve confidence in the WA Police.''

WA Police Union president Mike Dean said the officers were very disappointed with today's report and did not agree with the findings. They are seeking further legal advice from their QCs.

``The strength of these opinions - and they are opinions - of Dunford are obviously going to be tested and reviewed over the next few days by our counsel and then those officers will be in a position to either contest this issue or accept the findings,'' Mr Dean said.

``Given the context of the original allegations, they are very thin indeed.

``Many of the officers have been exonerated, but unfortunately we have two left.

``This process has obvioulsy destroyed them, destroyed their families, destroyed their reputations and yes, they are upset.

``Probably the most upsetting thing for them is the Mallard case itself and what happened to Mallard.

"These are not people of ill will. They are good honest people and they were trying their best for their community. The end result is yet to come and that will be settled hopefully within the next few weeks for everyone's sake.''

Prosecutor to appeal

The WA Director of Public Prosecutions, Robert Cock, said this afternoon he had instituted disciplinary proceedings against Mr Bates under the Public Sector Management Act.

Mr Cock said he had written to his deputy today and expected the process to take about six weeks.

Mr Bates would continue to work at the DPP but not do court work.

Mr Bates released a statement today that he was “bitterly disappointed by the outcome” and planned to appeal.

“The findings are not accepted by me,” he said.

“I conducted the prosecution of Andrew Mallard under difficult circumstances and did not deliberately fail to disclose any relevant evidence.

“I have always conducted myself ethically.

“I will be exploring all possible legal avenues to challenge the findings. To do otherwise would be a betrayal of myself and everything I stand for.”

Police 'effectively exonerated'

The senior counsel for the police officers, Ron Davies QC, said the CCC’s report had “effectively exonerated” Assistant Commissioners Caporn and Shervill and completely exonerated the other three detectives involved in the investigation, Superintendent John Brandham, Inspector Alan Carter and Sergeant Mark Emmett.

Mr Davies said there were no findings that any of them had engaged in corrupt or criminal behaviour.

“The original 50-plus allegations of serious misbehaviour against the officers, made in the course of a sustained and carefully orchestrated campaign against them, have been largely dismissed as being without any substance with the result that only a handful of expressions of opinions of misconduct remain against Assistant Commissioners Shervill and Caporn,” he said.

“These opinions are not supported by the evidence and will continue to be vigorously disputed.

“They are not, in any way, final legal determinations.”

Mr Davies said any disciplinary action would be strenuously contested.

Minister 'concerned'

Police Minister Rob Johnston said today that he had read the recommendations of the Corruption and Crime Commission (CCC) report into the alleged misconduct of public officers in connection with the investigation into the murder of Pamela Lawrence and the prosecution of Mr Andrew Mallard.

“I am naturally concerned at the misconduct opinions by the CCC against two of our most senior officers,” Mr Johnson said.

“I have spoken to the commissioner, who is the appropriate public officer to take action and who will deal with the findings against the officers.

“It would be inappropriate for me to make any further comment that could prejudice or influence his actions, because I may have a role to play at a later stage depending on the outcome of any disciplinary proceedings.”


Colleen Egan has been investigating the Mallard case since 1998. During that time she has been a supporter of Mr Mallard and his family.

With AAP

David John Caporn resigns from WA Police



https://www.watoday.com.au/national/western-australia/caporn-resigns-from-wa-police-20090211-8443.html

A senior police officer who was stood down for his involvement in the wrongful conviction of Andrew Mallard has resigned from the force to accept an executive role at the Fire Emergency and Services Authority.

Assistant commissioner Dave Caporn was stood down from police duties along with fellow assistant commissioner Mal Shervill following a Corruption and Crime Commission inquiry into the Mallard conviction.

Mr Mallard was wrongly jailed for 12 years over the murder of Mosman Park jeweller Pamela Lawrence in 1994. The overturning of his conviction led to the CCC inquiry, after which acting commissioner John Dunford registered two opinions of misconduct against Mr Caporn.

Police Commissioner Karl O'Callaghan today accepted Mr Caporn's resignation from WA Police, which was a decision entirely of Mr Caporn's making.

"As he is no longer a serving officer, the current evaluation by police of the findings against Mr Caporn by acting CCC commissioner Dunford with regard to Andrew Mallard will cease immediately," Mr O'Callaghan said.

"No further action will be taken and I wish Mr Caporn well with his new career."

Mr O'Callaghan said the police evaluation of the findings against Mr Sherville in the Dunford Report would continue.

He remains stood down from duty pending the outcome of that evaluation.

Mr Shervill's contract as assistant commissioner expires at midnight on February 19 this year after which his rank will return to the rank of superintendent.

Mal Shervill resigns

 

https://www.watoday.com.au/national/western-australia/mal-shervill-resigns-20090630-d3mw.html

 

Former assistant police commissioner Mal Shervill, who played a big role in the wrongful imprisonment of Andrew Mallard, has resigned.

Police Commissioner Karl O'Callaghan has this afternoon accepted a letter of resignation from Mr Shervill, which is effective immediately.

 

Mr Shervill had already been demoted to Superintendent from his previous post over the affair.

Mr O'Callaghan said that prior to receiving Mr Shervill's resignation, he had not made a final decision in relation to the embattled officer's future as he had not yet received a response from Mr Shervill to his most recent letter outlining his concerns.



MR PETTIT: I call David John Caporn.

 COMMISSIONER: Could I have your full name, please, Mr Caporn?

 MR CAPORN: David John Caporn.

COMMISSIONER: Do you have any objection - - conscientious objection to taking an oath on the Bible?

 

MR CAPORN: No, I don't.

COMMISSIONER: Thank you. If you would take the Bible and read the oath aloud, please.

DAVID JOHN CAPORN sworn:

COMMISSIONER: Thank you. Sit down.

EXAMINED BY MR PETTIT SC:

 MR PETTIT: Your full name is David John Caporn and you are district superintendent in charge of West Metropolitan?---That is correct, yes.

And you have been for a mere couple of weeks - - months?---No. Well, I was initially appointed there in January, but because of my command role in Operation Zircon I was held over. Then I had some leave. I've actually only been there for 2 weeks, half of which I've been tied up in this matter.

Yes. And I think you joined the police force in 77?---In - - yes; in January 1977 I joined as a police cadet.

Which means you've been in the force for 25 years-odd?--- That's correct.

How long have you been a commissioned officer - - -

MR PETTIT: - - - a commissioned officer?---I've been a commissioned officer for the last 6 years.

And I don't want to go back over the 25 years, but can you tell us in brief the areas in your service as - - you were previously a detective, I think?---Yes. I've been - - well, I was a detective right up until the time I've taken up the position at West Metropolitan. So I was a detective up until 2 weeks ago.

What are the areas that you've worked in as a detective?--- I've been 18 years as a detective. In that time - - or the last 9 years specifically have been spent in the investigation of major crime. Prior to that, suburban detectives, etcetera, etcetera. The usual movement around the detective branch, but the last 9 years specifically I've spent in the Major Crime Investigations area. I've also, in that time, been appointed as the - - to take command - - well, after the disappearance of Ciara Glennon, I was given command of the Macro Taskforce. That was in April 1997 when I was promoted to inspector, and also on the 1st of September last year I was removed from all divisional duties and appointed as operational command for Operation Zircon. In respect of my divisional office, it was the 22nd of June in 1998 that I was removed from full-time duties at Macro, to take up the position in charge of the Personal Crime Division as an acting superintendent.

Yes. That's the point at which I want to take up the story really. Personal Crime Division encompasses obviously child abuse and sexual assault, but what else?---There's four areas - Child Abuse Investigation Unit, Sexual Assault Squad, the Homicide Squad at the time. I mean, bearing in mind that Personal Crime Division has changed now, at the time it was Homicide Squad, the Missing Persons Investigation Unit. An additional role that I had there was, I also remained in command of Macro. So I had the four business areas plus the command of Macro, and at the time I moved up into Personal Crime I appointed an operations manager to help me manage that issue.

I think at the time you took up that appointment almost immediately you were asked to look at some particular problems at Child Abuse Unit?---It was the reason the decision was made in the first place. At the end of May in - -

Sorry. Which decision?---The decision to put me in the position as acting superintendent of Personal Crime. At the end of May 1998 there were some major issues which have been discussed in earlier evidence about the Personal Crime Division Child Abuse Investigation Unit. It is as a result of those issues that I was summonsed by Mr Atherton and appointed as the acting superintendent at Personal Crime Division and one of my primary tasks was to conduct analysis and reform in the Child Abuse Investigation Unit.

MR PETTIT: And you set about that?---I beg your pardon?

And you implemented some kind of review?---Yes, I did. It wasn't the only unit, as you've heard. There was a number of units there, but it was certainly a significant part of my role, particularly in the first 12 months that I was the superintendent in charge of the Personal Crime Division. One of the things that I did in relation to that was, I had my acting inspector, John Brandham, stationed down at the Child Abuse Investigation Unit and he was doing a range of things for me in relation to those issues as well as some other measures that I was taking.

Did you particularly want Mr Brandham situated physically at the Child Abuse Unit?---That was certainly my intention; absolutely.

And just tell us again your purpose in doing so?---A little bit of water had already passed under the bridge by the time I made that decision. John Brandham wasn't my acting inspector at the time I took up that appointment. I only had one acting inspector initially. But at the time, the whole agency was going through - - what they called the investigative practice review was starting to be implemented, etcetera, etcetera, and by the time John Brandham come to me as an acting inspector I'd already had - - -

WITNESS: - - - I'd already had 2½ months to have a bit of a look at what I saw to be the issues down there and when he come on board, I placed him down in that building and I'd already briefed him on several of the issues that were occurring in the area.

MR PETTIT: A formal review was instigated, too, I think?---He hadn't been there for very long before he come back to me and said that it would be - - oh, he recommended to me that we put in place a formal, independent review of the area to help identify the causal factors for some of the issues. I want to make it quite clear at this point, I'm not talking about a whole group of people down there at the Child Abuse Unit not doing their job properly. That's not my point at all, but the fact was, out of what had occurred in late May, prior to me being appointed, there was identified a major backlog in investigations. There was some 300 investigations outstanding and there was also a number of other issues that we really needed to drill down to, find out what the causal factors were, and start to put in place some better mechanisms, and if so, resources, which turned out to be also the case, to make the area function better.

Could we have a look at D1012182? The review that you spoke of: the panel members were Gary Budge, Kasey Prins and Peter Sullivan?---That is correct, yes.

The document you're about to see doesn't appear to me, at least, to have a date. Could you help us in that respect?--- Yes, it was in October 1998, and whilst that document doesn't have a date, it actually has specific things in there, like it'll demonstrate the arrest rates over the preceding 4 years and then you will see - - and you're very right, sir, in saying it doesn't have a date, but if you actually go through the document you will see it highlights things and the end date on them was October 98, because that was when they actually did the review. And the document I'm looking at, yes, is certainly the review document. That was the final document that they compiled at the end of their review. They were given eight terms of reference which basically myself and John Brandham had fleshed out, that we best believed would address the issue. It's - - the issue of independent review is not something new to me; it's something that I've instigated in other areas of command where I've been involved, and I'm trying to drill down to what's causing something happening.

And did you have briefings along the way, during this review?- --Yes, I had. I had - - certainly had one major interim briefing and that was in October, because this - - this particular review was both - - well, it was suggested, scoped, the members were selected, it was conducted, concluded and reported on all in the same month. You know, we were getting on with business and, you know, once we decided this was a good idea, we got on and had it completed.

MR PETTIT: I want to now go through the chronology of events concerning the investigation of Q2. The first one I want to go to is that you were given a memo, I think, by Mick Miller which had been written by Cristina Italiano, with a very brief outline of the investigation. It's dated the 18th of August. Do you recall the memo?---Yes, I do, and I've certainly referred to it in the last couple of weeks.

And what was your understanding of the purpose in forwarding it to you?---Perhaps that would be best if I explained the situation, in that certainly the benchmark that I set, in having my four business areas and Macro, report issues to me. It's specifically with the four business areas. They were to report to me any investigations of significance. Now, you can't draw a line in the sand with those issues. That's a situational basis, and really, that's left up to the OIC and his team to decide, well, what is an issue of significance that we need to advise our divisional officer, and I took this memorandum that I received on that date, to be exactly that. This is something that would happen, I would suggest, 15 times a month. Not from that area, but from within the four areas. I'd probably get about 15 of these, either briefing notes or memorandums a month, about significant investigations either commencing or the progress of them - - -

WITNESS: - - - progress of them, and I would provide a copy or certainly a briefing to the AC Crime and he would certainly in most cases, I would suggest, forward that on to the DC Crime - DC Operations.

MR PETTIT: In this case though I think it was yourself who passed it on to DC Operations?---That's right, and the situation was there - - was when I took up command of Macro Taskforce in April 1997 that then gave me a direct reporting role even as an inspector to the Deputy Commissioner Operations and that reporting role continued on the basis of Macro after I attended Personal Crime. At that stage Macro was still a very large investigation and, in fact, when I was first appointed to Personal Crime the first three of the first six weeks I was actually in the United States of America pursuing various strategies that we were putting in place in relation to some things that we were doing on Macro. So, you know, whilst - - as I said, I maintained command of Macro and at that stage I certainly also had a direct reporting relationship to the DC Ops.

On the occasion of your reporting to the DC Ops, which I think we are agreed was the 20th of August - - ?---That's correct.

- - you were aware, firstly, that Mr Brennan had some form of association with Q2?---Look, not to any great depth. There was no mention of it in that memorandum. It's very hard to put your mind back to exactly as it was on the 20th of August 1998 but I can assure you it was no more than perhaps I'd seen something of him being involved in a bike ride or something like that. That was about the extent of it.

Did you discuss that issue with Mr Brennan?---I certainly don't recall discussing that issue with him. I can tell you that there was a pre-arranged meeting. It was because I'd only just arrived back from the United States - I think I'd only been back in the country for about a week. I think - - I'm certain I had other officers with me for the start of that because it was about the Macro Taskforce investigation. I would've had Detective Sergeant Paul Zanetti, who travelled with me to the United States and Detective Sergeant Steve Brown, who I had instituted as operations manager on Macro with me. There would've been three of us there when we briefed Mr Brennan, and that would've been largely about the United States, and it was following that briefing I would've had probably no more than 10 - - 5 to 10 minutes with him where I would've touched on some issues and that was one of them.

Did he make any observation about it - that is, the Q2 issue? ---Nothing of significance. It was nothing more than the usual noting in support that I would get at that stage, bearing in mind it was basically saying, "There's been an investigation commenced."

MR PETTIT: Now, moving forward a little in the chronology, and you've already told us about this - you asked Detective, or Acting Detective Brandham to assume some oversight of the Child Abuse Unit, and you've told us the reasons?---That's correct.

Is there a sense in which it's correct to say that he was installed in order to report directly to you on the operation of the Child Abuse Unit?---No doubt. I mean, absolutely. Sexual Assault Squad was functioning at a level that was - - that I could see certainly in my first few months that was acceptable to me. There were a number of issues of Child Abuse Investigation Unit and, as I say, and I reiterate again, I'm not talking about people; I'm talking about processes. There was a number of issues down there that needed to be addressed and they were certainly highlighted in the October review of the area by Budge, Prins and Sullivan.

Which we can read to pick up those issues?---Absolutely.

Now, on the 21st of October Mr Brandham came to you, I think, and discussed - - -

MR PETTIT: - - - I think, and discussed the investigation of Q2?---21st of October he certainly did, yes.

And I think he told you that everything was going according to plan and that an arrest may be made?---This in fact was the first time probably that I'd heard about that investigation since August. The - - on the 21st of October basically it had got to the stage, as I recall, that they were in the throes, not - - they hadn't actually planned but they were in the - - the team I'm talking about; the team were in the throes of finalising a plan. And really, I can tell you Mr Brandham was actually sounding me out on the 21st of October about some of those issues. And my recollection of it is that those issues concerned whether he be arrested or summonsed, and about the type of media that would go with that. There had been some suggestion that there be a media conference held after he was arrested. Now, they were the primary two issues that I spoke to him about on the 21st of October.

And what view did you express on each issue?---Well, firstly I said I want a briefing note in relation to what's - - where we're at. And the second issue - - well, sorry. That was firstly what I said to him. In relation to the other two issues I certainly questioned him a bit in relation to the arrest versus summons, you know, as to what the thinking was there, and he did convey to me what the thinking was there. It was some issues in relation to the complainant that I think have already been canvassed here well enough, and I didn't disagree at that point in time with that particular issue. But in relation to the media I was absolutely against having a press conference about it. I wanted it to be handled in the normal process that we would handle any other arrest of that nature.

Shortly after that I think you took the view that you ought yourself review the file. What led you to that decision?--- There was another significant event between that and that time. It was the 26th of October I then received the briefing note that I'd been asking for in - - in - - the briefing notes in those - - at that particular time from the area were coming up in the form of memorandums, and the briefing note on the 26th of October basically outlined the situation in relation to evidence, and in relation to charges that were going to be laid, as I recall. On face value when I received that briefing note, my immediate - - and I just flicked through it initially, was that, "Yep. Sounds okay to me." That was my immediate face-value thought on it. But I did spend a fair deal of time over the next 24 to 48 hours having another look at that. One thing that I will say right now, when briefing notes hit my desk I always look at the issues in relation to adding value to them. I'm certainly not a post-box in relation to briefing notes where I just pass them on or whatever the case may be, in a chain of command. I'm always looking at what issues are here, and if I can add any value I will certainly be on the front foot about advising and that. Now, in this particular memorandum, sir, when I had a closer examination of it and then had time to think about it, I just simply was not convinced that the briefing note was telling me that we had sufficient evidence to go out and arrest this person even if he didn't say anything. And that's what the briefing note was saying to me. So specifically it was the - - within that briefing note the fact that it didn't tell me what the - - well, it certainly didn't give me confidence that there was this evidence to charge this person with these offences that happened 20 years ago. To balance that though, and it's probably why, on face value, I initially said yes, was there was - - there was actually three briefing notes. There was a covering from Sergeant - - there was a briefing note from Italiano to Miller. There was a small covering note from Miller which didn't add anything additional. It was just like, "Forwarded," or something like that. And then there was a third briefing note from John Brandham, as I recall. Now, if you look at the documents it would be - - I could confirm that, but that's how I recall it. Now, on the briefing note from Brandham to me, he said that Miller, Connoley and perhaps Ingham had all assessed the brief and thought it was a strong brief or something to that extent. So that sort of balanced it in respect of the junior officer, Italiano, who in my understanding was a constable, interviewing officer at the time she started the inquiry - - -

WITNESS: - - - started the inquiry. That balanced it a little, but nevertheless I still was not happy and certainly in the next 48 hours - - and I can't draw a line in the sand. I don't know whether it was after 36 or 37, but certainly in the next 48 hours I decided that I was going to do a review of this brief before we went ahead with an arrest.

MR PETTIT: Is that a decision you discussed - - well, prior to making that decision, did you discuss it with any of your superiors?---I didn't discuss it with anybody. I made the decision myself, and the first one I was to advise of that was Mr Brennan.

You advised Mr Brennan after you'd made the decision?--- Absolutely.

Did you advise him before or after you had sought a copy of the brief - -?---Oh, no, no.

Copy of the file?---This was before. It was before. It was all on the same day, because we're only talking about 2 days here. We're talking about the 26th of October and the 28th of October. On the afternoon of the 28th of October I again had a meeting with him and I am certain it wasn't about personal crime issues. It was about Macro issues, and that this was also tacked on the end as before. I mean, that's my - - my strong - - strong recollection of it. And I advised him that it appeared that we had sufficient evidence to arrest him on the advice I'd been given, but that I was going to conduct a review of that file.

And did he approve of that decision?---Oh, he had no problems with that. In fact, he said to me - - and this is certainly reported in my notes in relation to the meeting with Q1 that happened in December. He used the words "Leave no stone unturned in finding evidence to support the allegation." And I've got to say that's nothing new. I've been, you know, involved in many many briefings on many many major and large investigations in relation to issues both before and after this incident and they are words that have been said to me in one form or another by Mr Brennan on many many occasions.

All right. You called for the file from Mr Brandham, did you, or from Mr Miller?---I told Mr Brandham first and called for the file and it wasn't delivered to me on that day but it was - - it was delivered on the Monday, I think, or the 2nd of November, which was the original planned arrest day.

Yes, that is the evidence. And you took a week or so to review the file?---I gave them an undertaking, because - - I do recall some conversation between myself and Mr Brandham. I don't know whether it was on the day that I actually told him I was going to do the review or whether it was a telephone call later, but there was certainly some resistance to it in the business area in Child Abuse, and I'd certainly given them an undertaking that I would complete my review the next week. So that any decision to deal with this matter was only going to be delayed by 7 days at the most. 

MR PETTIT: The resistance was reported to you by Detective Senior Sergeant Miller?---No, by - - well - - no, I recall it as being by John Brandham.

And the resistance was to any delay in their plans, was it?--- It was more - - yeah, there was - - there was a couple of things that were mentioned to me about why and about, you know, wanting to get on with it because of Q1's - - you know, want to get this matter settled. It had been investigated for some time. I mean, those sorts of things in effect were the things that were said to me, but I'd made up my mind and I also think it's - - you know, people like Senior Sergeant Miller wouldn't have been used to - - I mean, I'd only just been there for a short while. I'd been away on an ADC course for several weeks. I'd been in the United States. I mean, he's probably only had a short exposure to me, plus a short exposure when he worked on Macro for a little while and you know, that's - - that's how I do business.

The association between you and him in other areas was less than happy?---Oh, no, no, not at all. In fact - - let me just give a little bit of history. The first time I ever worked - - are you talking about Sergeant Miller?

Yes?---The first time I ever worked with Sergeant Miller when he was basically - - come down to work with me on Macro for a while and he performed the job as a projects - - special projects officer for us in relation to special things that we were doing. We had a good relationship in that regard - - -

WITNESS: - - - relationship in that regard, be it that it was brief. Certainly there were some - - a number of issues from the time I took over the Child Abuse - but I mean, I certainly didn't take them as being personal issues - that were a number of issues - - and you know, there was some health issues canvassed and I really believed that was behind all of this. I don't think it was any - - anything else than that.

MR PETTIT: Right. Now, after taking a few days to review the file, I think you saw fit to contact the DPP?---Yes. I spent a few days on the file and I'd like to say something about that, if I can?

Sure?---The process that I followed in relation to that, and let me say this, and I think it's important I put it on the table, is that I have reviewed in the last 5, 6, 7 years - - I've reviewed, you know, 20 or 30 major investigations, ones that I haven't been involved in, but that I've taken a reviewing role in, and in that process - - or, this particular file was a quite small file to what I was used to. The most time-consuming part of my analysis of the evidence and the brief was the working through the diaries of Q1. I worked - - I read every diary and I correlated the deposition given by Q1 to every corresponding entry in the diary, and that was probably the longest thing. The depositions and the medical reports and the other issues didn't take me that long really.

That is extraordinary for a superintendent to embark upon, wouldn't you agree?---No, not in my case. I had been appointed as a superintendent, the youngest superintendent in the police service. I have a significant background in major investigations, and if you look at my 6 years as a commissioned officer, there's - - I don't think any other superintendent's been given the operational command roles that I've been given. I mean, it's just been a fact, and my view on that matter is, and I know others have different views - - my views on that matter is, is that if I can add value to anything, because of my experience and background, I will not hesitate to add it, whether I'm a superintendent or a sergeant or a senior constable, or whatever the case may be. And you know, the fact was, I had - - let me tell you, people like Mr Brandham would have had a hundred things on his plate because of things that I'd delegated him to do, and so would everyone else that's working for me and sometimes I make a decision I'll do that. I know I'll knock that over in 2 or 3 days; I'll spend the extra time doing it, and the job's done.

In your opinion, does an officer require experience specifically in child abuse cases in order to be able to properly assess the evidence in such a file?---Absolutely not. I found this one of the most simplistic investigations I've ever reviewed, in respect of that review. You know, I - - myself, the time that I - - 18 years as a detective investigator, 9 years in Major Crime; I've been sent to North America for stints in relation to investigative training; I've been sent to the Eastern States. I lecture on investigative training. I've been asked to go to the Management of Serious Crime Courses, to lecture on investigative training. I have duxed every single investigative detective course that I've done in my career. I am a prolific reader in furthering my investigative knowledge. This was a very simple brief for me to review, because additionally, the first thing you had to work out with this particular inquiry was: was there corroboration or not? If you found with these offences, particularly the ones over 20 years old, it had become a very simplistic matter. First, if there's no support, if there's no corroboration in relation to those offences, that's the first test. If it doesn't pass that test, it's not going any further. Having said that, I gave it all tests. It actually becomes more tricky once any admissions have been made. Then it becomes tricky because once you get admissions, once you get corroboration, then you have to take in factors like consent, you have to take into factors like the different statute law that applied, and you have to take into factors the age of the complainant at the various times, etcetera, etcetera. That actually becomes a little bit more tricky after that. And I applied all tests, but certainly the first test was the support.

MR PETTIT: Did you have a working knowledge of legislative changes over the last couple of decades?---Oh, reasonable. I mean, in respect of knowing every single one of them, I certainly wouldn't have known that, but look, that did not impede me one iota in relation to what I was doing. Because it didn't pass the first test anyway - - -

WITNESS: - - - the first test anyway.

MR PETTIT: In any event, you had perhaps not complete confidence because you did seek the advice of the DPP?--- Absolutely. I want to say a bit about that too. I did that because of the issue you just said. Not - - actually, complete confidence is not the word, but because it was a historic child abuse matter, but also because this investigative team had told me that they thought there was a brief, and that was a little concerning to me. And they put a lot of work and commitment into this, and I knew it was going to be disappointing to them and disappointing to Q1. I sought the advice of Ms Evelyn Vickers.

Yes. You'd known her from previous advices or was this the first time you'd met her?---No. No. I'd known her for some time. Not - - I mean, I can't tell you exactly when I met her, but obviously in the field that I've worked, I've worked with the DPP a lot in various investigations. So I certainly knew her to pick up the phone and ring her.

This area was something of a specialty of hers?---Absolutely. I mean, I will put this on the table now. She would be the foremost expert in Western Australia on sexual prosecutions of this nature, in my opinion.

You left the matter with her for some time?---I went over and spoke to her. I spoke to her on the phone. We had some discussion. I don't know what the extent of that was on the phone. I took the brief over and went and met with Ms Vickers. I found out in that meeting that she'd actually spoken to - - and I didn't know who at that stage but she told me that members of the Child Abuse Investigation Unit had spoken to her without telling her the name of the person, and this had just been a very recent thing. She'd been told some things that I'd actually been told along the way, and certainly were contained in briefing notes. And a couple of those things were that - - one, that the diaries corroborated, supported - - and I use "corroborated, supported" because it's a little bit less than corroboration in those sort of matters. The events. That was one major issue. The other major issue is that there was an alleged confession in some statements that were made by Q2 to Q1's mother. And what I will tell you on that is that I don't even think there's a veiled admission in that. And I'm not saying and suggesting anything about the veracity of what the complainant's had to say, or suggesting anything other than, as far as evidence goes, my assessment of it was at best it could be argued that there may be some sort of veiled admission to something in there, let alone the offences that were intended to be charged with.

And as to the diaries, what was your conclusion?---The diaries supported very strongly that there was a relationship in respect of friendship between the families and - - and Q1 and Q2, but the significant issues were, one, they didn't particularise any of the offences. There was no particularisation at all in the diaries that - - that I found. Secondly was that in some of the cases there were some entries that were actually contrary. I've been - - heard the word "damned", "damning". I wouldn't use that word "damning" but they were contrary in respect, and one - - I mean, one example I remember, it was about a confrontational situation and basically it said it was good to see Q2 and - - and blah, blah, blah. It was quite contrary to the deposition. So first and foremost it wasn't particularised, and secondly there were some entries that were contrary to what the complainant was saying. And again, I have an understanding of behavioural dynamics of these sort of issues and I'm not suggesting it's any more than those behavioural dynamics - - I'm not saying anything about the veracity of what Q1 said.

MR PETTIT: And I think there was also - - we've heard evidence - perhaps you can add your view - in respect of a DPP policy about - - ?---Yes.

- - older prosecutions from 20 years or more ago. Is that something - - ?---This is - -

Sorry. Go ahead?---I think this is where - - an area where there's a little bit been confused as well, because, yes; there's a policy certainly in place, as I was aware and been told, that 20 years plus offences need to be supported/corroborated. Where I think when some people say, "Well, there are offences that go ahead on less," it's to deal with recency. It's a big issue in this. If - - if this was a young girl who'd come forward and it had happened a week ago it would be a far different story than someone telling us about something that happened 20 years ago - - -

WITNESS: - - - happened 20 years ago, and that's a big issue in this, in relation to this matter.

MR PETTIT: In any event, I think - it's Ms Vicker, I might add too, without an "s" - - but she gave you her view? ---Not immediately, of course. She certainly took charge of the evidence. I think it was within 24 to 48 hours that she got back to me with a response in relation to that matter and basically - - I can't remember exactly what she said but she certainly concurred with my findings in relation to - - and my analysis of the brief.

From then you called - - well, perhaps you should tell us. What did you do upon receipt of her advice?---Upon receipt of her advice I then obviously turned my mind to the team. I asked Inspector Brandham to arrange a meeting between myself - - I wanted the key players in the team that had been involved there, and it was - - a meeting was arranged for the 10th of November and that was between myself, Detective Senior Sergeant Miller, Detective Italiano, as it was then, and I had Inspector Brandham, and Wibberley was there as well. I think he was my acting inspector at the time as well. My other - - from my other side of the division.

Yes. He actually had nothing to do with these events, did he?---No. Not that I recall, no. He was certainly present at that meeting. Can I say I knew this would not be well received. I specifically requested I wanted my inspectors there. I knew that what I was going to tell Senior Sergeant Miller and Detective Italiano was not going to be well received.

Is that why Mr Wibberley was there?---Absolutely.

And you related your view and related to them that you had sought the view of Ms Vicker and you issued an instruction? ---Yes. There was some other discussion in that meeting but - - do you want to know about that or you're not - -

Well, not at the moment?---Okay.

The instruction you will have heard - - you've been in the hearing room since the outset and you will have heard various versions of it and various interpretations of it. What did you intend to order?---Well, let me just say right up front, at no stage did I say or have effect to my instructions to being that if this person confessed he was never going to be charged. I mean, that's absolutely ridiculous. What I put forward was that I was not prepared to hand full carriage back to these people, to the team, in relation to this matter. I instructed that he needed to be interviewed. I did discuss with them at some length as to what other avenues have we got to get information, and I know that there were a number of discussions in relation to that - as to, you know, "We can't go here because he'll tell him" and etcetera, etcetera. There was a confidentiality issue in going out into the community, etcetera, but I certainly then said, "Go ahead in relation to the interview, but nothing is to be done in relation to charging this person until I've had a chance to reassess the evidence. There is no question that that was something that I put forward. As a senior manager when I had identified the deficiencies and what was going to occur it would have been absolutely wrong of me then to hand full carriage back immediately to the team who basically, it was quite obvious, disagreed in relation to my assessment and that of Miss Vicker.

MR PETTIT: Is there something else you want to tell us about that meeting?---Yes. In that meeting there was - - there were a couple of things about that meeting. One, I questioned Sergeant Miller and Detective Italiano about the diaries at quite some length, because when you look at the briefing notes and you look at what I'd been told and then you look at those diaries, I'm afraid they do not corroborate the complainant in respect of the particularisation of the offences. Both admitted to me that they had not read the diaries closely - -

WITNESS: - - - read the diaries closely. Both admitted that. Both admitted to me that they were not aware of the DPP policy in relation to the 20 years. We had some significant discussion in relation to Q2's conversation, alleged confession with Q1's mother, and I was astounded to - - to see that that could even be termed as a confession and be relied upon, and we also - - after that meeting I also asked Sergeant Miller to - - to remain back and one on one I counselled Senior Sergeant Miller in relation to this issue. My primary concern was there that this matter had gone so far and we were on the eve of going out and arresting this person and there was insufficient evidence to charge him, and the offences would not have been prosecuted by the DPP. I asked him to immediately take measures and put checks and balances in place so this didn't happen again, and that's all about checking and supervision.

MR PETTIT: You don't resile from the suggestion made that your orders would stand - that is, no charge, you to reassess the evidence - even in the event that Q2 confessed or made admissions?---As I pointed out, one of the main talking points that we had in relation to this is, what amounts to a confession? What amounts to an admission? Because all the time in the memorandum it talks about "a confession" and we haven't even spoken about admission. See, I believe that this person could have been charged if he'd have made some admissions, let alone a confession, but the fact is - - is that I was not confident at that point in time that it would be objectively assessed as to what he did say, and I wanted to have a hand in assessing that. Now, on that basis that business would have been done within a couple of days. I would say, on the absolute outside, if we had to involve the DPP again, 7 days. If he did make a full and open confession it could have been - - could have been dealt with on that day because, as I say, I reassessed the evidence. If I get a phone call from Inspector John Brandham and he says "Oh, he's just gone the whole hog. He's admitted to everything" etcetera, etcetera, probably the only issue I would then still want to really draw down to is the statute issues and things like that. That would be the main principle of getting that right, because the first memorandum put up to me on the - - not the first memorandum but the memorandum put up to me on the 26th of October talked about 12 to 14 offences. If you look at the chronology of documents after that, you will see very quickly that went down to 5 offences even when they still believed he should have been charged. So there was many offences there that were statute barred when that was put up to me. So that bridge hadn't even been crossed. So I wanted a hand in this. I was not prepared to leave full carriage back with the investigation team at that stage.

MR PETTIT: Have there been other occasions in your experience when you've either ordered or participated - - that a person not be charged following an interview, even if admissions are made?---Oh, many times in the work that I do. I'm involved and have been involved for 9 years in the real upper end of major crime. I would suggest I've been involved, in that time, in over 80 of the state's most major investigations, including the two biggest investigations conducted in the last 20 years in this state, and that is not uncommon at the level that I'm working that you would do that. When we talk about admissions and confessions, I mean, you have got a huge range there, you know. The word "confession" keeps on getting used. I would have been happy if we'd have got some admissions. Some admissions would have taken us to court perhaps, depending on what actions those admissions were about.

You were aware that Q2 was to be interviewed shortly after that?---Yes.

Did you issue any instruction to Mr Brandham to attend?---Yes. I asked - - I actually gave a couple of instructions to Mr Brandham after that meeting. One was, I wanted him to have some oversight in relation to the actual operational plan of doing it all. So I wanted him to have some involvement in that, and secondly, I wanted him around on the day; not to do anything in particular, more of a troubleshooter. And Inspector Brandham and I have worked together enough to - - you know, I didn't have to actually drill down and say "I want you to do A to Z." He's a very experienced officer. Just sending him, just him being there, I knew that he could add value.

You received a report, I think, of the outcome of the interview?---Yes, I did; verbal, I believe, initially.

From John Brandham?---John Brandham, yes.

And did you offer any advice or give any instructions after that?---Yes. I mean, it was, "Well, let's get on with it. Let's complete the investigation. Let's do all the avenues now that they've been talking about and that we haven't pursued, and also make sure that the complainant is advised and in the loop of what's occurred" and that includes what's occurred in relation to what I had - - my actions and also the actions of the DPP, which was something that was quite disturbing, because when I later had a meeting with Q1 she didn't know about those two issues - - -

WITNESS: - - - didn't know about those two issues.

MR PETTIT: Is there anything of significance that occurred between that day, the 17th, and the time you were advised Q1 had made - - had written to the Commissioner of Police?---Not that I can recall at this point of - -

All right. I might come back to that in a moment, but in any event, I think Mr Atherton contacted you to say that a letter had been received?---I'm not actually sure whether I heard it from Mr Atherton. I think Sergeant Miller might have told me, because a copy of that letter was cc'd to him, or to the officer in charge of the Child Abuse Investigation Unit.

In any event, Mr Atherton did contact you?---Yes.

And asked you to arrange a meeting?---Yes. Yes, he did.

Was there some urgency about that?---I would have treated it as an immediate thing to do. I don't know that he gave me any urgency about it, but I certainly would - - I mean, I had seen the letter and I would deal with that immediately. I mean, you will notice, with every document that's been tendered in this evidence, that everything that has hit my desk has been dealt with in one or two days, if I was able to do that.

You appear to have requested from officers concerned a report of the events?---That was after the complaint had been received.

Yes?---Because - - and those memorandums were in relation to, of course now, the complaint by Q1. I requested a report from all of the officers who had involvement in relation to Q1's complaint and the investigation into Q2, and those memorandums were about putting together a - - basically what was a complaint file.

Both Mr Brandham and Ms Italiano seemed not sure what were the purposes of their reports. You heard that evidence?---Yes, and I mean, I can only put that down to their memory, but I know absolutely what they were for. The complaint was received on the 7th of December. I think you'll find the first of the reports for those was dated the 8th of December. So, you've got nothing between that period there, other than some correspondence between Miller and Italiano. The first time I've called for a report is basically after the complaint has been received.

You've heard also the evidence from Q1 that there was a degree - - you phoned Q1 to organise a meeting?---I - - it's - - yeah, very possible that I did that, yes.

Yes, and you heard her evidence that she felt there was some inexplicable urgency in your request?---That's her  interpretation. Yes, I've certainly heard that, yeah. And let me say this, I mean - - I mean, you've already heard the responsibilities at that time. I had four business areas that were the highest end of Major Crime, plus I had command of the Macro Taskforce. You know, my business is certainly about getting on with business, so yeah, I could have certainly given the impression that it was urgent.

MR PETTIT: She and her husband attended - -?---Yes, they did. - - the meeting with you and Mr Atherton; you explained the nature of the investigation, as you then understood it?--- Primarily, my discussions in that were all about going through from A to Z what happened with the case. There had been allegations made in that letter, in relation to interference and Mr Brennan's name had been mentioned. Now, Mr Brennan was certainly mentioned in that meeting that I had with Q1 and Mr Atherton. My role primarily, and what I spent a lot of time talking about, is her deposition, about the alleged confession to the mother - - -

WITNESS: - - - to the mother, about the diaries and explaining things about my review, about Evelyn Vicker and her second opinion, and they were the primary things I spoke about. Mr Atherton's role was more so, sort of, talking about, sort of, just corporate issues in relation to it and, you know, the niceties of the situation and all that sort of thing. I don't detract from his role but I'm just saying I was the one who had the knowledge of the investigation file.

MR PETTIT: And she and her husband left at the end of that meeting, and how would you describe the understanding reached when she had departed?---Absolutely at that meeting she - - had said at that meeting that she wished - - or has expressed a desire that the complaint go no further during the meeting. I - - I - -

That's the complaint of police - - ?---Complaint against police. Complaint against police, yes. A couple of things. One, up until that meeting she did not know about my review of the investigation and she did not know about the second opinion I obtained from Evelyn Vicker, and I was quite disappointed that she didn't know those two issues because I see them as being extremely important in the context of her perception. When she walked out the door it wasn't with the withdrawn complaint. Mr Atherton gave her a cooling off period in relation to that issue. He wouldn't let her withdraw her complaint at that point and I think that was a very wise thing to do, and it was on the understanding that she get back to us. Now, I don't remember a time frame being attached to actually - - for the complainant, or for Q1, to get back to us but I do know that she was to get back to us and let us know about that.

Since you have been sitting in the hearing room throughout you will have heard the questions I directed at Mr Atherton - - ? ---Yes.

- - on this score?---Yes.

And to repeat them, or repeat it, the crux of Q1's complaint, and perhaps I'm articulating it now in a way which it wasn't at the time - - ?---Mm.

- - is that there was an association between Mr Brennan and Q2, there was a perhaps dramatic, certainly unexpected, interruption of the interview upon which her hopes were pinned - - ?---Yes.

- - so that the advice of the DPP was neither here nor there because the crux of her complaint was there should have been, and, were it not for the interference, would have been more evidence?---I mean, I saw it much broader than that. I - - I mean, basically when you look at my actions on that particular day of the meeting with Q1 and her husband - - I went through the whole box and dice. We spoke about all of the issues in relation to that matter and that would have gone from everything from the interview being stopped right through to the potential that Mr Brennan might have contacted any person in relation to this matter. I mean, that was all canvassed in that meeting.

MR PETTIT: That issue, the possibility that Mr Brennan had contacted Q2, was specifically discussed?---That anyone contacted the person or that he had any notice. It was discussed. I don't know at what length or depth but every - - Mr Brennan's name was mentioned in the letter, you know, and the fact that he could have been - - and I think it was in the letter also, if I recall rightly, that the officers had said that he was expecting them. How could we not discuss it in that meeting? I mean, it was all discussed in that meeting.

I think Q1's evidence - I may be corrected on this but I think Q1's evidence - was that it was not discussed?---I mean, I can't really deal with that, sir. I mean, in my recollection, it was all discussed in that meeting.

Not something you deliberately avoided because of the sensitivity of dealing with a superior officer of yours? ---Absolutely not.

She and her husband left with the understanding you've explained and you heard no more for 4 weeks or so?---It was about six to seven weeks and I hadn't heard anything. I didn't sit on my hands. I, as you know, on that same day as the meeting with Q1 - or even the day before, perhaps I'd already started - I was already calling for reports, I was already receiving reports in relation to the matter. I know some of the reports I didn't get until January because of leave situations and that, but I was already doing the standard procedure in relation to calling for reports and getting everyone's information on it, so the file was being collated because even if - - at the end of the day if Q1 had have withdrawn her complaint at that time I still would have forwarded a file to Professional Standards to record this matter with all the reports. The other issue is I would have looked through all those reports and made some recommendations of my own in relation to the matter - - -

WITNESS: - - - in relation to the matter, bearing in mind there was no allegations about me at that point in time, and there was no suggestion that I'd acted improperly. So I was - - you know, I was - - I was already in the process of doing that. Whether she'd made a complaint, gone through with the complaint or not, that file would have been forwarded on; maybe not for investigation. It would have been with a recommendation that it be - - any action that I recommended be taken plus then it would be filed.

MR PETTIT: Yes. I was going to ask you about that. There was no - - I take it on the 8th there was no intimation by any person that you had acted improperly?---No.

Can you tell us when was the first time you were aware that such an implication had been made by anybody?---I went to the ACC over this matter, but I don't ever remember than an - - I'm not ever remembering whether there was an allegation made directly about me, or whether I was more so being questioned about Detective - - sorry; about Deputy Commissioner Brennan, so I'm unclear on that matter. But I - - I think the first time I heard that there was an allegation about me was corridor whispers in relation to this matter. Because I think, as has been affected to, there's been corridor whispers about this matter for the last number of years, and there's certainly been a number of media people buzzing around the box trying to make a scandal out of it, which of course, as it's turned out - -

COMMISSIONER: Where were the corridor whispers?---Look, I can't put it to any particular person, but certainly within the police service.

Yes?---And - - and there was media contacts. There's a media contact - they were looked at about 2 weeks ago - that dates back to perhaps 1997 where I think a reporter from The West has made - - asked certain questions about it. Something like that.

MR PETTIT: One issue I haven't dealt with yet in my attempts to deal with it chronologically was that I think you became aware around about 8th or 9th of December that Ms Italiano had prepared a memo, dated 25th of August, in which she outlined her information about a meeting attended by Commissioner Brennan - - Deputy Commissioner Brennan. Now, that was forwarded to you by Detective Sergeant Miller, and I think you were more than irritated about its late arrival. What did you do about that?---I'll just correct something I said. I said 1997. Of course that was before? - -

COMMISSIONER: Yes?---I'm sorry, Commissioner. Obviously 99, 2000. I don't know. Okay. In relation to that issue, yes. Now, they report that on the 8th of December I asked Senior Sergeant Miller for a full report in relation to his involvement, actions, management, etcetera, in relation to the inquiry. Now, this is in relation to the complaint by Q1, so this is not a memorandum for the investigation. It's a memorandum for the complaint investigation. I received that memorandum and it did not answer some questions that I wanted answered, which were things like, "Okay. Where are we going with this file?" and there's another memorandum I sent back to him to say, "What investigations have we got left? Why haven't we done them?" etcetera, etcetera. On the day that I sent that out I also received another two memorandums; one from Miller with a memorandum that you talk about, August 25, attached to it, and one from Brandham on top of that, giving me a bit of an explanation about it. Senior Sergeant Miller put on his that because I'd asked for this other report he now felt obliged to tell me about the allegations/perception that had been created at August 25, 1998, some 3½ months previous. And this was - - this wasn't received by me until a couple of days after I'd spoken to Q1 and Q2 - - Q1 and her husband. Yes; irritated is a - - is a good word to use to describe how I felt about that. I believe this is a - - was a significant issue. It explained a lot of things to me. It - - it started to answer the questions - - -

WITNESS: - - - to answer the questions to me why perhaps people like Q1 hadn't been told about my review and about the DPP second opinion. It was basically telling me that there had been a perception on behalf of the complainant and a perception on behalf of Constable Italiano, at the very least, that Mr Brennan would have some impropriety in relation to this matter. And when you balance that with the fact that - - then this investigation, basically as has already been canvassed, Detective Sergeant Miller kept that between the two of them, the investigation continues with these concerns not addressed. Then you have a situation where basically the junior officer, Detective Italiano, is told that she's got a good brief and we're going to go in and arrest this person and we're going to charge him with 12 to 14 offences and everything's a hundred mile an hour go, and then just before that's about to happen, I, as a superintendent, say, "I want to review the file", and then after my review of the file, after she's been told by those other officers that there is evidence there, that I come back and say there is no evidence, that I can - - it's like a snowball effect. And I was - - yes, I was very irate that I wasn't aware of this because there would have been additional actions that I would have taken for transparency, had I been aware that this significant perception existed between the complainant and Detective Italiano. I fired an immediate memorandum back to Mr Miller and I've asked him four? very specific questions about what actions he did with that particular memorandum, because I certainly have a view as to what should have happened about it.

MR PETTIT: Just in passing, Mr Caporn, I should ask you to have a look at D1012890. Is this the memo you mentioned earlier, by which you sought reports from each of the officers concerned?---No. This is the memorandum that I sent to - - no. These are the issues that were canvassed - - I'm - - I'm almost certain that the - - this was sent by me after I'd received the first memorandum from Senior Sergeant Miller concerning the complaint. So, what I'm saying is this; I've asked for - - just verbally asked for memorandums from everyone. Senior Sergeant Miller's was one of the first ones that was in, but it didn't answer - - and this is before I've received the August 25 memorandum, but this, his memorandum that gave me his overview of involvement, didn't answer these three very important questions about the inquiry, and that is, what investigations have been conducted to further it; are thee any avenues of inquiry that have not been pursued, and if so, why not; and if inquiries had been exhausted, what action is now recommended? It must be remembered that now we've already travelled another 3½ weeks since the interview, so I'm basically saying here "In your previous report, you haven't given me this information and I want that information because that's a part of this. I want to know where this file's going". It was after this went out that I, at the same time, almost simultaneously got the other one in relation to, "I'm obliged to give you this, that, and have them back on August 25."

MR PETTIT: The 25th of August, yes?---Yeah.

After the five or six weeks had expired from the meeting of the 8th of December, you telephoned Q1?---Yes, I did.

Of your own accord?---Yes, I did.

And said, what?---Well - -

Well, first of all, how many phone calls did you make?---I remember it was more than one. I mean, the situation was this; the - - I had pretty much got all the reports in by that time. I mean, I'd had them well and truly, you know, had them well and truly in by that time. I had let Christmas go by - - -

WITNESS: - - - Christmas go by. I still had not heard in relation to the final decision that Q1 wanted to make in relation to this matter. If it had have been about another issue I would have been on a phone a lot quicker than that but because of the sensitivity of the whole issue I left it until about the 19th of January, that I recall, to make my first phone call in relation to the matter. The only real recollection I have of it is that I did not get an answer in one phone call. That's basically - - but when I say "the only recollection", that's - - as to whether it was one or two or three or four I don't know. I remember leaving a message on an answering machine at some stage. What I do certainly remember is that my only canvass in relation to this inquiry with Q1 was, "What is your decision in relation to this?" and we would have certainly discussed the fact that I am sitting on this, basically, complaint against the deputy commissioner. You know, I've got to deal with this issue. Now, as I say, I would have sent it to professional standards anyway but do I send it to them with the recommendations to forward this inquiry or deal with this inquiry by way of ACC or whatever? Or do I send a recommendation to say, "I've done this. This is what my findings were" and etcetera, because, as you will see in my report, I actually have done a comprehensive report and given them my thoughts and findings and also made two very important recommendations.

MR PETTIT: Q1 says that in your last telephone call you were pressing her in some way. Is that your recollection of it? ---Look, it is possible that I could be perceived as pressing her, not in a - - I could be perceived as anything. Anyone could be perceived as anything. I'll get this right. I was certainly chasing a decision, you know. I had a very busy position. I had been sitting on that file for some time, and I was certainly chasing a decision. Absolutely no way I was chasing, "I want you to withdraw this complaint" or anything like - - no way in the world. I had already done the file. It was all ready to go. If you look at when I got that letter from (...name suppressed...), I think that letter was sent on the 1st of February to me, so I don't think the relationship was too bad; but it was sent to me on the 1st of February so I wouldn't have received it on the 1st of February but you will notice that my comprehensive report and 21 attachments is finished by the 4th of February and off and gone. So, you know, if you don't operate like that in doing the job that I do you will drown.

And you received a letter from Q1 early February and, really, is there anything more to your account of events after that that we should know about? The matter was referred to professional standards?---Yes. The 4th of February my report went off. It was referred to professional standards. I certainly was called in by the ACC.

MR PETTIT: They in turn made the decision to send it to the ACC?---Yes.

The ACC contacted you - - ?---Yes.

- - to come and give them evidence?---Yes.

Which you did?---I certainly gave them evidence, yes.

Just finally, when Detective Italiano returned from leave she was to prepare a report, submit it to you personally, which she did, and you also had a conversation with her?---Yes, I did.

Did you request a conversation with her?---Yes. I - - I can't remember exactly requesting it but I would have wanted to have had a conversation with her.

Why?---Well, the first thing I - - as I said to you, when I received that August 25 memorandum in December it answered a lot of questions for me in relation to certain issues. I wanted to sit Detective Italiano down and go through the whole process and make sure that she was satisfied. I've heard the word "transparent" mentioned many times and I've used it. I do use that all the time. I like - - I want things - - I know I need things to be transparent in relation to what I do and I wanted to make it clear on a number of points that I didn't get that memorandum and what I felt should have happened with the memorandum - if it had have been brought to my attention what would have happened with it. There were issues like the fact that she hadn't advised Q1 of my review or the independent assessment by the DPP, instead advising, "Oh, go to the Ombudsman or the ACC", which - - -

WITNESS: " - - - or the ACC", which, you know, to me, I would like - - I've no problems about persons being given those options, but I believe that she also should have been given these very important facts about her case and what was done by a senior officer and the oversight by the DPP, because it gives a far more complete picture, I think, as we've already heard in Q1's evidence when she did meet with myself and Mr Atherton. And I mean, I - - I've - - well, I recorded in my February 4 report. I had absolutely no doubt that Detective Italiano felt that there was intervention. I recorded it in my report of February 4. I asked her direct questions about it. I did my level very best to get her to put it on the table so we could deal with it, which she didn't do. Now, hearing her assertions, I probably have a better understanding as to why she didn't.

MR PETTIT: The letter from Q1 and Detective Italiano's report to you and all other reports received by you, fail to make any mention adverse to yourself?---That's right.

Why did you ask Ms Italiano whether she thought you were corrupt?---No.

Well, first of all, did you ask that?---No, I did not. Absolutely not.

You've heard her evidence that you did?---I don't know that she said that, actually.

Well, perhaps I'm wrong?---Oh, she said in this proceedings that I'm corrupt, but I don't think she actually said that, that I asked her if I was corrupt. I asked her if anyone was corrupt, and I think that was what she said. If anyone was corrupt in this matter, or something. And that's what certainly I've seen on the running sheet as well, since I've reviewed the running sheet.

Yes. I apologise. I think you could be right about that?--- Yeah.

And did she offer an explanation to you, whether she thought any person was corrupt?---I could not get her to put it on the table and I detailed that in that February 4 report. I've certainly detailed that I felt that - - that she believed there'd been some intervention, that I certainly had seen no evidence of intervention in relation to the matter, but that she still harboured it. And the other thing I mention, and I still believe this today, although I have even more of an insight after sitting in this proceedings, I still believe that the non-action on the August 25 memorandum had an impact on this whole event. I believe if that had have been dealt with in a transparent way, if that had have been - - right, put it on the table, let's investigate this. Let's test this information, in August 25, and either blow it in or blow it out of the water, then I think that the complainant would have been happier and I believe that Detective Italiano would have been happier, and I certainly would have been happier; and you will note that the day I received that report, and I don't think there's any other terms you can put it, that Mr Miller got that rocket from me in relation to this issue, and you will also see in my February 4 report that I recommended that he receive a formal counselling for not dealing with the August 25 memorandum.

MR PETTIT: Did you say to Ms Italiano in that conference in January something to the effect that you would have lost your position or your job?---Yes. There was certainly something like that. We've spent some time talking around a whole lot of issues. One of the - - all pertaining to this, of course. One of the other issues that I went at length to her to explain was the brief, the evidence, the consequences of charging people with offences that are going to be nolle, and I made some comment like, "I'd be looking for a new job if you'd have put this one through. If I hadn't have done my review, if I had have let you go out and arrest this person, I'd be looking for a new job", you know? And it was in that context, in respect of, you know, nothing to do with the deputy commissioner or the commissioner. I'm talking about the consequences of a superintendent allowing something like that to go through to the keeper, when I should be having - - if I don't do it myself, certainly having the checks and balances in place that we don't make mistakes like that.

Thank you.

COMMISSIONER: Yes. Mr Hammond?

CROSS-EXAMINED BY MR HAMMOND:

MR HAMMOND: Superintendent Caporn, is it the case that Deputy Commissioner Brennan told you to leave no stone unturned in the investigation of Q2?---Yes, it is. In finding evidence. I don't know if he said the words, "investigation in finding evidence."

In finding evidence?---Mm.

And have you familiarised yourself with the file of Q2?--- Well, I certainly did a review of the brief of evidence.

You've conducted an extensive review, haven't you?---Of the brief of evidence, absolutely.

And even for the purposes of coming here today to testify - - -

MR HAMMOND: - - - to testify?---I've certainly had a look at all the memorandums and all those other issues; absolutely.

And you would be aware then that Detective Italiano sought approval to travel to the eastern states to visit a possible second complainant?---I have no knowledge of that whatsoever. I do have knowledge of a memorandum, and there's a couple of memorandums that I've seen of Detective Italiano wanting to travel to the eastern states to interview a psychologist, but I have no knowledge of her wanting to travel and see a second complainant. Not at all.

So you did see a memorandum where Detective Italiano sought approval to go over to the eastern states to interview a psychologist?---Yeah. But I saw it about 3 weeks ago. I also saw a covering memorandum on that from Sergeant Miller giving her an alternative action as to he believed that she should do with that - -

And are you aware that in your review of the file now that Detective Italiano was refused permission to attend on the psychologist and to attend on the possible second complainant?---I know nothing about the second complainant. I've already put that on the table. But I'm certainly aware that - - and this was only been aware 3 weeks ago when I looked at memorandums in relation to it, because that's not what I reviewed in my brief of evidence. But I'm certainly aware of a memorandum from Detective Italiano to - - might have been directed to Sergeant Miller, but there was also a handwritten memorandum from Sergeant Miller saying that he had exhausted the budget or - - sorry; they had exhausted their budget and that he believed this could be dealt with by telephone, and he recommended that if need be that he would - - he would talk to the person themselves.

I'm wondering if - -

WITNESS: I think also there's a - -

MR HAMMOND: - - memorandum D1012278 can be called up.

WITNESS: I think there's also some sort of corresponding entry on the running sheet about that somewhere.

MR PETTIT: You'll have to bring that up in restricted fashion. You have a copy of it.

MR HAMMOND: I do, but it's probably not in the - - I only have one copy.

MR PETTIT: As long as you've got a copy

MR HAMMOND: Yes. Thank you.

(TO WITNESS): Do you have the memorandum?---Yep.

MR HAMMOND: Yep. And do you recall reading this memorandum before?---I'm not sure whether this is it. I mean, certainly this memorandum and certainly the discussion of the psychologist, whether it be 2 weeks or 3 weeks ago, but 2 weeks ago when I've looked at the - - gone to have a look at the memorandums on the file is the first time I've seen this. I'm not sure whether this is the exact one, but the one that I saw also had a handwritten memorandum on top of it from Sergeant Miller back to - - to Italiano, giving her a direction in relation to the matter.

In 1998 when you were extensively supervising this matter, you would have been aware of this request to visit the possible second complainant?---Let's clarify your "extensively supervising". First thing, I wasn't aware of this at all. At all. At all. I was not aware of this. I also note on the file that at the time this happened, when I had a look at this a couple of weeks ago, that at the time that this particular event occurred and that Sergeant Miller gave her direction to deal with issues by phone, I also note that I was on officer development course during the entire period of those memorandums. And I also note that they never went to the divisional office. They were contained within the Child Abuse Investigation Unit.

So you didn't see these memorandums when you were extensively reviewing the diaries, for instance?---What would the memorandums be doing in the diaries?

I'm not saying that they were with the diaries, but you didn't have access to these memorandums in October or November 1998?- --I reviewed the brief of evidence. I didn't review memorandums. I reviewed depositions, medical reports and diaries.

So if you weren't reviewing the memorandums you wouldn't have had much of an idea of what the officers were saying in relation to this case?---How can you say that - - -

WITNESS: - - - you say that?

MR HAMMOND: Well, you were unaware, for example, that a request was made to travel to the eastern states to visit a possible second complainant?---Yeah, but that's a quantum leap to say - - I mean, I reviewed all the brief of evidence. Memorandums - - my job, when I decided to do the review, was to review - -

I'm not asking you about your job. I just asked - -?---Okay.

- - were you aware of the request by Constable Italiano to visit a possible second complainant - -?---I - -

- - in December 1998?---And I've already answered that.

And the answer is "No"?---That's right.

Were you aware in December 1998 that Constable Italiano wanted to visit a psychologist who resided in New South Wales?---I was review - - I was aware a couple of weeks ago about that one particular -

You weren't aware in 1998?---No, I was not.

December 1998. And you weren't aware, were you, that in relation to both of those matters Constable Italiano's application to go to the east had been refused?---No, I was not aware of that.

COMMISSIONER: Would that be a convenient time, Mr Hammond?

MR HAMMOND: Yes. Thank you, sir.

COMMISSIONER: We'll adjourn until - -

MR PETTIT: Commissioner, until when? Tomorrow morning, or till Monday?

COMMISSIONER: Monday. Monday morning at 9.45.

MR HAMMOND: If it please you, Mr Commissioner.

WITNESS WITHDREWAT 4.03 PM HEARING ADJOURNED UNTIL 9.45 AM MONDAY, 16TH SEPTEMBER 2002

.12/09/2002 CAPORN, D.J. XXN


MR PETTIT: I call David John Caporn.

 COMMISSIONER: Could I have your full name, please, Mr Caporn?

 MR CAPORN: David John Caporn.

COMMISSIONER: Do you have any objection - - conscientious objection to taking an oath on the Bible?


 

https://www.slp.wa.gov.au/publications/publications.nsf/DocByAgency/04E2DAF2F53EFBDC48256C32003886E2/$file/S020912.pdf

 

 

https://www.slp.wa.gov.au/publications/publications.nsf/DocByAgency/FCF7B2E86660459B48256C3600220120/$file/S020916.pdf

 

ROYAL COMMISSION INTO WHETHER THERE HAS BEEN ANY CORRUPT OR CRIMINAL CONDUCT BY WESTERN AUSTRALIAN POLICE OFFICERS

COMMISSIONER: G.A. Kennedy AO QC

Held at Perth on the 16th day of September, 2002

Counsel Assisting

Mr K. Pettit SC

Appearances Mr J.C. Hammond (with him Ms J. Pepe)

Mr A.J. Power

Mr W.M. Bryant

AT 9.47 AM HEARING COMMENCED:

COMMISSIONER: Yes, Mr Hammond?

MR HAMMOND: Thank you, sir.

DAVID JOHN CAPORN: CROSS-EXAMINED BY MR HAMMOND (Continuing):

 MR HAMMOND: Superintendent Caporn, it is the case that you gave an instruction to Constable Italiano that even if Q2 confessed that he was to be released?---That's not the full extent of the instruction that I gave. But did you give an instruction along those lines?---I gave the instruction, and again I can't remember my exact words, but the effect of my instructions were that whatever occurred in the interview on that particular day that they were going to interview him, he was to be released and that I would re-assess the evidence. And I'm not so sure that I used the word "released" in fact, but that he wasn't to be charged at that particular time until I had an opportunity to re-assess the evidence. Constable Italiano, who was a constable at the time, said that what you said was that regardless of whether Q2 confessed or not, "you are to release him and I will reassess the evidence".

Do you accept that you gave that direction, as she has - - ?

---I don't accept that it was necessarily in those exact words. I think I've given quite clearly what the thrust of my - - what the effect of my instructions were.

But you've just said that regardless of what happened in the interview that you would reassess the evidence?

---That he was not to be charged, and that I wanted a hand in reassessing the evidence; yes, I did.

So even if Q2 made a full confession in the interview to the interviewing officers, he was not to be charged. That's your evidence?

---As I said on Thursday, quite clearly if he had have sat down and made a full confession then I would suggest that I would have received a call that day about that issue from Inspector Brandham.

But that's not what you said to Constable Italiano, is it? You said regardless of what happened in the interview he was not to be charged?

---As I say, I don't recall the exact words.

Are you able to answer that in the affirmative or the negative?

---I don't recall the actual? words, if you'd just let me answer your question. I don't remember the exact words that I used, but the substance and effect of my instructions were that, and I've explained the reason why I gave that clearly on Thursday - - were that I wanted a hand in re-assessing the evidence because there were many issues in relation to perceptions about what amounted to a confession and, indeed, as I say, I believed that this case could have gone forward with just some admissions, let alone a confession. But we had to get it right. We had to be professional, thorough, and, at the end of the day, safe to make sure that we were charging him with the correct charges that were sustainable.

MR HAMMOND: The four officers that have made their complaint to the Royal Commission; as you know, they complained that you made a direction that, "Regardless of whether or not Q2 confessed or not, you are to release him, and I will re-assess the evidence." In relation to that, they say they have never had such an instruction before in their time in the police force. What do you say to that?---Well, that amazes me that they've never been into an interview and not had a case significant enough to do some reassessment at the end of it. Particularly when you're working in that particular field, or any field with issues that really, at the end of the day, there are several things that have to be considered so the right charges are laid.

I put it to you that if a suspect comes into an interview and makes a full confession that it would be very rare for a direction to be given that he be released?---But you must take into context - -

No. No. I - - ?---No. No. No. In answering your question, you - - you must - - you cannot work in a vacuum. You must take into context that I'd already been told things like that Q2 had confessed to the mother. Now, I'm sure with your experience, if you look at the statement of Q1's mother, you'll see that that is not a confession. So now we start to move into a field where perceptions weren't correct.

Superintendent, that's not your evidence?---And it would have been very wrong of me - - very wrong of me to hand full carriage back to the team when they obviously didn't agree with my view on that matter.

Superintendent, that, with respect, is not your evidence. What you have told this Commission is that regardless of what happened in the interview you would reassess the evidence?--- So what's different in relation to that as to what I've just said?

I'm putting to you that the logical inference to be drawn from that direction is that even if Q2 made a confession he was to be released?---That's a confession in their mind. And - - and to be released is again a word that I don't believe that I used.

MR HAMMOND: Superintendent Caporn - - ?---I don't believe that I used the word "released".

- - do you agree with that inference, that regard - - ?---No, I don't.

You don't agree that that means that?---No, I don't agree with that inference at all. Because you're taking things out of context. We've already had a lengthy discussion about the views on the diaries and the views on - - and what amounted to corroboration, and the views on the issue concerning the alleged confession. Now, you - - -

WITNESS: - - - the alleged confession. Now, you can't work in a vacuum. You must take those things into consideration because they're very important issues. This is about management and leadership, and that was my role.

MR HAMMOND: The officers say that you provided no qualification to your instruction that Q2 be released whether or not he confessed?---This was a lengthy discussion where I've already gone through my evidence, the number of different aspects of - -

Are you able to answer - -?--- - - this case - -

- - the question? Did you provide any qualification to your statement, that regardless of what happens in the interview, you would reassess the - -?---There was qualification given prior to even making that statement and - -

Oh, so you - -?--- - - again, I refute the words, the exact words that said I've been used, because I don't believe I used the word "released."

But you don't remember what words you used now, do you?---I know the - - I know - - I cannot remember exact words, but I can certainly remember the substance and effect of my instructions. I mean, they are without question - -

Constable Italiano - -?--- - - not what has been portrayed here.

- - has a crystal clear recollection of the words that you used?---Well, I'm not going to argue about what Constable Italiano believes, or her perception is.

I put it to you, then, do you dispute Constable Italiano's clear recollection that you gave the instruction that regardless of whether Q2 confessed or not, "You are to release him and I will reassess the evidence." Do you dispute that?-- -I dispute many of the perceptions that she's had in this matter.

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Do you dispute Constable Italiano's recollection that you said, regardless of whether Q2 confessed or not, "You are to release him - -"?---I question that I used those exact words, yes, because it seems to take, to some extent, the substance and effect of my instructions out of context.

Do you dispute that you said to some of the officers on that team that you would lose your job if Q2 was arrested?---The only one I had a discussion with that about - -

Sorry, can you answer the question?---I will answer, if you let me answer the question, because you said to a "number of officers." The only person that I had that conversation with, in fact, was Constable Italiano on the 8th of January, and it was in context, as I explained on Thursday, nothing about the issue of what's been suggested. It was all about the fact that if you go and charge people with these serious offences when you haven't got a brief and that you're going to put forward offences that would be nolle prosequi, then it is an extremely serious issue and it would impact on my position. Absolutely it would, and I would say that it should impact on my position, because I wouldn't be doing my job.

MR HAMMOND: Did you say to Constable Italiano that you would lose your job if you proceeded to arrest Q2?---No. I said that - - and again, whether the words be exact or not, I said, "Certainly, I could lose my position if you were to charge people when you didn't have sufficient evidence to charge people with these type of offences" and I still stand by that.

So, again, you dispute Constable Italiano's recollection of what she says you told her?---I dispute the perception of what she says that I told her. The perception in the context of what I told her has certainly been put forward in a different - - than it was.

At the time of this investigation, Superintendent Caporn, you were in charge of the Macro Taskforce?---I was the commander of the Macro Taskforce, yes, I was. I still am.

Which was investigating the Claremont serial killings?--- That's right.

And you were also in charge, as superintendent, of four separate areas of crime within the WA Police Service?---Yes, I was. Yes.

That included homicide?---Yes.

The Child Sexual Abuse Unit?---Yes.

And what were the other two areas?---The Sexual Assault Squad, as it was then, and the Missing Persons Investigation Unit.

And you had the time to devote, as you call it, a thorough review of this file and to put all matters on hold while you were investigating the - - well, heading up the Macro Taskforce?---Yes, and as I pointed out, and I think it's important to your question, that as soon as I was appointed as acting superintendent at Personal Crime, I appointed an operations manager, so I elevated a person into a position that would take far more control of the day-to-day issues. I provided over-arching management and leadership in relation to major decisions, but the day-to-day runnings of that particular inquiry were delegated to an operations manager.

MR HAMMOND: You've already said in evidence that this was a very simplistic investigation, haven't you?---No. I said the brief that I reviewed, the brief of evidence, compared to other briefs of evidence that I've reviewed, I found it to be very simplistic. It would be one of the easiest ones that I've reviewed in the last 7 or 8 years. Why didn't you entrust the matter to Inspector Brandham - - -

MR HAMMOND: - - - to Inspector Brandham?---Because as I pointed out on Thursday, Inspector Brandham - and like anyone else who works directly for me - would have had a hundred things on his plate.

But you had a hundred things on your plate, Superintendent. You were in charge of the Macro Taskforce, investigating the Claremont serial killings, yet you had plenty of time to devote to this?---No, no. Don't take it out of context. Yes, I was a very busy person, but I also knew that I had the knowledge, skills and ability to deal with this in the matter of a couple of days.

Yes, but so did Inspector Brandham, Superintendent?---He may have, but you've got to take the - - the situation. What I - - there was a major reform going on in the Child Abuse Unit. I've already clarified that. He was doing a whole number of things for me. Anyone who works for me directly will tell you that I delegate a hell of a lot to them. This was a situational decision. This was - -

But as to delegate, why didn't you delegate this matter?--- This was a situational decision based on what everyone was doing at the time, and I knew that I had a lot of experience in doing this and I knew that I could do it within a couple of days, and I made a decision.

I'm not questioning your abilities, Superintendent. You've told this Commission the extent of your abilities, but you've also told this Commission that this was a simple brief?---It was simplistic review of evidence that I've done, yes.

You've also told this Commission that you were a very busy person - -?---Yes.

- - heading up the state's most important murder investigation - -?---Yes.

- - at the time?---Yes.

And you've also told the Commission that you delegated work very easily. You were very good at delegating?---Yes. I have no problems with that.

Why not delegate a very simple brief to an inspector - -

COMMISSIONER: No, a simplistic brief, I think was the word. It has a very different context.

MR HAMMOND: Sorry, simplistic brief to someone such as Inspector Brandham?---Because it was a situational decision. It was based on what everyone was doing at the time. I set aside the time and I did it myself. And, you know, it's not unusual for me to do that. I will make that decision and I will do it, and I can give you many many other examples of me doing that.

Were you familiar with Operation Cathedral?---Yes. I certainly have some recollection of Cathedral, but I'm - - I'm - - look, I - - I don't have the depth of recollection with me at this particular time.

That was the child sexual abuses - - the Child Sexual Abuse Unit's most important investigation in 1998?---Well, yeah, that may be a judgment call, but go on.

It involved 105 search warrants being executed around 13 countries in the world?---Yes, but - -

Is that correct?---Our part of it certainly wasn't to that extent. I can assure you. Our part of it was a very small part in that international investigation, and that's why I would dispute that that was our most important - -

It involved complicated issues of jurisdiction?---It involved an assistance that we were giving to an external body and I certainly wouldn't put it at the upper end of what we were doing. It was probably the upper end of something that got a bit of publicity but it certainly wasn't a - - what I would consider one of the major issues at the time.

It involved the international media?---Oh, certainly. As I say, media-wise it was - - it was an international event, but our - - our role in that was fairly small.

It involved complicated issues of law, didn't it, for the Child Sexual Abuse Unit?---I wouldn't think so.

You don't think so, or you don't know?---No, I don't think so.

Do you have any knowledge of it?---I have - - as I said to you, I do have some recollection of that particular - - of that particular inquiry and the role that we played in it.

But you never reviewed Operation Cathedral?---No, there was no need to.

There was no need to?---No.

MR HAMMOND: In fact, you took no interest in it at all?---No, that's absolutely wrong. Of course I take interest in any investigation. As I said, the benchmark that I set in my business areas was to advise me of any significant investigations. Now, that was one that I had advice on, albeit that our role was fairly small in the - - in the big picture.

This was a case, Operation Cathedral, where the National Crime Squad hosted a communications centre for law enforcement officers globally and the Child Sexual Abuse Unit in Perth was providing significant assistance to the global investigation. Do you agree with that?---That would certainly be our media spin on the matter, yes.

That's your media spin on it, is it?---That's right.

Is that a truthful spin, or just the media spin?---No - - well, you know - - I mean, obviously we try to highlight the good work and the assistance that we provided. You know, it was made a lot more of than our role really was. I mean, let's - - let's be honest about this. We weren't coordinating that investigation. We were playing - - -

WITNESS: - - - were playing a - - what I would call a fairly minor support role in relation to investigations in this state.

MR HAMMOND: You call it a minor support role, do you? ---That's right, in the big picture of that investigation. Important. Important, absolutely.

Have you read all the documents in relation to Operation Cathedral?---I wouldn't have read every document in relation to Cathedral, no.

There's extensive documentation generated by the Child Sexual Abuse Unit?---Probably well could be. Yes. Intelligence reports. I'd say some of it would have been from material that we already had possession of.

Reports coming from all around the world?---Well, this was coordinated by a body that was external to our Police Service who were basically coordinating inquiries all around the world. For them it was a major investigation and we were minor players in it.

Minor players, but the law enforcement authorities from around the world were providing your unit with information as to how people involved in child pornography, child molestation, could be apprehended?---Yes, in context but, I mean, that's their core business.

And that was the core business also of the Child Sexual Abuse Unit?---That's what I'm saying. That's the core business of the unit so you've got to take that into context. If you move that away from the area and say, "This is about that happening" you would say it's a major thing but it's the core business of the unit so that's everyday business and it just happened to be that that was an opportunity to be involved in an international operation.

Inspector Brandham said that he had several discussions, if not a number of discussions, with you regarding Q2?---Well, let me say this: from the time I - -

Is that correct?---From the - - no.

It's not?---Well, yes. Yes.

It is correct?---Can you let me answer your question so I can give you the proper facts? On the 18th of August I was advised - again that memorandum. I had nothing more to do either in verbal or any other issue in relation to this investigation until the 21st of October when - - as I recall, when Mr Brandham approached me with a - - sounding me out on the game plan by the team. Now, in the interim period between that I was largely on an officer development course for about 6 weeks of that period of time and I had no contact in relation to it, and that's not unusual. I mean, I've been advised that the significant investigation has commenced. It's not unusual for me not to hear about it until it gets to a stage where something significant is going to happen about it.

MR HAMMOND: You never sought to be briefed by the Child Sexual Abuse Unit in relation to Operation Cathedral? ---I would have been briefed by them in relation to Operation Cathedral. Absolutely, at some stage or another. I mean - -

Do you recall the - - ?--- - - in that period of time I would have been briefed about a number of investigations that were being conducted by the Child Abuse Investigation Unit.

The discussions that you had with Inspector Brandham regarding Q2 - they were instructing Inspector Brandham to oversee the carriage of the file by the officers at the Child Sexual Abuse Unit?---No. No, they were not.

They were not?---No. After my review I gave him specific instructions to overview - - this was after I'd had the meeting on the 10th of November. I gave specific instructions to Mr Brandham to overview the game plan, the operational plan for the interview, and also to be present on the day of the interview. Again, I never gave him any specific instructions in relation to that. It was just having a man of his experience there. No matter what connotation, no matter what path it took, I knew that he would add value.

He's told this Commission that he was to oversee the activities of the Child Sexual Abuse Unit in a non-involved manner. Do you know what that means?---Yes. Absolutely. In the - - the main reason I was sent to the Personal Crime Division was because of the significant issues that existed in the area - this is aside from anything to do with Q2 - and I put him in place down there and, as I said, a bit of water had passed under the bridge before I put him in place down there, to address many of those issues. If you have a look at the review that was done in October 98 of the area, the independent review that we had done, you will see that there is a wide range of significant issues in relation to the backlog of files, the dwindling amount of arrests, the processes that were taking place down there that needed addressing. Now, if you have a look at that particular review you will understand why I had Mr Brandham and had a commissioned officer paying close attention to it - - -

WITNESS: - - - close attention to it. We implemented major reform over the next 12 months in that area.

MR HAMMOND: Why did you give the instruction that Q2 was not to be arrested until you had reviewed the file personally?--- Because I was not confident that the correct judgments were being made. Already judgments had been made that were wrong, and I wanted to make sure that we were professional, that we were thorough and that we were safe, so that when we laid charges against Q2 that they were going to be charges that would be sustainable to the point - -

Do you say that Constable Italiano was making wrong judgments in relation to the matter?---I will certainly say that in relation to the fact that Constable Italiano thought that there was a brief on 12 to 14 charges without Q2 saying anything was an incorrect judgment. Now, I really believe - - I really believe, and I still say to this day, that that is an issue that should have been picked up at a supervisory level, because Constable Italiano was in fact that when she first started that investigation. Over the next 12 months we've changed it so constables who were interviewing officers do not take carriage of the investigation. It is a very - - it has a lot of pitfalls. It's a very dangerous situation and it's not fair on the person who is the interviewing officer. This no longer occurs.

Even after you had reviewed the file you were happy or content that Q2 be brought in for questioning, weren't you?--- Absolutely

Because you thought there was enough on the file after your review to warrant an interview of Q2?---Oh, absolutely. No question.

And that was notwithstanding your concerns in relation to corroborative material?---Well, the interview's all about gaining corroboration. The interview is all about - - there were a number of things that we could have put to Q2 that would have certainly, if he had have responded to the questions, given us an opportunity to get either admissions and then, you know, given the large extent of it, if he was to confess, well, that's fantastic. But even some admissions would have put us in a position to be able to consider charges against him.

So even if there had been admissions to the investigating officers you wouldn't have necessarily charged?---It would depend on what those admissions were, you see. If he had admitted to certain things, that's when you've got to take into context the issues of statute law, the issues of consent and the issues in relation to the time frame and the age of the - - of Q1 at the time of the events, you see. It's not just a straightforward matter. You have to look at that and say, "Yes. He's made an admission to that. That admission amounts to this. It's supported by statute law. There are no consent issues. We can prove her age," if that was part of the - - depending on which particular issue he admitted to. You know, they're the things that needed to be done to make sure we got it right. Now, that doesn't mean that we can't go out 2 days later and arrest him. We can do that. Or we might have chosen to summons. Either way you can do that, but either way, when the charges were laid, they would have been sustainable to the point of getting them to court. No one can guarantee convictions but you've got to have them sustainable that you're going to get to court.

MR HAMMOND: Isn't there a real danger in child sexual abuse that if someone confesses and they're released that there could be an impact on the victim?---Let me say this, and it's certainly an issue in this because it was put up by the team. In my experience I always find that the team on the ground take the most extreme view of that. There were some issues here, but I didn't think that those issues outweighed the fact that we needed to be professional, thorough and safe in laying the right charges. And I did consider that. I mean, that's my job. That's where leadership and management comes into it. I sometimes have to override decisions made by people on the ground, and that's certainly what I did on that occasion. But as I say, if he had have confessed and Inspector Brandham had have contacted me and said, "Look, Dave, he's just - - he's just told us the whole lot here," well, I could have made a decision that day that we at least charged him with some of the obvious offences and we could have later charged him - - preferred charges in relation to the more difficult analysis offences. I mean - -

So Inspector Brandham - - ?--- - - it's a situational effort.

Inspector Brandham had to come to you, even for approval to arrest someone that may have made a confession?---Because under those circumstances you can't act in a vacuum. The circumstances were there'd been significant issues in relation - - as my review identified that the team were going to arrest a man on 12 to 14 charges, some of which were even statute barred. Okay?

Can you answer the question yes or no? Did Inspector Brandham have to come to you, even if the suspect confessed to child sexual abuse, before he could be arrested?---In this particular circumstance I would have at least expected a phone call in relation to it; absolutely. Given all of the circumstances, not just operating in a vacuum - - -

WITNESS: - - - operating in a vacuum, trying to isolate something that is not true.

MR HAMMOND: Are you able to answer the question? Did Inspector Brandham have to come to you, if the suspect confessed, before he could be arrested?---I've just answered that question.

Your answer is, you would have expected a phone call?---In - - given all the circumstances, in this particular instance, I would have at least, at the minimum, expected a phone call to get some acknowledgment of what occurred in the interview, given all the circumstances of what - -

But couldn't that be left to - -?--- - - had transpired - -

- - Inspector Brandham?---Again, the difference between Inspector Brandham and myself in this case is that I'd reviewed the brief of evidence. It would have probably only taken minor detail for him to provide to me, but I had set a proviso that there be at least some contact.

A brief which you describe as simplistic?---It's simplistic in relevance to other briefs that I've reviewed. Simplistic in relation to the complex briefs that I had previously reviewed and have reviewed since in relation to evidence against - -

And it's also the case, isn't it, that even the interview of Q2 couldn't proceed without your knowledge?---Oh, no, that's not the case at all. I wanted to know basically what the outline plan was, but you know, that was pretty much delegated back to the team, with an oversight by Inspector Brandham.

Inspector Brandham's evidence was, "the interview was postponed until Superintendent Caporn reviewed the file"?---Oh well, that goes without saying. We're talking about two different issues here. They were going to interview him initially on the 2nd of November. Now, on that occasion, if he'd have come in and said nothing, they were going to arrest him and charge him with 12 to 14 offences. Now, that was delayed for 7 days because I wanted to do a review, and we know the history of that. From that point on, what day they done the review was completely up to the team to put together an operational plan, and the only proviso that I had was that I wanted to have a hand in reassessing the evidence to make sure that we got it right.

Was it your view that the officers on the case had lost perspective in their dealing of the matter?---No. I - - my belief is this; one, Constable Italiano had certainly misread the brief in respect of saying that there was sufficient evidence to charge initially 12 to 14 offences. Secondly, I really believe that the supervision aspect had not occurred in respect of more senior officers had taken it on face value that there was corroboration in the diaries and that there was other supporting evidence, ie, the confession on the mum, to -

MR HAMMOND: Did you ever speak to anyone about the lack of supervision?---So - - yes, I did. Most certainly. I'll explain that. So, what I say is this - - is that it should not be taken on face value of the interviewing officer who turned out, in this case, to also be the case officer. As a supervisor in this particular unit, it should have been a thorough examination of the brief. Now, when I had Sergeant Miller, Senior Sergeant Miller and Constable Italiano in to explain my review of the evidence and the second opinion of Ms Vicker, they admitted to me that neither of them had read the diaries thoroughly, that neither of them had done the crossreferencing work that I had done. Now, these are fairly basic things that should have been done prior to proceeding, so I don't know about perspective. What I do know about is that they hadn't done the job to the extent it should have been done at that critical point, and that's not all the blame on Constable Italiano. That's a team effort, and to some point, I'm accountable for that as well. And that's why I put in - - measures in place, and most certainly I counselled Sergeant Miller on two significant occasions in relation to this, and I also dealt with this matter extensively in his performance report, but I do believe there are other issues in relation to that, and they are health issues concerning Sergeant Miller's performance at the time.

Inspector Brandham was there to oversee the Child Sexual Abuse Unit?---Yes.

And you were also there, reassessing evidence, giving directions that interviews not occur and giving directions that arrests not occur until you'd reassessed the evidence. So, there was a lot of, would you not agree, high-level involvement in the case of Q2?---There was a lot of high-level involvement in the Child Abuse Unit at that time. Let's put aside the case of Q2. My fingerprints were all over that unit in relation to the time. Major reform was required and major reform was implemented over the next 12 months. This was not just an isolated case where they had - - I would - - I would tell you right now that out of the four business areas that I had at the time, in that 12 months there was more work done and more high-level work done with the Child Abuse Investigation Unit than any other of the four units. If you go to the last 12 months that I was there when it was the Major Crime, I would suggest there was the less time spent with Child Abuse Investigation Unit because the reforms had been put in place, and it wasn't just about processes; it was also about resources. I was able to achieve an extra seven staff for that area, which was an important part of it. They needed extra resources - - -

MR HAMMOND: And more time was being spent on Q2's case than the Macro Taskforce?---That's not true, and I don't know what context you're putting into it, but that is - - well, I won't be disrespectful. Thank you.

You find that question insulting, do you?---Oh, I think it's a ridiculous comment, if you want me to say that. Obviously you do.

I put it to you that it was an exceptional step for you to take to get involved in the file of Q2 when you were heading up the Macro Taskforce?---Absolutely it was not. You've taken that completely out of context. I've already explained that, I think very clearly, and that is not the case. I mean, I'm also the superintendent that's interviewed three suspects in the last 2 years and - - and - - in relation to cases. I guarantee that none of the four officers or other superintendents have ever interviewed suspects in relation to cases. It's just a situational basis where I thought I could add value and I did. But there would also be, I would suggest, none of those officers who would say that their superintendents have ever interviewed suspects, and I've done it on three murder cases in the last 2 years.

So you got involved in the file of Q2 because you thought you could add value?---Absolutely, and I did.

So do you agree with Inspector Brandham's statement, "The officers had lost perspective in relation to the case" - the four officers that have made this complaint to the Royal Commission?---I think I've adequately explained what my position is on that matter.

Are you able to answer that affirmatively or negatively?--- Well, you know, I'm - - I'm not quite clear exactly what he said and what he retracted, or whatever. I think I'm quite clear on the fact that I've explained at length what I thought about - - occurred in relation to this brief.

Do you agree with Inspector Brandham that Q2's profile was a concern?---No, it was a consideration. Not a concern. It's a consideration. It's just another aspect, another element, of an investigation that has to be considered. It was going to be a controversial issue and it has to be considered, but that's just all it is. It's a consideration.

Inspector Brandham said in his evidence that his instructions were "No matter what occurred, Q2 was to be released." He was asked:

"Those instructions being to release Q2 - -?---Yes. "- - no matter what occurred?---That's correct. And to provide feedback to Superintendent Caporn on what had occurred - - what had occurred on that particular day."

MR HAMMOND: Is that correct?---There's many things that Inspector Brandham articulated and many other witnesses articulated about my thoughts that were not exactly correct.

He doesn't say these were your thoughts. He says:

"Those instructions being to release Q2 - -?---Yes.

"- - no matter what occurred?---That's correct."

WITNESS: Well, that's - - that's his recollection of that matter. I've already covered that issue. I mean, he's been bombarded by press and many other issues and plus, you'd only have to look at what an officer has been involved in, or any of us have been involved in, in that time. But I'm the person who gave the instructions. I know what the effect and substance of my instructions were and I've made that quite clear and I stand by those instructions.

MR HAMMOND: He also felt it was your position that the officers couldn't be trusted to carry out your instructions?-- -I think I've made myself quite clear on that issue.

Do you believe it was Sergeant Miller's position that he was showing resistance to the file being reviewed by the DPP?---At what particular time are you talking about? I mean, I don't think it was Sergeant Miller's position that he had shown resistance to the DPP reviewing the file. There was some initial resistance that was conveyed to me concerning my review of the file. My understanding is that Senior Sergeant Miller was - - was very much happy about having the file reviewed by the DPP and in fact I think he's put that on paper to me.

And you're a friend of Inspector Brandham?---Absolutely.

A close personal friend?---Oh, I wouldn't say close personal friend. I mean, we don't have a lot to do with each other socially - -

WITNESS: - - - each other socially. I mean, socially we'd probably get together about twice a year, but do I have a close working relationship with this officer? Absolutely. He's a fine officer and he can work on my team or I'd work on his team any day.

MR HAMMOND: And you were briefing the deputy commissioner in relation to the file of Q2?---In perspective. I had spoken to him on probably two occasions about the matter but again put it into perspective. I had a direct reporting relationship into the deputy commissioner because of my role on Macro and we used to also discuss at times, and they're all recorded, Personal Crime issues; and they've all been spoken about in evidence.

And there was a concern by you and the deputy commissioner that his relationship with Q2 would become public?---No. That was never ever discussed between myself and the deputy commissioner.

And that was discussed - - but that issue was discussed between you and Inspector Brandham?---What, about Mr Brennan's - -

Mr Brennan's association with Q2?---Becoming public?

Yes?---No. We never discussed that issue.

And no issues regarding media releases were discussed? ---Certainly there were issues regarding media releases. When Mr Brandham came to me on the 21st of October sounding me out on the game plan that was coming forward from the team there was certainly a number of discussions about that because there was one thought coming from the team that there be a media conference done after Q2 was arrested and I was against that because we don't normally do that in relation to those sort of arrests.

Did you hear the evidence regarding the diary entry of Inspector Brandham of the 23rd of October 1998 where it was said:

"Explain Mr Brennan's interest - professional only."

Did you hear that evidence?---Yes.

And were you present at a meeting where that issue arose? ---No.

Were you aware that there were concerns in the Child Abuse Unit in relation to the association between the deputy commissioner and Q2?---No. The first time I became aware of concern was when I was handed that August 25th memorandum, which I was given well into December, and I think you know what my thoughts were on that; and I recorded them the very same day when I received that. I think if I had have known those things it could have made a hell of a difference to us sitting here today having this discussion.

MR HAMMOND: It's your position that Constable Italiano, soon to be promoted to detective, didn't read the diary notes properly?---Oh, absolutely.

Did you instruct her to read them properly?---I didn't instruct her to read them properly but I did question her and Sergeant Miller about it after I had done my review and they admitted to me that they had not read them thoroughly.

You say you read every page of the diary notes?---I did, yes.

And every entry?---Yes.

Were you familiar then with the symbol that Q1 used after sexual contact had occurred with Q2?---I may have been at the time. I'm not now.

You're not now?---No.

It's been in the press?---It may have been in the press. I don't read every press report.

So you cannot recall the symbol that Q1 used after sexual contact with Q2?---No. I can't recall at this time. No.

And you read every page of those notes?---Yes, I did.

Did you have a copy of the file in your office?---When?

At any stage?---No. I had a - - what I obtained when I decided to do a review of the brief. I obtained a full copy of the depositions, medical reports and any other issue that was going to be put up as evidence and I obtained the set of diaries, which was a large volume of diaries. That is what I obtained. So it wasn't the file as such but it was the evidence, the brief of evidence that was going to be put forward, and that was only with me for a couple of days and then it was given to Ms Vicker and then it was later picked up by Mr Brandham and taken back to the Child Abuse Investigation Unit.

And it's your position that you conducted a very deep and extensive review of the file, isn't it?---I conducted a thorough review over a couple of days. That's my - - not of the file, of the brief of evidence.

MR HAMMOND: You never met with the complainant?---No. No, not until the 8th of December.

In your evidence on Thursday last week you say that you weren't prepared to leave the full carriage of this matter to the team that was involved in investigating it. Doesn't that indicate that you had lost confidence in the unit?---No. I think "lost confidence" is too harsh a word - - -

WITNESS: - - - too harsh a word.

MR HAMMOND: What word would you use then?---I would - - exactly as it was. They didn't agree with my assessment or Ms Vicker's assessment on the brief of evidence. I had found significant deficiencies in this particular inquiry as to what they were going to do and what they had done, only concerning the fact that they believed that there was evidence that didn't exist. So as a manager and as a leader it would have been very wrong of me then to just say, "Well, despite all these issues you now have full carriage to go ahead with this." You know, so I put some things in place - checks and balances, so to speak; whatever you wish to call them - to make sure that we did this professionally, that we did it thoroughly and that we were safe in relation to what we were doing.

It's the position of the four police officers that there are many other files in the Child Sexual Abuse Unit that don't have independent corroborative evidence, and they were proceeded with. Is that your understanding?---I know there are some occasions where such briefs are proceeded on, but it has a great deal to do with the situational aspects of the case, and certainly one of the significant issues in relation to Q1's complaint was the time frames in relation to it. But, you know, every case is situational in relation that we deal with, and certainly the time frames impacted on the analysis of Q1's complaint.

Let's get this clear. You do concede that there were other cases at the Child Sexual Abuse Unit at the time without any independent corroborative evidence that proceeded to the preferring of charges?---Don't take this out of context though.

I'm asking you, do you concede - - ?---No. Don't take this out of context.

- - that there were some cases - - ?---It's very important, because it's been reported out of context. The recency is a major aspect of these particular issues.

No. I'll get to that, superintendent?---I think I already said in my - - my evidence that if this had occurred a short period previous, and depending upon all issues like the issues in relation to complainant, and many other issues, and it gets to be a bit hypothetical, but at the end of the day potentially there is in - - with different circumstances.

I'll ask the question again, superintendent?---Yes.

MR HAMMOND: Do you agree that at the Child Sexual Abuse Unit in 1998 there were other cases that did not have independent corroborative evidence?---Well, I don't know that I can actually say yes or no to that, because there are so many other issues to take into context.

So the answer is, you don't know?---No. The answer is it's situational. Every brief must stand alone in relation to that matter.

Are you able to answer that very simple question?---No. Well, I have answered it.

Is that the best you can do?---That's the correct answer, because you're trying to narrow something down to which it shouldn't be narrowed down to. You've also got to remember that that was in the very early stages of my being a part of that unit, which is why some of these officers have the perception of what I should do as a superintendent or not, and comparing me to how other people do business.

Do you also agree that there are other cases of child sexual abuse which have a significant historical element - and by that I mean they occurred many years ago - and that they also lacked independent corroborative evidence, yet they still proceeded with preferring of charges?---I would suggest to you there were a number of cases like that that didn't go forward. But again, it's situational. Let's - - you know, you can't just draw a line in the sand here. They're all situational. Now, are you talking about cases that were 30 years old, or you're talking about cases that were 5 years old, 10 years old? Remembering I've already spoken about the DPP policy, not to prosecute uncorroborated offences that are more than 20 years old. Now, that's something that they put in place with all their prosecutorial experience. You know, that's - - so, you know, they're the sort of issues that you have to look at.

Well, I'll try and put it more succinctly. The four officers, when they complained to this Royal Commission, said that there were other inquiries being conducted by the unit at the same time - - -

MR HAMMOND: - - - at the same time which involved less corroborative evidence. Do you agree with that?

COMMISSIONER: Well, you are saying there was no corroborate evidence, weren't you?

MR HAMMOND: Sorry, this is another proposition - -?---That's right. I'm saying there's no corroborative evidence, and what I'm saying is this - - is that you, given that statement, but in that statement you've just made, you haven't put a timeframe, you haven't talked about aspects in relation to what did exist in these cases. I mean -

Well, I'll read the statement in full, superintendent, and - - ?---Can I have a - -

- - ask you whether you agree or disagree:

"We are concerned by the fact that other inquiries conducted by the Child Abuse Unit at the same time involved less corroborative evidence, had the same time frames of disclosure by the complainants, which resulted in the matters proceeding to arrest, charging and successful prosecution in the District Court."

WITNESS: Well, certainly none that I'm aware of.

MR HAMMOND: Did you make inquiries?---No.

They went on to say:

"Of all cases investigated by the Child Abuse Unit, this was the only one - -"

They've left out "one":

"- - this was the only that Mr Caporn and other senior officers became involved."

WITNESS: I arrived there on the 26th of June - - the 22nd of June.

MR HAMMOND: Yes?---I had been in the USA for 3 weeks after that. I was - - in September I was on an ODC. Most of these people, three of the officers, the four officers, probably had me as their superintendent for about 2 to 3 months in total of me being there.

Well, let's not worry about - -?---They are not used to how I do business, and anyone who is used to how I do business knows that I do get involved in cases, if I see the need or if I see that I can add value.

MR HAMMOND: Superintendent, you have not answered the question one jot. Listen to this again:

"Of all cases investigated by the Child Abuse Unit, this was the only that Mr Caporn and other senior officers became involved."

WITNESS: Well, that's actually wrong, if you give it - - that statement like that.

MR HAMMOND: That's wrong?---It's wrong, given like that. Are you narrowing this to a time frame? Are you saying that this is in that two months in 1998 or are you saying this is the whole period that I was superintendent in charge of this area? Because if you're saying that this was the whole period that I was superintendent in charge of this area, well, you're wrong. You've very wrong. But if you want to narrow it down to that 2 months, this probably was the only case that I was involved in at that time. So, you can't just operate in a vacuum. You must be specific in what you're doing.

I wonder if the superintendent can be shown a memorandum that he wrote to Detective Senior Sergeant Miller on the 25th of August?

MR PETTIT: Are you sure about the date?

MR HAMMOND: The 25th of August 1998 - - sorry, I've read from the subject matter. It's actually dated the 14th of December 1998.

MR PETTIT: Yes. That's D1012867.

MR HAMMOND: I think you now have that, superintendent?---Yes, I do. Yeah.

There are four questions asked there?---Yes.

And this is in relation, of course, to the memorandum from Constable Italiano outlining her concerns?---Yes.

Question 3 is: "Why didn't you advise either myself, Detective Inspector Hawker or Acting Detective Brandham regarding this information."

WITNESS: Yes.

MR HAMMOND: Question 4:

"Why didn't you include the memorandum in the report that you submitted."

And you require your information in the form of a memorandum by close of business by the following day?---Yep.

MR HAMMOND: Do you recall what time Miller received this memorandum from you on the 14th of December?---No, I don't. No.

And you wanted him to respond - - -

MR HAMMOND: - - - him to respond within 24 hours? ---Absolutely.

Because this issue was of critical importance?---Absolutely.

Because it involved a taint, if you like, on the deputy commissioner?---Not at all. That's not the reason. I'll tell you exactly what the reason was. It was because this significant piece of information had come in which obviously impacted on both Q1 and impacted on Constable Italiano. It had been with Senior Sergeant Miller and Constable Italiano for 3½ months and it was only after the complaint file had been received and he had already given me a report that he decided then - - and in his own words on his report, "I'm obliged to tell you about this." I saw this as a very serious matter and I still believe to this day that if the August 25 memorandum had have been dealt with properly that we may not be here today.

What would be the proper way of dealing with Italiano's August 25 memorandum?---It should have been immediately established and investigated. It should have been dealt with in a transparent manner. It should have been taken forward to the divisional office. It should have been registered with professional standards and it should have been investigated. At the very minimum, (...name suppressed...) should have been interviewed. At the very minimum, the inquiry should have been subject to a proper report and a proper approach in relation to it, so whatever the outcome may be that any concerns by Q1, by Detective Italiano and any other inferences that had been made had been clarified one way or the other.

Did you speak to (...name suppressed...)?---Absolutely not, because by the time that I received this file the matter was already subject to a complaint, a complaint that was going to be going to an external body depending on the decision, the final decision that she made, and I actually included on my memorandum of February 4, which is the time when I've sent my file on to the - - the one that went to the ACC - - exactly why I didn't in December start making inquiries about it, because the matter had gone out of my hands by then, but if I'd have got this file on August 25 it would have absolutely been dealt with in a very transparent way and I believe all this perception and innuendo would have been nipped in the bud. You can see by the questions that I put there the seriousness I saw about Sergeant Miller holding back this memorandum and, in fact, in my report on February 4 - - I informally counselled him and in my report on February 4 I recommended to the professional standards area that on completion of the ACC inquiry that Senior Sergeant Miller be formally counselled in not appropriately dealing with the memorandum given to him by Detective Italiano on August 25.

MR HAMMOND: You never wrote to Senior Sergeant Miller at any time, did you, telling him that the way he had handled this matter was inappropriate?---Never wrote to him?

No. Never sent him a memo?---I've sent him this memo and I've formally counselled him in person on two occasions in relation to this. Informally. Informally. I also spoke to him at length about this issue, and I have the notes from our performance report meeting which was on the very next day, December 15. We had a meeting in relation to his performance report. I still have maintained the notes of that, and this was one of the key issues because it all comes down to judgment and ability to manage ethics, but I want to also say that Sergeant Miller in my opinion was suffering from health issues at the time and this was not his normal - - I don't believe that in the past he would have been operating at the level he was operating during this period.

What's the ethical issue involved?---If you're going to manage ethics you need everything you do to be transparent. To hand this August 25 memorandum back to Detective Italiano and tell her, "Look, it's a" - - I mean, if you go by the report he gave me back on this, "Look, there's nothing in it. Just sit on it and don't tell anyone about it." That's not managing ethics because all of a sudden there's the conspiracy theories growing in her mind and in the mind of the complainant, so you're not managing ethics if you're not making these issues clear to them. That's to say - - I mean, who knows - - and I think we get a fair indication of what was going through Detective Italiano's mind by the evidence that she's given in these proceedings in relation to what one - - words are said and they mean another thing.

The next memorandum you received was one by the close of - - or you actually got it the same day. Detective Senior Sergeant Miller wrote back to you on the same day? ---Yes, he did.

14 December 1998, outlining the circumstances of Constable Italiano's note?---Yes.

And he gives you the reason:

"I was reluctant to proceed into some form of parallel investigation into the deputy commissioner based on third party information."

MR HAMMOND: Did you have any issue with that response?---I did not accept his response at all, and I told him that, and one of the issues that I put down in "performance" was the fact that even after sitting down with Senior Sergeant Miller and explaining the situation to him - even after doing that - he still could not see - - he still believed that he - - he still relied on his view of the matter and it was my personal belief, and my experience, that his view on the matter was totally incorrect, and I stand by that and it was why I said he should be formally counselled in relation to the matter. That's how serious I see the issue. And I'm not saying that now. I recorded that at the time and they're documents that you examined.

But as superintendent, you were happy to leave Miller in charge of the Child Sexual Abuse Unit?---No, I wasn't. Within 6 weeks of this issue, he was removed from that position, and I also reported to health and welfare the issues that I thought he was going through in relation to that, and I also spoke to him directly about that.

So it was this issue that led to his removal and the way he handled it - - sorry, the way he handled it, in your view, that led to his removal - -?---No.

- - from the Child Sexual Abuse Unit?---No. This was one issue. There were many many issues. This was one issue. This was just one element of that. If you look at my performance reports notes, there were a whole number of issues that we spoke about in that and there were - - there was a range of issues. This was just - - this was just one element.

But your evidence is that within 6 weeks of this memorandum - -?---Yes.

- - he was removed from the unit?---Yes, he was.

In relation to his response at issue 3:

"I did not advise yourself, Detective Inspector Hawker or acting Inspector Brandham, for the following reasons: the information was third-hand information that may or may not be true."

WITNESS: Yes, but he's not seeing the forest from the trees there. You know? You don't just look at whether it may or may not be true. The veracity of the complaint is nothing to do with why it should have been investigated. You should not make a decision on the veracity of it. You should make a decision to - - to investigate the matter to make it transparent. So no matter what the veracity - whether it be right, whether it be wrong - the matter is dealt with fully and thoroughly. That way, there can be no misguided perceptions; that way, there can be no conspiracy theory.

MR HAMMOND: I put it to you that Miller gave you a very honest response when he said:

"I did not place the memorandum on the original report to you because the information was third-hand."

WITNESS: Oh, let me make it quite clear - and I hope I haven't come across the wrong way - Senior Sergeant Miller believed that what he was doing was right. I have no doubt about that, and I've already discussed the issues he was facing at the time. I have no doubt that there was no malice in what he did. I have no doubt that there was no corruption in what he did. It was just poor judgment, and I believe that judgment was impacted by other issues which I've already discussed. So I certainly don't believe that there was any malice or - - or any corruption in what Senior Sergeant Miller did or not, dealing with this issue.

MR HAMMOND: Detective Italiano, as she was then, also submitted to you a lengthy memorandum, dated the 8th of January 1999?---Yes. All the memorandums after the 7th of December, bar a couple, were all related to the complaint file, the complaint file in relation to the complaint by Q1 that there'd been some sort of intervention, if I can use that word, in relation to her case, and the 8th of January memorandum was Italiano's report on - - basically start to finish, her involvement in the case.

Through October, November, December of 1988? you were very busy on other cases?---I'm always very busy.

But the issue of Q1 and Q2 wasn't your only concern at that time, was it?---Absolutely not.

And the most important matter that we've already canvassed was probably the - - trying to find the culprit for the Claremont serial killing - Claremont murders?---I don't know that it would be fair to say that's the most important issue. It's obviously a very important issue that is being dealt with and I obviously had put in place a significant structure to be able to deal with that and still enable me to deal with the issues of the Personal Crime Division. I mean, that's all about - -

But, Superintendent, you were personally responsible for the Macro Taskforce?---Me personally responsible?

Yes?---I had command of the Macro Taskforce, yes, if you want to put it that way, and I don't have any problems with - - with that.

MR HAMMOND: Did you have any other major investigations on in October, November and December of 1998?---I've got four business areas that all do major investigations. There is no doubt there would have been a number of major investigations. Some I would have actually played a direct role in, others I would have just simply had - - had knowledge of them.

And if we can now turn to the memorandum prepared by Constable - - or Detective, I think by then, Italiano, and in particular page 3 - - -

MR HAMMOND: - - - in particular page 3?---It's not the one I've got up on my screen at the moment.

MR PETTIT: I'm sorry, I missed that. You want the report from Ms Italiano?

MR HAMMOND: Yes, please. January the 8th.

MR PETTIT: It's D1012857.

MR HAMMOND: Thank you. (TO WITNESS): One page 3, in the middle of the page, it says:

"The date for the interview was unchanged. On Wednesday, October 28 1998 - -"

Sorry, I don't think you have it in front of you yet?---I haven't got it. Page 3, go on.

Yes:

"- - I was summonsed to Miller's office and advised that Mr Caporn wished to view the file and that no action was to be taken until he reviewed it."

You'd agree that that was correct?---Just point out where it is, so I can read it for myself?

Sorry, it's around about the middle of the page. "The date for the interview is unchanged - -"?---Interview's unchanged, yep. Yes. I certainly agree with that. Well, I certainly agree that that was the effect and substance of my instructions, yes.

And you also agree with:

"I then had to photocopy the entire file for Miller, who then delivered it to Mr Caporn."

WITNESS: That's what's on this paper, but I didn't get the entire file. I got a copy of the depositions and the medical reports. I didn't get a copy of the entire file. But that's obviously what's on this page here, from Detective Italiano.

MR HAMMOND:

"On November 10 1998, after Mr Caporn had reviewed the file, Brandham, Miller, Wibberley and myself had a meeting at Mr Caporn's office."

WITNESS: That is correct.

MR HAMMOND: Would you not agree that that's an inordinate amount of police resources to be involved in a review of someone who hasn't been interviewed or arrested?---No, they weren't involved in the review. That was when I briefed them on my findings. They weren't in any way involved in the review.

I put it a different way; isn't that an inordinate number of people to be involved in the management of this file?--- They're not involved in the management of this file. I'm making them aware of the findings of my review. I knew that my review would not be received well by Senior Sergeant Miller and Detective Italiano, and I wanted my two inspectors - - and at that time, those guys were both my inspectors. I wanted them present so they knew the full details, which would save me explaining it perhaps two or three times.

Then:

"Mr Caporn stated that we did not have enough evidence to charge Q2, as he considered the complainant's diaries were not good evidence, as they could be more damning to the complainant and there was a lack of corroboration for the complainant."

Do you agree that was your position?---No, that's a very narrow view. There's a whole number of - - range of issues that were spoken of. There are some words in there that I believe are not my words, but if you want me to work through it, I'll work through it with you. The complainant's diaries were not good evidence. Well, what I said was certainly the complainant's diaries did not particularise in relation to the offences and I believed that in some cases they were contrary, and they were. Again, no impact on the veracity; it's the emotional state of Q1. There was a lack of corroboration for the complainant in respect of evidence for court, yes, there was. It stated that Evelyn Vicker had reviewed the file. That's correct, and as the file stood, they would not proceed with charging. That is correct.

MR HAMMOND: And then she goes on to say:

"Mr Caporn then said that regardless of whether (...name suppressed...) confessed or not, we were to release him and that he, Mr Caporn, would reassess the evidence."

WITNESS: Well, again, I've already made it quite clear, I don't know that they are my exact words, but I think that I've laboured to point what my substance and effect of my instructions were in that matter.

MR HAMMOND: What I want to put to you in relation to that statement, and indeed, the one that follows, that Inspector Brandham reiterated what Mr Caporn had said at the meeting, about not charging (...name suppressed...) is that - - sorry, Q2, thank you.

WITNESS: Can I have a look at page 4, please? About what Mr Caporn said about not charging. Now, that's more in line, at that particular time, without me reviewing the - - now, there's nothing in that paragraph that says that Brandham said that I used the word "released."

MR HAMMOND: In relation to what is said in the penultimate paragraph on page 3 - - -

MR HAMMOND: - - - on page 3, you never sought to - - ?---Can I go back, please? Yes. Penultimate. Yes.

My copy's slightly different. I'm looking at the last paragraph of your page 3?---Okay. Yes.

Did you ever respond in writing to Detective Italiano in relation to that statement made by her?---No. Because that's her report, and this is - - and this is where you've been confused a few times. These - - these reports follow up on a very standard procedure in relation to a complaint file. Everyone who's involved in the matter, it's a standard procedure; they report on their version of events from start to finish. This was her report. I had a lengthy discussion with her on the day she handed me this report and we discussed and canvassed a whole number of issues where I tried, as I say, my level best to get Detective Italiano to put her thoughts and feelings on the table. But at the end of the day I wasn't going to send this report back to her because this is a report for the complaint file, and she should do that without interference from me.

Well, the four officers who - - well, the one that heard the instruction and the others than came to learn of what they believed the instruction was, were so incensed by it that they wrote to the Royal Commission, believing it was a corrupt statement by you?---I am really struggling to have a handle on why they had that perception, although, as I say, I do believe that things would have been far different if I could have dealt with the August 25 memorandum as I would have. I would also suggest to you, sir, that up until these proceedings that some of your clients had never seen those memorandums that I'd sent to Miller giving him a rocket in relation to these particular issues, you know, and I think that they're significant issues when you look at the full picture. And if - - and they would have also never seen my report of February 4th. And if you look at all of those issues, if you deal with anything in a vacuum, if you don't have all the information, then you're liable to come up with two and two means twentysix instead of four. Just as I didn't have all the information, because I was not given that August 25 memorandum.

Your major concern after reading of the, or after learning of the Italiano memorandum dated 25 August 1998, was to ensure that there was no damage to the WA Police Service?---Nothing to do with that. It had nothing to do with that. Absolutely nothing to do with that.

You weren't concerned about the perception that Constable Italiano had?---I was concerned about the perception and I was concerned that it had been allowed to grow for 3½ months before I was told about it. And you think of what she was thinking when - - after being told by Sergeant Miller and co that they've got a great brief, and then I come along and do my review and say there's no brief. I mean, you see how the snowball effect occurs. And I was operating without that information and should never have been doing so. There would have been extra measures that I would have taken in this matter if I'd have known about that August 25 memorandum to demonstrate that there was no inappropriate behaviour going on here.

MR HAMMOND: But you were briefing the deputy commissioner and, indeed, Assistant Commissioner Atherton, weren't you, in relation to these allegations concerning the association between - - ?---They'd had - - like on many other significant investigations, they'd had a briefing from me. Having said that, if I'd have received the August 25th memorandum things may have taken a different path there as well, because that matter would have been put on the table, that matter would have been subject to an investigation and that may have precluded me from saying anything to the deputy commissioner in relation to the matter until that was investigated one way or another.

Did you quiz the deputy commissioner about his association with Q2?---Not at all.

Not at all?---Not at all.

Did you speak to Assistant Commissioner Atherton about whether there was an association between the deputy commissioner and Q2?---We had a discussion on the day before - - the day before we interviewed Q1 and her husband, and we spoke with them. We certainly would have had some discussion then because of the complaint and the letter and the information that was in the letter from Q1, bearing - - -

WITNESS: - - - in the letter from Q1, bearing in mind, even at that point on the 7th and 8th of December, I still didn't have the August 25 memorandum.

MR HAMMOND: Did you meet with the deputy commissioner in his office when you briefed him?---Which time?

On any occasion, in relation to the file of Q2?---Yes.

You would have seen the photo on the wall, of Q2 and the deputy commissioner?---Up until these proceedings, I have never seen that photograph.

But you were aware of the association, superintendent, that there was a loose - if I can put it that way - association between the deputy commissioner and Q2?---I was aware in no great depth. I had an awareness that there was some bike rides that they used to go in. That is it. And let me tell you, doing the job that I do, there are many, many times when that sort of loose association, like going to the same meeting a person has gone to or whatever, is the case. I mean, in respect to - - you know, I've been to functions where there are lawyers who are representing people who I'm prosecuting. Now, you know, it could be said, well, I shouldn't be going to this function that these lawyers are at, because they're prosecuting someone who I - - they're defending someone who I'm prosecuting. I mean, you can take that any which way but loose. The additional information that's been given a perception by the complainant and the perception by Constable Italiano on the August 25 memorandum does have an impact, and if that had have been dealt with properly, a lot of this might not have occurred.

But, inspector - - sorry, superintendent, you were briefing the very person who was at the centre of the allegation, weren't you, about what was being said about him?---But there was no allegation to me at that stage. That's the point I'm making. I did not have that information. There was no allegation whatsoever against Mr Brennan. If you look at the August 18 memorandum, he's not even mentioned on that. I had some knowledge, through being a person in the Perth society, that he may have gone on bike rides on occasions that Q2 was also involved in. That was the extent of my knowledge. Some of the things that have been said in here in the proceedings, about the issues of the community work and the contact there, at that point in time, I had no knowledge of that whatsoever, so I didn't even have that depth of knowledge.

Your officers at the Child Sexual Abuse Unit, as you can see from the memorandums, and indeed, one you had at the time, were concerned about the possible association between Q2 and the deputy commissioner?---Which was the one I had at the time which told me that? You find the one that I had at the time that told me that?

MR HAMMOND: I'm talking about the memorandum from Constable Italiano?---January 8?

August the 25th, which you received, I believe, on the 10th of December 1998?---So, your point is - ?

Well, you knew on the 10th of December 1998 that Constable Italiano had a concern that there was an association between the deputy commissioner and Q2?---Yes, and I would - - in no way, shape or form was I briefing the deputy commissioner after the 10th of December. I did not tell the deputy commissioner in that period, and in fact, for many years later, about the existence of the August 25 memorandum. When I got that August 25 memorandum, I didn't tell the deputy commissioner about it, because by the time I got it in December, then it was a matter that was going to be investigated by an external body, so I never, even then, had a conversation with the deputy commissioner to tell him that, "Oh, by the way, there's been this memorandum where it's been suggested ABC." Absolutely not.

But if you were briefing the deputy commissioner on the file of Q2, are you telling me that he never once raised - ever - that he had an association with Q2?---No. He never.

He never told you that?---No.

I find that fantastic?---Find it any way you wish.

I find it incredible?---But you've got to remember, the conversations that I had with Mr Brennan about the investigation was probably limited to maybe three at the outside, probably two.

I put it to you, inspector, that you are covering up?--- Covering up what?

The fact that you did discuss the association between the deputy commissioner and Q2?---I did not discuss the association between the deputy commissioner and Q2.

And your handling of the file at the Child Sexual Abuse Unit was a whitewash?---I think that the memorandums in place clearly demonstrate that my handling of this matter was open and accountable, and I will stand by that 100 per cent. At no stage did I do anything improper. At no stage did I do anything other than my job extremely thoroughly, and I think - - and thank God they are documented. I think the documents clearly demonstrate that.

MR HAMMOND: It was an exercise, as Senior Sergeant Miller said, in death by memorandum. Wasn't it?---When you look at the investigation file, for an investigation that went as long as it is, there is very minimal memorandums on it, and the majority of the one on the investigation file - - -

WITNESS: - - - the investigation file run between Italiano and Miller. What you're getting confused with, and others have, is the complaint file. Now, in context of the complaint file and the amount of memorandums on that this is a very small complaint file. So you're dealing from a dearth of experience in this matter, Mr Hammond. You know, you have no experience in these matters and I assure you that as a complaint file it's a minimal file for memorandums, and as far as an investigation of this nature goes that spanned, as it turned out, over a period of 12 months or more there's a minimal amount and most of that traffic is between Miller and Italiano.

MR HAMMOND: Notwithstanding my dearth of experience, you haven't answered the question. This was a whitewash by you?-- -Well, I think that I have answered that adequately.

Do you deny - - ?---What do you see - -

Do you deny that proposition?---What do you base that on, Mr Hammond?

I'm asking you to answer a very simple question. Do you - - ? ---Absolutely.

- - deny that it was a whitewash?---I did nothing more than my job. There is no whitewash here and I cannot for the life of me see what you can base that on, and I sit here with absolute confidence that anyone, any reasonable thinking person who examines all of the material on this, could not come to this conclusion.

You would agree, wouldn't you, that it's pretty rare for four serving police officers to make allegations of corruption about senior police officers?---Certainly. It's a very unfortunate situation to be in where this happens to yourself, particularly when it's baseless.

Do you agree that it's rare?---Look, I wouldn't really know because I've never been at professional standards. They might get complaints like this all the time - I mean, I don't know - but for four members to go out public like this, yes, certainly in my memory it is rare, and on such a baseless case I would suggest it would be even more rare.

I have no further questions, Mr Commissioner.

COMMISSIONER: Yes. There's just one matter, superintendent. You made a reference in passing to the existence of a complaint on the materials that you looked at for your review. To your recollection, was there any evidence of an early complaint on the part of Q1 in this matter?---No. As I recall, and again it's on my recollection, there was no evidence of early complaint in relation to the matter.

COMMISSIONER: Yes, thank you. Mr Power?

MR POWER: Thank you, sir.

CROSS-EXAMINED BY MR POWER:

MR POWER: Mr Caporn, you have said that you were away for part of the period of the investigation on an officer development course. When was that?---The entire period of September. I actually didn't arrive back there until about the first week of October, I believe it was.

Do you know if the eastern states based psychologist who was referred to on Thursday and the possible second complainant who Ms Italiano wanted to travel east to speak to were in fact spoken to?---Yes. Both of those matters were cleared up. One of the - - it's on the running sheet. The complainant in relation to the possible second complainant was spoken to by Q1. It's been reported on the running sheet that that person had stated that Q2 had done nothing to her and that was the end of that, and in relation to the New South Wales psychologist there's an entry on the running sheet that she's been spoken to by Detective Italiano and that she remembers Q1; but that's it, and that's the words that were used, and that she destroyed all the documents in relation to that matter.

And this is what set of running sheets?---This is the running sheet kept by the investigation team on the Q1/Q2 file.

And these notes were made in whose handwriting?---It appears to be Detective Italiano's.

We know from your evidence that Mr Miller was counselled on the 10th of November 1998 about allowing this investigation to proceed as far as it had without a proper review of the evidence. As the officer in charge of the Child Abuse Unit at that time, what - - -

MR POWER: - - - at that time, what, in your opinion, should he have done?---You need to be working your whole team, that those sort of checks and balances are in place. The situation was then that Constable Italiano had been appointed as an interviewing officer and really had assumed the role of also being case manager in relation to it. If you're going to let that happen you have to put checks and balances in place to make sure more senior people are thoroughly examining the brief. It's not good enough to just accept that the officer is telling you that these things are in place; you need to check them. Particularly at the critical issues, when the critical issues are there, particularly as it was on the 2nd of November when they were going to arrest Q2, whether he said anything or not. If those checks and balances had have been in place this would have been properly supervised, properly inspected and it would never have got to the stage where they were going to carry out what they were going to carry out.

Now, had you been advised of those concerns raised in the 25 August 1998 memo from Ms Italiano to Mr Miller, at or about that time rather than 3½ months later, what would you have done?---An official investigation file would have been started on that. You had a situation where you had both the complainant, Q1, and Detective Italiano with obviously at least - - at the very least a very strong perception that there would be interference by the deputy commissioner. That needed to be dealt with. (...name suppressed...) and others that were at the meeting needed to be interviewed, and the matter needed to be formally investigated and then everyone advised of the outcome of that in relation to whether there had been established that this could lead to some interference in the investigation. It would also have raised it to the level where then we would have been - - it would have gone from the knowledge that Mr Brennan was involved or had been in bike rides with Mr - - with Q2 to another extent where it was actually suggested by the - - Q1 and suggested by Detective Italiano that there was going to be interference in this investigation.

You've expressed the view that the non-action by Mr Miller in respect of the 25 August 1998 memorandum had an impact on the whole event, as you described it. In what way do you believe that an earlier disclosure of that memorandum could have influenced the perceptions of those who had those concerns?--- Well, that matter would have been dealt with at the time, so it would have been dealt with 3 months prior to any of this getting to the point where it was going to be on the point of arrest. And therefore those matters would have been addressed up front and it wouldn't have been a situation where people are being told that there is a good brief in relation to the matter, then all of a sudden the hand comes from down above and, as has been suggested in these proceedings, that, you know, I do a review and all of a sudden I find that there is no evidence. I mean, what you have there is a growing perception of some sort of conspiracy theory, and then that leads to obviously the things that happened after that as well in relation to the investigation where, at the end of the day, there was no sustainable charges laid against Q2. So my point is this; it should have been dealt with up front at the time. It should have involved the complainant, it should have involved the people who were suggested to have heard and seen things, it should have involved Detective Italiano. If that had have been thoroughly investigated either by within the area, by the divisional office or, as it probably should have been, given the person who it was aimed at, by the professional standards area, then I think that the complainant would have seen that we were very serious about any such allegation being made about interference in a case.

MR POWER: Mr Commissioner, I don't have much more. May I continue?

COMMISSIONER: Yes. Certainly.

MR POWER: Thank you. (TO WITNESS): Knowing now of Q1's impression of your second or third telephone call to her - whichever it was - following the meeting that she and her husband had with you and Mr Atherton on the 8th of December, and with the benefit of hindsight, would you have handled that telephone call differently?---Oh, with the benefit of hindsight I would have probably got someone to go and see Q1 rather than dealing with it on the phone. I mean, she's been subject to fairly significant emotional trauma over a number of years now, and in hindsight and hearing Q1 give evidence, and the perception that she had in me trying to achieve a decision, absolutely I would do it differently.

Notwithstanding that, what would or could have been the consequences of your not following up obtaining a decision from Q1 on her written complaint of the 1st of December 1998?- --Well, I'd already been - - from the time that I made the telephone contact I'd already been basically waiting a decision in relation to this complaint, which is basically aimed at the deputy commissioner - - -

WITNESS: - - - the deputy commissioner. Far more, could it be seen, and far more innuendo could have been laid, that the matter was being covered up if I didn't get a decision and didn't move it on and as I point out, regardless of what the decision had been, if the decision had been not to go ahead, I still would have sent all those reports and my report to professional standards with a view of Mr Miller being formally counselled for the August 25th memorandum issue and for the - - for the investigation to be filed, because basically my preliminary work has really conducted an investigation.

MR POWER: And finally, given what you have already said in answer to questions from my learned friend Mr Hammond, with the benefit of hindsight, Mr Caporn, do you have any overarching criticisms about the way in which Miss Italiano conducted the investigation, or Mr Miller's supervision of it, other than what you've already said?---No. I think I - - I've pretty much covered it, except to say that the whole issue of how that area was operating, and the structures, the levels of supervision, have all been dealt with down there. There's been major reforms. They've been given additional resources, additional structures have been put in place. The management team has - - a new management team has been put in place and those matters, where interviewing officers, for example, both interview the complainant and then take the role as case manager - - that does not occur now, and neither should it occur. It's not fair on the interviewing officer.

Mr Commissioner, I have nothing further. Thank you.

COMMISSIONER: Yes. Thank you. Yes, Mr Pettit?

MR PETTIT: Just very briefly, thank you, Commissioner.

RE-EXAMINED BY MR PETTIT SC:

MR PETTIT: Superintendent, do you know who it was that decided that Detective Hawes should take up the file in, I think, January of 99?---It was the management team in place at the Child Abuse Investigation Unit. I can't put it down to a particular person, but certainly I had no involvement in that decision.

Were you made aware of the reason for it?---I was aware that Detective Italiano had some time previously achieved a promotion to detective and was being transferred at the end of her leave. So I was aware of that. I was also aware that Detective Ingham had - - was leaving the area. He left around the same time, of his own volition, in relation to something else he wanted to pursue. The only aspect that I might have had input into was that I wanted someone, other than an interviewing officer, conducting the investigation.

MR PETTIT: Was the appointment of Detective Hawes deliberate in the sense that it ensured that the file did not go to any particular person, other person?---No. No. I mean, I had no involvement. That was an issue for the team to sort out in relation to who would get that. That decision would have been made by the management team at the time and that would have been Senior Sergeant Miller, Inspector Brandham and others involved in that decision, not - - not, certainly, myself. And I don't know Detective Hawes. I've had - - probably spoken to her twice in - - in probably the last 5 years.

Thank you, Superintendent. Nothing further, thank you, sir.

COMMISSIONER: Yes. There is just one question that I should have asked before, Superintendent. That's in relation to Detective Italiano. When she moved into another area, would it be common - - would it be usual to allow her to continue with the file, or would that remain in the Child Abuse Unit?-- -With some of the interviewing officers when they go back, if - - the secondments for the interviewing officers is worked on either a 12 month or 2 year basis, depending on what the situation was.

Yes?---If they were going back into an area where they were going to be continually doing those sort of offences, to support that local business area then we may allow that. Where someone is promoted to a detective and goes out of the area it's a situational basis, case by case. But certainly in this case, it would have been - - and it wasn't, but if I had been asked I would have recommended that an investigation of that nature remained within the central area.

Yes. Is there anything that arises out of that, Mr Hammond?

MR HAMMOND: No, thank you, sir. Sir, the only question I have - and it doesn't relate to - - it relates to some earlier questions, is - - I know it's not my role to tender documents but I did want to put to you, maybe through counsel assisting, the Operation Cathedral information.

COMMISSIONER: Yes.

MR HAMMOND: It related to a significant part of the questions that I asked.

COMMISSIONER: Yes. It was really part of the questioning. I think we'd accept that.

MR HAMMOND: Thank you. I only have this copy.

COMMISSIONER: Yes. Well, thank you, Superintendent. You're excused from further attendance under the summons.

WITNESS WITHDREW

16/09/2002 CAPORN, D.J. XXN

COMMISSIONER: Yes, Mr Pettit?

MR PETTIT: Commissioner, we are going to press on without a break this morning, I take it? The reason I ask that is, we have one further witness who should take only a short time and he's gone to some trouble to be here without a summons.

COMMISSIONER: He's here now, is he?

MR PETTIT: He is here now, sir.

COMMISSIONER: Yes.

MR PETTIT: I'd like to bring him in.

COMMISSIONER: Well, I think you can carry on if he's a short witness.

MR PETTIT: I call Paul Lines, please.

COMMISSIONER: Could I have your full name please, Mr Lines?

MR LINES: Paul Alan Lines.

COMMISSIONER: Do you have any conscientious objection to taking an oath on the Bible?

MR LINES: No, I don't.

COMMISSIONER: Thank you.

PAUL ALAN LINES sworn:

COMMISSIONER: Yes. Thank you. Sit down please.

EXAMINED BY MR PETTIT SC:

MR PETTIT: Thank you. Your full name is Paul Alan Lines?--- Yes.

And you are currently the principal weights and measures officer with the Department of Consumer and Employment Protection?---That's correct.

And I think you've been at the department just this year?--- Yes, indeed; February this year.

Prior to joining the department, you were an officer of the Anti-Corruption Commission - - -

MR PETTIT: - - - Anti-Corruption Commission?---I was an investigator with the Anti-Corruption Commission, yes.

You began there in December 1998?---That's correct.

And finished in December 2001?---Yes.

While you were with the Anti-Corruption Commission, you had some involvement in a complaint relating to the persons called Q1 and Q2 in these proceedings?---Yes, I did.

I think, at the outset, you had some involvement with an initial complaint by Q1?---That would depend what - - there were two complaints that the ACC looked at in respect of this matter. The initial complaint, no, I had no involvement with. The, what I will refer to as the second complaint, then that's where I became involved at the outset.

And as part of your involvement, you spoke, I think, outside the commission premises to Constable Italiano?---That's right.

Where did that occur, and why?---I can't remember when it occurred, or where it occurred. That would be recorded in the journals that were kept at the ACC, and are still there now. The meeting took place at Cris Italiano's request, in respect of the matter that's before the Commission at the moment.

And in short, there were things she had to tell you and that's why the meeting was called?---Yes, indeed.

Was any other person present at the meeting?---I know that Detective Connoley was with Cris on a number of occasions. I can't remember whether she was there at that time. I believe she was.

You've become aware, I think, that evidence has been given that you said to Ms Italiano that she should watch her back?-- -Yes.

Do you recall saying that?---I don't recall that specific comment. However, it's certainly something that sounds like something I would say.

And can you help us in why you would have said that to Detective Italiano?---It's not something I said specifically to Detective Italiano. It's something that - - or words to that effect that I would say to people effectively whistleblowing to what was the ACC, or what is the ACC. At the time there was no effective whistle-blower legislation in WA and it would have been said by way of "Watch your back. You're dealing with high-ranking officers", in the case of Cris Italiano. In the case of people within the Public Service, "Watch your back, you're dealing with people in positions of power".

MR PETTIT: Did you have any information about any specific threat to Ms Italiano's career or person?---Specific threat, no.

Did you have in mind any specific superior officer when you made the observation?---No.

Were you aware of any circumstance which should have caused Ms Italiano to be careful of her welfare?---Not specifically, no. Because of the position that I held at the ACC, I was aware of circumstances where whistle-blowers had had either their well-being, the jobs, their position threatened, either directly or indirectly.

There's also been some evidence that suggests that someone entertained the possibility that Mr Brennan, Deputy Commissioner Brennan, and Mr Looby, Kevin Looby, approached the ACC. Are you aware of that suggestion?---Approached in what manner?

In order to make some sort of representation to the ACC about the ACC's conduct of this investigation?---I have no knowledge of that at all.

Have you ever told any person - -?---No.

- - that those two officers did attempt to bring pressure to bear on the ACC?---No, and if they had, I would suggest that the ACC, particularly the chairman, Mr O'Connor, would have made that very, very clear. It would certainly have been looked at in a matter stand-alone at the ACC, if that were the case.

And why do you say that?---It's - - the suggestion that two senior officers would approach the ACC, which is a body effectively looking into their conduct - -

WITNESS: - - - into their conduct, just seems ridiculous.

MR PETTIT: You said earlier that you were aware of other cases in which a whistle blowing officer may have suffered as a result of his or her action?---Yes.

That's, I take it, in matters completely separate from the Q1/Q2 file?---Yes.

What matters did you have in mind?---I'm not sure of the position that I hold here, given the position I held at the ACC. There was certainly a matter that was looked into by the ACC concerning police officers and another that specifically comes to mind in respect of - -

Well, don't give us any names but can you tell us the circumstances?---I'm aware of one operation which was referred to as Eucla. As to the names involved in that, no, but there was suggestion there that pressure had been brought to bear on the complainant by senior officers. There was a separate matter which concerned a mid-manager with the then Ministry of Justice. There was a suggestion that one of the directors then brought pressure to bear and subsequently removed him from that position as a result of complaints made to the ACC.

That second one is a non-police matter, I take it?---It's a non-police matter, yes.

Thank you, Mr Lines.

COMMISSIONER: Yes, Mr Hammond? Do you have any questions?

MR HAMMOND: No questions, sir, but it wouldn't be appropriate for me to question in any event, sir, because I must explain that I have had a solicitor-client relationship with Mr Lines so it would be a breach of that. So I'm in a very difficult position.

COMMISSIONER: Yes.

MR HAMMOND: So maybe if I could speak to counsel assisting.

COMMISSIONER: Yes, very well. Mr Power, do you have any questions?

MR POWER: No questions, thank you, Mr Commissioner.

NO CROSS-EXAMINATION

COMMISSIONER: Yes, thank you, Mr Lines.

WITNESS WITHDREW

.16/09/2002 LINES, P.A. XN

MR PETTIT: Commissioner, that's the last of the witnesses for the time being. There remains a couple of matters to resolve so it's appropriate that the matter be adjourned.

In addition to Mr Lines there is one other matter I should draw to the Commission's attention. ion. Detective Sergeant Bill Mansas also approached the Commission officers late last week with a particular concern in respect of a possible inference that the Commission might draw - namely, that the investigation of Q1's complaint was expedited on account of Q2's public profile. Mr Mansas was the officer who decided to investigate promptly and he says that the decision turned on the occupation of Q2 at the time and certainly not on his profile.

Now, that point, Commissioner, is of concern, understandably, to Detective Sergeant Mansas but it is not otherwise relevant to the matters to be inquired into and in the result I undertook to make public Mr Mansas's position.

The next matter that should be aired, Commissioner, is that on the weekend a report, Mr Gary Adshead, has brought to light that Deputy Commissioner Brennan may have been involved in two cycle rides from - - -

MR PETTIT: - - - two cycle rides from Albany to Perth, and further that the photograph which was shown in evidence last week may be a photograph taken in 1997 rather than as we had assumed in nineteen ninety - - in 1997 rather than as we assumed in 1998, and that seems to be correct. We'll pursue the point a little further and the publication to which Mr Adshead referred can be tendered later.

It's, as I say, Commissioner, appropriate, in my submission, to adjourn the hearings at the moment. There is a list of documents which has, as I'd understood it, been made available to my learned friends. That list is very comprehensive. It includes all documents - - just about all documents which have any bearing on the matter, and that's done for completeness. Counsel will be able to request access to any of those documents; that will, of course, be on the same conditions as usually obtained, namely that the documents are not to be released or provided to any other person and are not to be used for any purpose other than the present inquiry.

Lastly, Commissioner, can I suggest - and this has been raised again with my learned friends at the bar table - the - - and this is also in accordance with the Commission's procedural directions, Commissioner. I propose that the following timetable be directed. Firstly, that the written submissions of counsel assisting in the matter be made available to persons who may be adversely affected on or before the 14th of October. I should add that it's my intention to include in those submissions an amended list of documents, amended, that is, to include only those documents which are to be tendered, and that's something my learned friends can comment on or contact us about.

The second direction I propose is that written submissions in reply by other counsel should be lodged with the Commission by the 28th of October and lastly, if required, oral submissions can be made to the Commission on Monday the 4th of November 2002. And again, I would urge my learned friends to raise that with me well prior to the event.

Lastly, Commissioner, the next hearings of the Commission will be the resumption of the hearings into the members of the Armed Robbery Squad in relation to the Supa Valu robbery on the 28th of April 1997. Those hearings will resume on Monday the 23rd of September, and we ask that the hearings of the Commission be adjourned until that date.

COMMISSIONER: Yes. There's one other matter that I think I should raise with you, Mr Hammond, and that's in relation to Q1. You'll recall that I indicated that the Commission was not concerned with - - well, it couldn't be concerned with the determination of the circumstances which existed between Q1 and Q2 - -

MR HAMMOND: Yes. COMMISSIONER: - - because that would involve a criminal trial. I was not intending to cut Q1 out of the possibility of - - -

COMMISSIONER: - - - out of the possibility of expressing the fact that she, as she apparently is, strongly denies any assertion of Q2 that there was an affair between herself and Q2.

MR HAMMOND: Yes.

COMMISSIONER: That can either be done by, if she wants to, to give evidence, but it would be sufficient for my purposes if you were to write a letter in, saying that you were authorised by her to inform the Commission that she strongly disputed the evidence of Q2 on that point.

MR HAMMOND: Mr Commissioner, I think she would be very grateful if she could do that.

COMMISSIONER: Yes.

MR HAMMOND: I'm sure that offer will be taken up.

COMMISSIONER: Yes. Very well.

MR HAMMOND: Thank you, sir.

MR PETTIT: Commissioner, I'm grateful that that matter has been raised, because it perhaps does require something by way of explanation from myself.

COMMISSIONER: Yes, very well.

MR PETTIT: I wanted to assure Q1 that that evidence came out and was pursued shortly because it related to the explanation given by Q2 as to why he might have been unsurprised by the police attendance. It had nothing to do, I can assure Q1, with any desire otherwise to intrude into that area.

COMMISSIONER: Yes. Thank you, everyone. We will adjourn now.

AT 11.35 AM HEARING ADJOURNED UNTIL 9.45 AM MONDAY, 23RD SEPTEMBER 2002

16/09/2002

ROYAL COMMISSION INTO WHETHER THERE HAS BEEN ANY CORRUPT OR CRIMINAL CONDUCT BY WESTERN AUSTRALIAN POLICE OFFICERS
COMMISSIONER: G.A. Kennedy AO QC

Held at Perth on the 12th day of September, 2002

Counsel Assisting Mr K. Pettit SC

Appearances Mr J.C. Hammond (with him Ms Pepe)

Mr A.J. Power

Mr W.M. Bryant

AT 9.46 AM HEARING COMMENCED:

COMMISSIONER: Yes, Mr Pettit?

MR PETTIT: Thank you, Commissioner. I call John Brandham.

COMMISSIONER: Could I have your full name, please?

MR BRANDHAM: Francis John Brandham.

COMMISSIONER: Do you have any conscientious objection to taking an oath on the Bible?

MR BRANDHAM: Absolutely not.

COMMISSIONER: Thank you. If you could take the Bible and read the oath aloud, please?

FRANCIS JOHN BRANDHAM sworn:

COMMISSIONER: Yes. Thank you. Sit down, please.

EXAMINED BY MR PETTIT SC:

MR PETTIT: Your full name is Francis John Brandham?---Yes, it is.

But you are commonly called John?---Yes. That's correct.

And you're a serving officer?---Yes, I am.

And your rank is inspector, is it?---Inspector. Yep.

Where are you now stationed?---At the Internal Affairs Unit.

Are you able to - - when did you join the force?---Nineteen seventy - - 1976, as a cadet.

Mm hm?---January 76.

Are you able to give us a short version of your career history in the force?---I was a cadet for 18 months, went through the police school in 1977, went to Victoria Park Police Station for 3 years, 79 Division, joined the CIB as it was then in 1982, served at the Drug Squad, Fremantle detectives, Motor Squad, Major Crime, which then became Homicide Squad, sort of was transferred to Fremantle but then the Macro Taskforce happened and was involved in that. Worked for Bob Kucera for a little while and went down to take over the Shoalwater Taskforce and acted as inspector at Personal Crime Division, promoted to senior sergeant, went out to Cannington for 2 years and then was promoted to inspector about - - just over 2 years ago. And I've served at - - when I was promoted to inspector I was transferred to Internal Affairs Unit, and in the last - - oh, from September the 1st 2001 I was at the Zircon Taskforce as senior investigating officer.

MR PETTIT: Well, perhaps we should take up the story at the time of your - - I think your addition to the Shoalwater - - Operation Shoalwater?---Yep.

That occurred in 1998?---It did, yes.

About what month?---About May, from recollection. I was working with Mr Kucera at the Metropolitan - - Metropolitan Regional Office as his crime coordinator, and I was told that I was to go down and - - and assume command of the Shoalwater Taskforce which was investigating the murder of Gerard Ross.

And you were to replace Detective Sergeant Miller, I think?--- Detective Senior Sergeant Miller, yes.

And he at that point returned to Child Abuse Unit?---Yes, he did.

And you assumed operational command, was it, of that Operation Shoalwater?---Yes.

That lasted for how long?---I remained operational commander through till the inquiry returned to Perth, basically, which was through till the December, but in - - in September of that year I was assigned other responsibilities as an acting divisional officer at the Personal Crime Division, and I assumed management, I guess, of the Sexual Assault Squad and the Child Abuse Unit.

The Gerard Ross murder inquiry was seen as child abuserelated, I think?---Yes.

Which explains why Detective Senior Sergeant Miller was assigned to it for a period?---I don't know why Senior Sergeant Miller was assigned to it, but yes; it was obviously child abuse-related.

At the time you became an acting inspector, that was in, I think you told us, Personal Crime Division, is it?---Yes.

That was the time at which you assumed responsibility for the Child Abuse Unit?---Yes, that's right.

Where were you physically located in that period - - -

MR PETTIT: - - - physically located in that period?---Up until that time, I'd been down at Rockingham, at the Shoalwater Taskforce, and I think it was about the 5th of September I took up an office which was on the ground floor of the building that Child Abuse and Sexual Assault Squad were housed, which is on Adelaide Terrace.

Is that unusual, for an inspector in the Personal Crime Division, to take up an office in that building?---It hadn't occurred before. Having said that, there was - - there had never been a second divisional officer at the Personal Crime Division until that time. So I was like, I guess, a new inspector's - - a new inspector position and there was simply no accommodation anywhere else.

No accommodation anywhere else?---No, the eighth floor of Curtin House, which is where the administration is housed, was basically full. As I say, it was an extra position. I think it came from the days when an inspector was in charge of the Macro Taskforce.

Were you not placed in that position with instructions to particularly keep your eye on Child Abuse Unit, Sexual Assault Unit?---Mr Caporn and I discussed issues concerning the Child Abuse Unit in particular, and he asked me to go down there and oversee the management of the unit, have a critical look at it.

Isn't that the real reason for your physical location?---No, it wasn't the real reason for me being down there. As I said, it was simply an accommodation thing, but I was there to oversee the operations of the Child Abuse Unit, and Sexual Assault Squad.

So, as from, I think you said, 5 September - -?---Yeah, I think it was.

As from that date, what matters did you have under your responsibility?---I was still actively in charge of the Shoalwater Taskforce and I had oversight of - - or management, I guess, of Senior Sergeant Kevin Looby and his staff at the Sexual Assault Squad and Senior Sergeant Miller and his staff at the Child Abuse Unit. I reported direct to Mr Caporn.

I see. And that's the extent of the portfolio, is it?---That was the extent of my responsibility, yeah. The portfolio also included the Homicide Squad, and I think Major Incident Group, and Missing Persons.

And the chain of command as from 5 September, I presume, is that Mick Miller and - - is it Kevin Looby?---Kevin Looby, yeah.

Kevin Looby reported through you?---Yes, that's correct.

MR PETTIT: And you to Mr Caporn?---Yes. That's correct.

Do you recall when you first became aware of the file involving Q2? You're aware, are you, that during these proceedings we're referring to the original complainant and Q1 and the person complained of as Q2?---Yes.

Try and keep that in mind, if you will?---Yes.

Do you recall when you were first made aware of the file on Q2?---It was early - - it was shortly after I arrived at the Child Abuse Unit, so it would have been within the first week.

And you were briefed by Mick Miller?---No. Actually, from memory, Detective Italiano and Detective Connoley told me about it.

At that briefing, were you told of any concerns that those officers had, apart from the briefing itself, on Q2?---Not - - I'm not sure. I honestly couldn't say.

During the period September through to October, there was a lot of intra-office activity on this file?---Yes.

Memos and so forth?---Yes.

And you briefed Mr Caporn on the matter concerning Q2 regularly - -

MR PETTIT: - - - matter concerning Q2 regularly?---There was - - not in the form of memos. I mean, there was discussions held between various - - myself and various people and certain things were told to me and I would then pass that on to Mr Caporn; not in the form of memos. Generally in the form of a discussion.

And there must have been a couple of hundred files at Child Abuse Unit?---I cannot remember how many files there were, but there certainly were a lot. In fact, that was part of the - - the - - part of what was examined by a review which was later conducted - -

Yes, I'll come back to that - -?--- - - to examine the number of files on hand.

And you certainly were not briefing Mr Caporn on all of those matters, all of the - -?---Not all of them. Some of them, certainly. Some of the other matters.

But it's fair, isn't it, that the Q2 matter was head and shoulders more interesting to Mr Caporn than the others?---It was a significant inquiry. Yes, for sure.

Why was that?---Oh, because of the person's profile, because of his - - the impact that the investigation was going to have, the media interest that the investigation would have, once - - if it became public.

Why is that a - - well, first of all, is that a sound reason for Mr Caporn and others to take an interest?---Absolutely.

Why?---Because of the impact that - - the importance of getting it right.

Surely it's important to always get it right?---It certainly is but obviously when there's going to be the enormous media attention that this would attract, it's more important to get it right. I mean, this had huge ramifications. I mean, if - - the impact would have just been - - I mean, it would have been in the media for weeks. It would have been the story of the year.

Have you seen, on other occasions in your career, senior officers take an interest purely because the person who is suspected has a high profile?---Well, I - - I mean, I don't know, but I would imagine when - - when Brian Burke was charged by the police, I would imagine that the Commissioner would have been fully briefed on every aspect of the investigation. So - - I mean, I can't say that - - damn. Sorry. I can't say that, but I know there's been instances where - - in homicide investigations, that we have briefed up the chain of command through to the superintendent.

MR PETTIT: Did anyone, apart from yourself - - well, first of all, did you attend personally on Mr Caporn in these briefings through September, October, November?---I'm sorry. I - -

You were briefing Mr Caporn in September and early October?--- Yes. Yes.

Was that in person or on the phone?---Oh, it would have been both. Generally in person.

Anybody else attend those meetings?---Oh, the - - Senior Sergeant Miller - - there were a number of people that attended the meetings. Senior Sergeant Miller was present on some occasions. There were a number of occasions between when the matter first came to my attention and when Q2 was interviewed. There was a number of occasions where other officers, including Detective Sergeant Ingham, Detective Italiano, myself, were involved in discussions and briefings with Superintendent Caporn.

During that period - and I mean prior to Mr Caporn calling for a complete copy of the brief - what was the nature of Mr Caporn's interest?---Simply to be advised of what was happening with it.

All right. You were aware that he in turn was briefing Mr Brennan?---I can't say specifically, but I - - I have a recollection that I was told that Mr Brennan had been briefed, yes.

MR PETTIT: Do you recall an occasion on which Detective Senior Constable Connoley and, I think then, Constable Italiano spoke to you about whether to proceed by summons or by arrest in respect of Q2?---It may have happened, yes.

You don't recall something of a heated discussion?---A heated discussion?

Yes?---Between myself and - -

Jo Connoley in particular?---No, definitely not.

Where she was adamant that the proper way to proceed at interview of Q2 was to arrest?---My recollection is that that was the plan. That was the plan up until - - my - - my recollection is that that was the plan, that he was to be arrested, until Mr Caporn reviewed the file.

Do you recall whether you had a view on whether there should be an arrest or to proceed by summons?---We had a discussion and it would be proceeded in accordance with standard procedure, which was - - yeah, just that it would proceed in accordance with standard procedure. I certainly don't remember any heated discussion at all. There was nothing to get heated over. It was a - - I don't recall anything of that nature.

You don't - - excuse me a moment. You don't recall pursuing an instruction that if he were to be charged it would be by way of summons and Miss Connoley being adamant that it should be by arrest?---There - - there was some discussion. Don't get me wrong; there was some discussion over whether he should be arrested or summonsed. There was some discussion over it but not heated discussion, and in the end my recollection is that - - it was he was to be treated like anybody else.

Miss Connoley tells us that she suspects that - - well, let me start again. Miss Connoley tells us that she directly told you that she would proceed to arrest even though it was your view you should proceed by way of summons?---I'm not sure when - - when is this - - if I'm able to ask, when is this supposed to have occurred because - -

In October?---Well, my understanding, and I've got notes that support that, is that Detective Connoley was not - - was not involved in the investigation as it progressed. Detective Sergeant Ingham had been assigned to interview Q2 with Miss Italiano and that occurred long before the decision was made to review the file.

Detective Connoley suspects that she was replaced by Detective Sergeant Ingham precisely because it was her view that there should be an arrest and - - ?---The decision - -

MR PETTIT: - - that's the reason you replaced her with Ingham?---Well, two parts to that. One, I didn't replace anybody, and the other part is, the decision for Detective Sergeant Ingham to head that investigation was taken by Senior Sergeant Miller. I was there but it was in consultation with the sergeants at the Child Abuse Unit, so I was present when a decision was made, and again I've got notes of that meeting.

Do you recall who was at that meeting?---Well, it certainly - - it was certainly Sergeant Miller and myself. I can't recall who else was there. I can't recall whether it was a decision - - I can't recall whether Sergeant Mansas was there or whether Sergeant Ingham was there - - -

WITNESS: - - - Sergeant Ingham was there, but I know it was - - it was in at the Child Abuse Unit and the decision was taken by Sergeant Miller and supported by me, because Mark Ingham was the obvious choice.

MR PETTIT: Around about 28th of October Superintendent Caporn decided to review the file in its entirety. Do you recall that?---Yes.

How did that come to your attention?---Mr Caporn informed me that he was going to review the evidence.

Did he tell you why?---Not that I can specifically recall, but I imagine it would have been in relation to the, as I said before - - the - - the potential impact that this matter could have on the service.

Were you party to any discussion about whether that should occur, or were you just told that it was going to occur?---I was told that it was going to occur, but I fully supported the fact that it was being done. I mean, it's standard practice as far as what I'd been used to.

Why didn't you do it?---I don't know. There was a lot going on at the Child Abuse Unit at that stage. There was the review had been done, there was issues concerning the Wood Royal Commission recommendations being implemented; there was a lot of things. I don't know why Mr Caporn chose to do it himself.

It would seem logical, wouldn't it, if there's some concern that it be done correctly, you would be the man to review it?- --Oh, Mr Caporn is a very hands-on superintendent. I've worked with him a lot since 95. I've just finished 12 months with him at Operation Zircon. I was with him for nearly 12 months at Macro. I've seen Mr Caporn review almost every major line of inquiry in those investigations. I've seen him spend time reviewing TI transcript, reviewing interviews between principal persons of interest. It's just the sort of person that he is. He just takes these things on himself.

Have you worked with him since he's been a superintendent?--- Yes. He was a superintendent when he was officer in overall command of Operation Zircon.

And your evidence is that, as a superintendent, he gets down to the level of examining TI transcript?---Absolutely. Absolutely. In every - - in almost every major line of inquiry he will review it, provide input, give officers - - give officers that are planning to do an interview - - actually involve himself and, you know, give them lines of inquiry to follow, give them, you know, avenues to - - ways of interviewing a suspect, that type of thing. It's just the sort of person that he is.

MR PETTIT: In any event, the file was copied in its entirety and given to you?---My recollection is that I was provided with a fair bit of stuff by Senior Sergeant Miller, but some of it was missed and I think Sergeant Miller took that up himself. There was a - - I took most of it up to Mr Caporn and I think there - - I've got notes of his - - he'd forgotten to give certain things and they were later taken up to Mr Caporn.

The notes you refer to; do you have them here?---I do, yes.

You're welcome to refer to them if you need. Perhaps you should. Now, I take it that from the time the file was provided to Mr Caporn, all other plans were put on hold?--- Yes. That's right.

In particular a planned interview was postponed?---Mr Caporn had instructed that nothing was to occur until he'd reviewed the file.

And he did that within a few days?---He did, yes.

And let you know that he had completed his review?---Yes.

And arranged a meeting?---Yes.

Did he tell you anything about his review prior to that meeting?---From memory, he had told me one on one that he had reviewed the file and that it was his view that there was insufficient evidence - - insufficient evidence to support - - support, well, prima facie evidence - - -

WITNESS: - - - prima facie evidence.

MR PETTIT: You, I take it, had not at any stage reviewed the file?---No, I'd been - - I'd been told certain things by members of the Child Abuse Unit, but I'd not reviewed the file myself, not read the evidence of Q1 or reviewed anything else.

Throughout this entire matter, you have not ever turned your mind independently to whether you thought there was sufficient to proceed?---No, I haven't.

A meeting was called on the 10th of November. I think your report actually has it at the 11th, which I suggest to you might be an error?---Yeah, the 10th of the 11th, I have it.

That's a Tuesday, is it?---Tuesday, the 10th of the 11th.

And you took notes of that meeting?---Only brief notes. Just the fact that Mr Caporn briefs all, as in - - and I have himself, Senior Sergeant Miller and Detective Italiano, "Briefs all on review and including Vickers."

Yes. I think you've subsequently made a report about this matter. You reported to Mr Caporn by memo of 8 December. Do you recall that?---Yes, I recall the -

Perhaps we could have a look at it? It's D1012885. While that's coming up, though, I want to ask you in particular about the instruction that Mr Caporn gave on that day. I think Mr Caporn expressed the view that there was insufficient evidence, you've already told us that?---Yes.

And that it was necessary to proceed to an interview?---Yes.

What instruction did Mr Caporn give about the interview? Or its aftermath, I should say?---I can't specifically recall.

Do you have it noted? If you don't, we can turn to your report, at page 5. Perhaps if we start at page 4 to get the context. You'll see, towards the bottom of the page, you've written, "On Tuesday, November 11 - -" which as I indicated earlier I think should be November 10?---Yes.

Then: "

- - Acting Detective Superintendent Caporn called Detective Senior Sergeant Miller, Detective Italiano and myself to a meeting - -"

Just pausing there, wasn't Detective Sergeant Wibberley also in attendance?---He may have been. I'm not certain.

MR PETTIT:

"- - with him regarding the completion of his review. At that meeting, he outlined the results of review along the following lines."

And you set out a number of dot points. If we go to the next page, the last of the dot points, I think, is the instruction I'm presently concerned with. You've written:

"He further instructed that no matter what came from the interview, no action was to be taken against Q2 until he had further reviewed confessionable material."

WITNESS: Yes, that's correct.

MR PETTIT: "Confessionable material", I presume you mean, if any?---If any, yes.

Now, to outsiders, that does appear an unusual - or I suggest to you it may appear - - an unusual direction, that even if the suspect confesses, he is to be released. Did it not strike you that way?---Not really, no. I mean, under the circumstances - - under the circumstances that prevailed at that time, I found it to be a legitimate instruction.

MR PETTIT: What circumstances?---I believe that the officers involved did not accept the fact that the DPP had reviewed the matter and said that there wasn't sufficient evidence at that stage to proceed. I believe that - - that they had lost perspective in relation to the matter and that they simply couldn't be trusted to do the job properly. So Mr Caporn - - I mean, that's my perception of it; that Mr Caporn made it quite clear that nothing was to happen until he had had a chance to review the material.

Perhaps we should go through all of your dot points in this report. If we go back to page 4 please, the first one is - and the "he" I think refers to Mr Caporn throughout:

"He had examined the evidence and found that these offences had more than likely occurred in the manner described by the complainant, examined all the alleged corroborative material associated with the brief, and found that they did not support the alleged crime. He found that the only evidence against Q2 was a statement of the complainant which had been made more than 20 years after the events concerned. He found there was insufficient evidence to proceed with charges against Q2 at this time in the absence of other supporting evidence. He had raised all the evidence concerning this matter in collaboration with Miss Evelyn Vicker, senior prosecutor with the Office of the Director of Public Prosecutions. Miss Vicker had concurred with his findings. He had questioned as to what other avenues of inquiry could be explored in order to obtain supporting evidence."

Just pausing there, do I understand from that that Mr Caporn questioned those at the meeting about what other avenues of inquiry could be pursued?---I can't specifically recall that, but yes, that's what I imagine would have occurred.

Continuing:

"He stated that in the absence of other supportive material, there was a need to obtain admissions or a confession from Q2 in order for any charges to succeed. He raised serious concerns that the Child Abuse Unit had intended charging Q2 under the current circumstances. Instructed Detective Senior Sergeant Miller to review procedures within his unit in order to ensure that this situation did not occur again. He instructed that Q2 was to be interviewed by members of the Child Abuse Unit with a view to gaining confessional evidence to support the alleged offences."

And then lastly, the one we've mentioned:

 "He further instructed that no matter what came from the interview, no action was to be taken against Q2 until he" - that's Mr Caporn - "had further reviewed the confessional material."

Now, in that context, it's your evidence that the last instruction was proper?---Absolutely. Yes.

MR PETTIT: And it was proper in the circumstances - tell me if I've misunderstood you - that he, Mr Caporn, had come to the view that officers had lost perspective, or is that your interpretation?---I suppose it's my - - it is my interpretation because I didn't actually review the file myself. So yes, it would have been Mr Caporn's view, based on what I've said there in the report and also from my - - the way I viewed how - - how everything had unfolded.

Did the other officers present - - that is, Italiano and Miller, was it?---Yes.

Do I understand your evidence to be that they showed resistance to Mr Caporn's statement that Evelyn Vicker agreed with him?---Yes, because they actually went up and had a meeting with John McKechnie over the matter.

Yes, but was something said at this meeting to give you that impression?---I can't recall specifically. I remember there was - - there was a resistance to the review shown by Senior Sergeant Miller in the first instance. So it was natural that if there was a resistance to the review being done, it just flowed on from there - - -

WITNESS: - - - flowed on from there. But I can't recall specifically whether anything was discussed at that meeting.

MR PETTIT: It's been suggested to the Royal Commission that the instruction by Mr Caporn was tantamount to closing the file. What do you say about that?---Absolutely ridiculous. That's rubbish. I mean, it was - - it was to progress properly. Mr Caporn instructed that an interview was to be conducted with Q2, that all other potential avenues of inquiry were to be pursued in an attempt to find some corroboration for Q1's deposition. As it says in my report, Mr Caporn believed that Q1 believed what she was saying in her evidence - in her deposition.

Were you subsequently asked for clarification of that instruction by Detective Italiano?---For clarification. I have a - - I have a note, which is later on in the day, where I spoke with Detective Italiano where it just simply says in my notes that she's very accepting of the decision. Just raises her concerns regarding the covertness of the interview with Q2.

What concern was she expressing there?---I'm not sure. Just simply the fact that - - I assume simply the fact that the date that the interview was to occur would remain in-house.

I see. Her concern was that it be kept a secret?---Yes.

Exactly what does your note say about her concern?---Sorry?

About Ms Italiano's concern?---It simply says:

"Speak with Cris Italiano. Very accepting of decision. Just raises her concern re covertness of interview."

And "accepting of the decision"; it's on the same day as the - - as the - - as Mr Caporn said that the matter was not to proceed further. That he'd done the review, etcetera.

From there, plans were progressed, I take it, to interview Q2?---Yes. That's correct.

You were a party to those?---Not really. As I say, I was just kept informed as to what was happening.

And an interview was planned for very early in the morning of the 17th of November?---That's correct. Yes.

And it was very early in the morning in order to try to keep the fact a secret?---Yes.

MR PETTIT: And just explain to us why that was a concern. Why it should be kept a secret?---Again, it was about the profile of the person. That was one of the concerns that springs to mind. I can't think of any others. It was kept within a very close-knit group within the Child Abuse Unit too, so I think it was - - I have a recollection that it was to be done, you know, so that no one outside of the investigation would know about it as well.

You were present when Q2 was brought in?---Yes, I was.

Why was it necessary for an inspector to be present?---I was just asked to be there by Mr Caporn to oversee proceedings.

Did you oversee proceedings?---In a - - in a non-involved manner. I just basically - - it wasn't my office. I just basically was there.

Were you told why you were to attend to oversee the interview?---Well, it was to make sure Superintendent Caporn's instructions were carried out.

Those instructions being to release Q2 - - ?---Yes.

- - no matter what occurred?---That's correct. And - - and to - - to provide feedback to Superintendent Caporn, had - - had - - you know, on what had occurred - - what occurred on that particular day.

There was a sense, was there - - -

MR PETTIT: - - - a sense, was there, from Mr Caporn that the officers who were to conduct the interview could not be trusted to carry out his instruction?---It's difficult - - it's difficult to say what the exact reason was. I suppose what you're saying is correct. I mean, that's - - I guess that's why I was there, to make sure that his instructions were adhered to.

Well, you'll have to explain that a bit further because I don't think we've heard that evidence before. What was it about the behaviour of Ingham or Italiano or Miller which gave rise to any such concern?---I can't - - I can't honestly say what was in Superintendent Caporn's mind. I think - - there had - -

Let me put it this way: were there differences of view about the sufficiency of the evidence expressed by those officers?-- -Yes, there was. Those officers believed that there was sufficient to charge Q2, even without any admissions.

Is that sufficient to oversee them on the day?---Well, I think so. I mean, that's what - - that's what a supervisor's role is, is to make sure that people are doing as they've been instructed.

What did you intend to do? Watch the interview and as soon as it had finished go into the room and ensure that he wasn't arrested?---No. As I say, my role there was simply - - was purely oversight. It was just to provide feedback to Superintendent Caporn as to what had occurred and to - - just to make sure that things went according to plan, according to the instructions.

Did you sit and watch the interview?---No.

In any event, were you present when the interview was terminated?---Yes, I was.

Did you take the phone call from Mr McPhee?---No, I didn't.

Did you knock on the door?---Not to my knowledge I didn't. I think Detective Senior Sergeant Miller stopped the interview.

Were you present during a conversation between and Ingham? ---No. I wasn't at the interview room when the interview was stopped.

So did you see any of those events?---No.

You were told about them later?---I was in the office. The interview room is at the end of the office. I was somewhere in the office but I wasn't present there when the interview was stopped.

MR PETTIT: Do you have a view on the propriety of terminating the interview at the request of a lawyer?---Absolutely. It's exactly what should be done.

Even though the person being interviewed did not at that point make a request?---The solicitor making the contact made the request and my recollection is that he made the request to speak to his client, and once that occurs, I mean, that's - - it goes without saying that that's what occurs.

Shortly after that interview I think you instructed Detective Italiano to speak to Q1. I may have that wrong actually. That might have been Mr Miller who did that?---I don't recall taking any active part in telling people what to do that day.

Yes. I'll check that. Subsequently, Detective Italiano went on leave and I think the file was transferred to another officer?---Some time later, yes. She was - - Detective Italiano had actually been transferred - - -

WITNESS: - - - had actually been transferred prior to all this occurring. She'd actually been promoted to detective and had actually been transferred, prior to all this occurring, to City Detectives, and she'd actually been retained at the Child Abuse Unit so she could continue with this job. An agreement was made where she went on leave and when she came back from leave, she was to start at her new post.

MR PETTIT: Was any thought given to her retaining the file, notwithstanding the transfer?---Not that I'm aware of, no.

Were you party to the decision to transfer the file to Detective Hawes?---I can't specifically recall. I probably would have been involved in the decision in some way, but it was a decision that was taken within the unit, from my memory.

At that stage, had you known Detective Hawes from earlier contact?---No.

Did you know anything about her?---Not really, no.

Are you aware that she had very limited experience in child abuse cases?---My understanding is, is that she was a senior detective, an experienced investigator and any experienced investigator, no matter what offence is being investigated, knows what is required in relation to the burden of proof, what corroboration is all about. It's not a specific thing that's just associated with child abuse cases. So, she was considered well and truly capable of doing the job.

By you?---Certainly by the group that I was part of when the decision was made.

By you?---My experience with Detective Hawes was that she was competent and capable, but I hadn't had a lot of contact with her.

Thank you, Inspector. I think that completes all I wanted to ask you. Is there anything about the conduct of the matter that you think should be brought to the attention of the Royal Commission, and which you have not so far given evidence about?---Other than to say that - - no, no. Other than to say that it's very fortunate that Mr Caporn decided to review the file. Other than to make that point, no.

And you say that, for what reason?---Oh, because of the impact that this matter would have had on Q1, on Q2 and on the Police Service.

And you say that with the benefit of hindsight?---Absolutely, yes.

MR PETTIT: It wasn't particularly your view at the time, though?---I fully supported the review. I fully supported that - - as I said, I hadn't seen the case, so I don't know what evidence was there, but fully supported the fact that Mr Caporn wanted to review the file.

Thank you.

COMMISSIONER: Yes. Thank you. Mr Hammond? You may crossexamine the witness as to any evidence which impacts upon your clients.

MR HAMMOND: Yes. May it please you, sir.

CROSS-EXAMINED BY MR HAMMOND:

MR HAMMOND: Inspector Brandham, do you personally say that the case officers involved at the Child Sexual Abuse Unit had lost perspective in relation to this matter?---I think that the officers involved believed that there was sufficient evidence to charge Q2 and that they were wrong.

Do you say that they had lost perspective in relation to the matter?---I think I just answered that question.

So, you believe there wasn't enough - - it was your view that there wasn't enough evidence to prosecute this matter?---It was the view of a senior Crown counsel that there wasn't enough evidence to prosecute this matter.

Yeah, but you had never personally reviewed the file?---No, that's right

Which officers do you say were wrong, that were working on the case?---I was told that - - -

MR HAMMOND: - - - on the case?---I was told that - - that - - specifically that Senior Sergeant Miller believed it was a winnable brief, that Detective Italiano believed that there was sufficient evidence to proceed, and even Detective Sergeant Ingham believed there was sufficient evidence for it to proceed.

And you believed that they were all wrong?---I believed that the Crown counsel - senior Crown counsel made a decision that there was insufficient evidence to charge Q2, and I would say that that person, that senior counsel, is probably in the best position to make that decision.

And you went on to say, and is it your personal position, that these officers couldn't be trusted? Is that your personal position?---It was my position that that - - it was my position that they had to be overseen to make sure that Mr Caporn's instructions were carried out.

Because you couldn't trust them?---It was my position that we had to ensure that Mr Caporn's instructions were carried out.

Are you able to answer this question? Did you trust the case officers working on the file?---In what regard?

That they would do the job efficiently?---Which part of the job are we referring to? If you're referring to their ability to - -

I'm talking about the - - ?--- - - conduct the interview, or you're - - their ability to conduct an investigation, then I'd say yes, they were more than capable of doing that.

What aspect - - did you have any lack of trust in Constable Italiano at the time?---No.

No. In any respect whatsoever in relation to her performance?---No.

Did you have any lack of trust in police officer Connoley at the time?---At the time I'm not sure what Detective Connoley's role was in this.

Did you have any lack of trust in her?---No.

In respect to any aspect of her performance?---No.

Did you have any lack of trust in police officer Miller?--- Yes.

In relation to his performance on this file?---Yes.

MR HAMMOND: And what was that lack of trust?---Well, basically he had a problem remembering instructions that were given to him.

So you didn't trust him?---What do you mean by trust?

That you had no faith in him as an officer?---No, that's not true at all.

Did you have any lack of trust in Mr Mansas? Police officer Mansas?---I'm not sure what Mr Mansas's role in this was.

But he was at the Child Sexual Abuse Unit at the time that you were there?---Yes.

Did you have any lack of trust in him?---Again, what do you mean by trust?

You used the word?---Yeah.

Did you have any lack of trust in Mr Mansas?---In relation to the performance of his duty?

Yes?---In this particular matter?

Yes?---I don't know what his role was in this particular matter.

So I can put it to you that you didn't have any lack of confidence in Mr Mansas in relation to this matter because you didn't know what his role was?---I don't know what his role was, no.

So it's not your evidence, is it, that the four officers - - all four officers couldn't be trusted?---I - - did I - - I'm not sure what I said exactly. Was it the fact that I didn't trust all the officers, or did I clarify that later in my evidence to say that I was there to ensure that Mr Caporn's instructions were carried out? Because that's my evidence.

Your evidence was also that you believed that the four officers were not doing the job properly?---Did I say that?

Yes, you did say that?---Specifically?

Can't you remember what you said 10 minutes ago? No, it's a serious question?---Well, I'm - -

I expect a witness - - ?---I'm - - I know it's a serious question but - -

Do you recall saying 10 minute - - do you recall saying - - ?- -- - - you're basically trying to put words in my mouth.

MR HAMMOND: - - 10 minutes ago - - ?---Mr Hammond - -

 - - that these officers weren't doing their job properly?

COMMISSIONER: Mr Hammond - -

WITNESS: Mr Hammond, I've explained - -

COMMISSIONER: Mr Hammond, if you can just start the question again, please.

MR HAMMOND: Do you recall saying 10 minutes - - ?---If I can say - - if I can say - -

Could you direct the witness, Mr Commissioner, to listen to the question?

COMMISSIONER: If you will put the question, Mr Hammond.

MR HAMMOND: Did you say 10 minutes ago in your evidence in-chief that the officers were not doing the job properly?--- My evidence is - - and if I've said that then I retract that. My evidence is that I was there to ensure that Mr Caporn's instructions were adhered to.

Well, let's get this clear. If you did say that, then you retract it, don't you?---My evidence is is that Senior Sergeant Miller had shown some behaviour which concerned both Mr Caporn and myself, and that I was there to ensure that Mr Caporn's instructions were carried out.

But if you said it in relation to the four officers that they were not doing their job properly, you retract that, don't you?---In relation to - - I've already said I think, in answer to your question - - -

WITNESS: - - - to your question, that I did not have any concerns regarding the competence of Detective Italiano, Detective Connoley or Detective Sergeant Ingham.

MR PETTIT: Commissioner, if it helps - I'm always reluctant to substitute my memory for anyone else's - my memory is that the witness said in this respect that some of the officers had lost perspective, rather than that they were not up to the task.

MR HAMMOND: I wrote it down verbatim, Mr Commissioner.

COMMISSIONER: Well, we'll look at the transcript.

MR HAMMOND: When you came to the Child Sexual Abuse Unit, did you have any experience in sexual abuse matters?---In sexual abuse matters or in child sexual abuse matters?

Child sexual abuse?---No.

And you've been friendly with Superintendent Caporn for a number of years?---Absolutely. Yes.

Close friends?---Oh, work colleagues. Work together.

Socialise together?---On occasion.

And you discussed the case concerning Q1 and Q2 with Mr Caporn on numerous occasions?---As I've said in my evidence, I briefed Superintendent Caporn on any issues that I was briefed on.

You discussed the case on numerous occasions with Mr Caporn?-- -I guess the answer to that is yes, if - - it goes along with what I've just said.

And you've given evidence to the Royal Commission that it was a significant inquiry because of the impact the investigation would have. What was that impact?---In relation to -

The inquiry into Q2. What was the impact that that would have?---Well, charging a person with the profile of this person would have had a significant impact.

And in your view - -?---Which I thought would have been fairly obvious.

And in your view, charging someone of that profile would have been detrimental to the Police Service?---Absolutely not. Where - - I don't know where you got that impression from.

MR HAMMOND: Well, you did say it would have been the story of the year?---Exactly. It would have been.

Do you see that as being detrimental to the Police Service?--- It would be if we'd have charged the person with the evidence that was available at that time, as was suggested by the four - - the officers from Child Abuse. As I said in my evidence also, the Police Service can, you know, be thankful that Superintendent Caporn reviewed it. Otherwise the DPP would have nolle'd the prosecution.

You've never disagreed with a direction given to you by Superintendent Caporn, have you?---On many occasions.

And you don't recall a heated discussion with Police Officer Connoley in relation to the arrest of Q2?---I've never had a heated - - well, I've never had a heated discussion with Detective Connoley.

Well, you agreed with Police Officer Connoley, didn't you, that Q2 should be arrested?---There was some discussion as to whether he should be arrested or whether he should be summonsed. I can't specifically recall what the discussion was, but it was a - - if it was between myself and Detective Connoley, it was a discussion - certainly not a heated discussion.

You said a few moments ago to Mr Pettit that you were adamant that it was proper to arrest Q2. Is that still your evidence?---I didn't say "adamant." I never used that word.

Sorry, I withdraw that. You agreed that it was proper to arrest Q2?---As I said a short moment ago, there was some discussion as to whether he should be arrested or summonsed. At the end of the day Mr Caporn instructed, at that stage, that he should be proceeded against the same as everybody else.

And what is "the same as everybody else"?---I'm not 100 per cent sure, to be quite honest with you. I'm thinking now as well, that because this is a matter that's 20 years old - -

You're an inspector. How is everyone else treated in this situation?---As I said, I'm not - - as you pointed out, I'm not experienced in how those specific issues are dealt with at Child Abuse Unit. At the end of the day - -

Superintendent - -?---At the end of the day, it's a decision that's taken at the time. If a matter is historic, it's not improper for a person to be summonsed.

MR HAMMOND: Superintendent Caporn directed you to proceed with Q2 in the same manner as everybody else. Was that the direction?---That was our discussion, yes; the basis of our discussion.

And he directed you to treat Q2 the same as everybody else?--- Not in - - not in - - well, yeah, I suppose a direction. Yeah. It was a discussion and he said he should be treated the same as everybody else.

MR HAMMOND: And what is being treated like - - and what did you understand that direction to mean, that he be treated like everybody else?---Exactly that, that it would be a decision taken at the time. Bear in mind that this all occurred long before the review was done.

And the decision of the Child Abuse Unit to arrest Q2 was revoked after Mr Caporn reviewed the file?---Mr Caporn reviewed the file and instructed that - - well, and advised everyone that there was insufficient evidence in his view and in the view of the Crown prosecutor - - there was insufficient evidence at that stage to proceed, so of course he wouldn't have been arrested, because at that stage there was insufficient evidence.

Well, you can't shed any light on what it means to be treated like everybody else, what you understood that to mean? ---It means it's a decision taken at the time. As I said, I'm not 100 per cent aware what the decision is. If it's a case that's 20 years old, more than 20 years old, it may be a case that a summons is appropriate. It also maybe a case that in the same circumstances an arrest is appropriate. It's a decision taken at the time.

So there's no definition that can be given to the words "being treated like everybody else", is there?---Well, other than - - other than the general term that he should be treated the same as anybody else, no, I suppose not.

It's meaningless?---I don't think it's meaningless but - -

You can't help?--- - - I'm not going to - - I'm not going to argue with you.

You reported to Superintendent Caporn in your position as inspector?---Yes.

How many files do you envisage you handled whilst you were at the Child Abuse Unit?---What do you mean?

Did you have the conduct of many files while you were there? ---What do you mean? Investigations?

Yes?---No. That role, that managerial role, doesn't do investigations.

But you were there to oversee matters?---Yeah, in the chain of command. Yeah.

And you never - - and would you describe yourself as the most senior officer at the unit at the time?---I wasn't actually at the unit. I was in the same building but, as I said, I was  down on the ground floor which is adjacent to the sexual assault squad.

MR HAMMOND: But you were more senior than any other officer in the unit at the time?---Yes.

And you never reviewed this file?---No.

Superintendent Caporn told you why he wanted to review the file?---I can't specifically recall if he told me why.

He told you that he wanted to review the file because it could impact on the position of the deputy commissioner, Mr Brennan? ---Definitely not.

He never raised with you the sensitivity of charging Q2 in light of Mr Brennan's friendship with Q1?---Definitely not.

Sorry, Q2?---No, definitely not.

COMMISSIONER: This is going beyond the scope of the cross examination, Mr Hammond.

MR HAMMOND: It's been put by two - - have you any knowledge of the contents of the file in relation to Q1 and Q2? ---Not specifically, no. As I said, I've not reviewed any of the - -

Have you seen the memorandums that have been exchanged between the various police officers on the file?---Not that I can specifically recall, no. They would've probably come - - if they've gone up to Superintendent Caporn they would've gone through me probably, but I've got no specific recollection of them.

Do you have any knowledge of the friendship between the deputy commissioner and Q2?---I still don't.

You don't have any knowledge of it?---I don't have any knowledge whether there's a friendship or not - -

WITNESS: - - - whether there's a friendship or not.

MR HAMMOND: Could the witness be shown the memorandum that senior counsel referred him to? I think it was D1012885. Do you have your notes there, Inspector Brandham?---I do.

Can I see them, please? You'd agree, Inspector Brandham, that this is a very extensive memorandum concerning the case, to Superintendent Caporn?---Yes.

And you were asked to give him a very extensive memorandum regarding the case?---I was asked to provide a memorandum. That's what I did. I can't remember the exact details of the conversation, as to what I was asked for.

You can't recall or assist the Commission as to why you were asked to produce such an extensive memorandum?---No, I can't. Not off the top of my head, sorry.

Surely, Inspector, you can remember why you received an instruction to produce a memorandum of that detail?---(No audible response.)

If you could flick to page 2, please?---No, as I say, specifically I can't. I may be able to shed some light on that, with reference to my notes, but without reference to them, no.

You were aware at the time that Detective Sergeant Ingham believed that there was enough evidence for charges to be brought?---Yeah. Detective Sergeant Ingham made that point clear.

If we could turn to page 4, please? And you're aware that Detective Senior Sergeant Miller thought there was enough evidence on which to proceed?---Yes.

And you're clear about the instruction from Acting Detective Superintendent Caporn which appears through the middle of page 4, advised that he would fully review the case and instructed that nothing further was to occur until the review is completed. That's correct?---Which paragraph is that?

I think it's six?---Yes, that's correct.

Do you recall why, then, Acting Detective Superintendent Caporn gave that instruction, that nothing was to occur, until he had reviewed the file?---No, I don't recall why. I can assume it was so that he could review the file. To satisfy himself that there was sufficient evidence to proceed.

So, it's fair to say that until that review was conducted, not one further step was to be taken on the matter? All investigation would cease until that review had been carried out?---Well, the next - - my recollection is that the next planned step, if you like, wasn't for some time - - wasn't going to occur for some time anyway. The next planned step was the interview and - - so it's simply a case of reviewing the file to satisfy himself - - as I say, I'm speculating here, because it's in his mind.

MR HAMMOND: You don't know?---It's in his mind.

At the bottom of page 4, Inspector, the first dot point is:

"He had examined all the evidence."

Is that Superintendent Caporn you're referring to?---Yes.

MR HAMMOND:

"Superintendent Caporn examined all the evidence and found that these offences had more than likely occurred in the manner described by the complainant."

WITNESS: That's correct.

MR HAMMOND: So that was Superintendent Caporn's view, was it?---Yes, it was.

He believed that these offences had occurred?---He believed that the statement of the complainant supported - - yeah, that they'd occurred.

And he made that known to you in discussions as well?---Yes.

MR HAMMOND:

"Superintendent Caporn had examined all the alleged corroborative material associated with the brief, and found that they did not support the alleged crimes."

WITNESS: That's correct.

MR HAMMOND: Isn't it the case that you don't need - - -

MR HAMMOND: - - - that you don't need, on your understanding, corroboration for a successful prosecution?---That's a new one on me. My understanding is that you always seek corroboration to obtain a successful prosecution, particularly in a case that's 20 years old.

But it's not necessary, is it, for a case to succeed that you always - - ?---Absolutely it is.

So your - - ?---I don't know of any instances where you can't - - or I can't think of any specific instances where you wouldn't seek to find corroboration in a criminal matter.

I'm not saying you wouldn't seek to find it. I'm saying a case could be mounted without corroborative material.

COMMISSIONER: You're saying here that the corroborative material wasn't - - didn't support it.

MR HAMMOND: Yes, that's correct. But I was putting a slightly different proposition so - -

COMMISSIONER: I know you were, but there are two aspects; that he believed Q1; that he's pointing out there was no corroborative evidence.

MR HAMMOND: But my proposition, Mr Commissioner, is that even if there is no corroborative evidence - -

COMMISSIONER: It's possible.

MR HAMMOND: Yes.

COMMISSIONER: But it's running a risk.

MR HAMMOND: Well, I suppose - - I mean, the submission we would make in relation to that, Mr Commissioner, that no cases would be brought - - a lot of cases wouldn't be brought, and there are indeed many, where there is no corroborative material in sexual abuse matters.

COMMISSIONER: Well, each one is judged on its circumstances.

MR HAMMOND: Yes.

(TO WITNESS): If we could turn to page 6, thanks. Sorry; 5. The last dot point, Inspector Brandham, is that Superintendent Caporn further instructed that no matter what came from the interview, no action was to be taken against Q2 until he had further reviewed the confessional material?--- Yes. That's correct. It's also worthy of mention, noting those other dot points in there, in that Ms Vicker concurred with his finding that there wasn't sufficient evidence to proceed at that stage.

MR HAMMOND: Yes, I have read that?---And the fact that - - that - - that all other avenues of inquiry should be explored in relation to obtaining supporting evidence.

So the instruction from the superintendent was, regardless of what was said at the interview, Q2 was to be released?--- That's correct.

And I put it to you then that regardless of the risk to any complainant, that he was still to be released. There was no qualification to that statement, was there?---I can't remember the specific instruction.

Well, I put it to you that there was no qualification to Superintendent Caporn's statement regarding the release of Q2?---I can't remember the specific - - the content of the conversation with Mr Caporn.

You'd agree that in the memorandum there's no qualification, is there?---That's correct. Yes.

And Superintendent Caporn told you that he had lost faith in officers at the Child Sexual Abuse Unit? Did Superintendent Caporn tell you that?---I don't recall that.

Did you ever access the file concerning Q2 whilst you were at the Child Sexual Abuse Unit?---No. As I said, I've not - - didn't have anything to do with the file.

And after this memorandum was provided and the briefing took place, what was, as you - - what was the plan in relation to Q2 that was going to be pursued by the Child Sexual Abuse Unit, as you understood it?---I'm sorry?

What was the plan of action in relation - - ?---At what stage are we talking about? Post-interview or - - -

WITNESS: - - - about? Post-interview or - -

MR HAMMOND: Post the interview?---So once the interview is completed?

Yes?---And that his solicitor has stopped the interview and he'd been released?

Yes?---After that?

Yes?---And that all other avenues of inquiry were to be pursued to see if there was any - - any evidence at all that could be gained that would support a prosecution.

Mr Commissioner, there's a few matters that arise from the diary entries. I'm wondering if I could have 2 or 3 minutes to consider those?

COMMISSIONER: All right. We'll adjourn until 11.30.

MR HAMMOND: If it please you, sir.

AT 11.03 AM HEARING ADJOURNED

AT 11.35 AM HEARING RESUMED:

COMMISSIONER: Yes, Mr Hammond?

MR HAMMOND: Yes, thank you, Mr Commissioner, and thank you for allowing that adjournment, and thank you to counsel assisting for the photocopies. I'm wondering if the witness could be shown copies of his diary notes. I don't know whether he has been given a copy or not. I actually have the original.

(TO WITNESS): I'm not sure, inspector, but you should have as the first diary note - - if you could tell me what it is actually, what date it bears?---There's no date on the page. It starts "Liaise Evelyn Vicker" at the top of the page.

Oh, yes, I'm with you now. You kept notes of what you were doing in relation to certain files?---Just, yeah, day journal notes. Yes.

And they were fairly comprehensive notes?---Not really, no. Just points that at the time when I was writing them - -

If you look at that page, for instance, that you have now by way of example, midway through the page you've referred to Cris Italiano and Q2?---Yes.

And you refer to a media release. Can you tell us what that's about?---It was obviously a conversation with Cris Italiano regarding the matter that she was investigating and those were the issues that were discussed.

And there it says: "Mark Ingham is to assess brief." Was he given that responsibility by you?---I can't remember specifically the context of that conversation, just merely that they're the notes that are made so "Mark Ingham to assess brief" may not necessarily have been an instruction that I gave. It just may simply have been that - -

And further down the page, inspector, it says: "Normal media release only." What's that supposed to mean?---Well, it goes along the lines with, as I said, he was to be treated like anybody else.

So it was envisaged at this stage that Q2 would be arrested and a media release would issue?---Not necessarily, no. It was just an issue that was discussed. Bear in mind that at that stage I was being told that there was more than sufficient evidence to charge him, no matter what he said at interview.

If I can move to the next - - before we move on, is it still your evidence that you had no knowledge of any relationship between the deputy commissioner and Q2?---I have no - - I still have no knowledge of any relationship between the deputy commissioner and Q2.

MR HAMMOND: And is it still your evidence that you had no knowledge of any sensitivity that may arise insofar as charging Q2 was concerned in relation to the deputy commissioner?---I don't believe I've given any evidence in relation to that matter.

Yes, but did you have any knowledge that that may be a sensitive issue for the deputy commissioner?---If you could - - I'm not sure what the question is, sorry.

In October 1998 were you aware that charging or bringing Q2 into the police station may have an impact on the deputy commissioner?---I think my evidence to the Royal Commission has been that should Q2 be charged it would have an impact on the whole service.

But did you believe it would have an impact on the deputy commissioner?---In what regard?

I'm just asking you whether you believed it would have any impact whatsoever?---It would have an impact on the commissioner.

I'll take you to the diary entry of the 23rd of October? ---Yeah.

And that appears five or six lines down the page?---Yeah.

And four dot points down: "Liaise with Cris Italiano re Q2 issue." Do you see that?---Yeah.

Then it goes on to say: "Meet Mick" - that's Miller, is it? ---Yes, it is.

"And Cris re Q2 issue"?---Yes.

"Treat him like all others"?---Yes, it's as I've said - - -

WITNESS: - - - it's as I've said

MR HAMMOND: "No media leaks"?---Yes.

That was a direction by you, that there was - -?---It's not a direction. This is a discussion, don't forget. This is not - - I'm not - - these are not directions by me. These are things that are discussed.

So, this is a note of a discussion between you, police officer Miller and police officer Italiano?---Yes. I guess, yeah.

"To be kept in-house. Detective Sergeant Ingham to figurehead inquiry"?---Yeah, as I said, that was that, what I mentioned earlier, about the discussion that was had, that he would run the inquiry, that - -

You were happy with that?---Sorry?

And you were happy with that?---Absolutely, yeah.

"Proceed by arrest" and you've already said you had no problem with that?---Yeah.

"Briefing note on issues by Monday"?---Yeah.

"Explain Mr Brennan's interest, professional only"?---Yeah.

What does that mean?---It means that Mr Brennan - - there was a - - there'd been comment that Mr Brennan had been briefed. There was - - if I can recall, there was some comment had been made within the unit that - - about a possible association between Mr Brennan and Q2.

So, you did know at the time that there was a possible association between the deputy commissioner - -?---No, I didn't know anything. I said that it had been - - there'd been a mention of it. I didn't know anything. I said Mr Caporn had told me that he'd briefed Mr Brennan and that there was some comment had been made within the unit.

I won't argue with you, inspector, but I don't recall that being your evidence?---I haven't given any evidence in relation to that.

Well, what was the reason behind those words, "Explain Mr Brennan's interest" - is it supposed to have the word "as" before "interest" and "professional"?---Oh, I don't know. As I said, it's obviously a matter that was discussed at the time.

So you have a memory lapse in relation to why that's there?--- I don't have a memory lapse. As I said, there's a lot of things that you put to me, Mr Hammond, that I haven't had clear recollection on. This is a note that's been made by me on the 23rd of the 10th 1998.

MR HAMMOND: Yeah, we can all see that?---I can't remember specifically the conversation that was had.

Can you explain to the Commissioner what was discussed at that meeting about explaining Mr Brennan's interest, professional only?---Well, it speaks for itself. Explain Mr Brennan's interest, professional only.

And who is that to be explained to?---I'm not sure.

Are you covering up things, inspector?---Oh, please, Mr Hammond.

Do you agree with this proposition, that that is shorthand for saying "Explain to the media that Mr Brennan's interest is only professional"?---Explain to the media? Where did you get that from?

I have put those words to you, as you have abbreviated - -?--- There's no mention of the media - -

No, there's no - -?--- - - anywhere in there. In the context of that five, six words, there's no mention of the media in there. I don't know where you get that from. So, the answer is "No".

Well, after the words, "Explain Mr Brennan's interest, professional only - likely to occur", what does "likely to occur" mean?---I have no idea.

So, you've forgotten that as well?---I don't even - -

MR PETTIT: Well, I think it's part of an expression, "likely to occur, Monday 2/11."

COMMISSIONER: Yes.

MR HAMMOND: Is that - - counsel assisting has readily jumped to assist you. Is that the position? Is that right?

MR PETTIT: Well, I haven't jumped to assist. I've jumped to put it in a proper perspective, with respect.

MR HAMMOND: Well, I thought it was this witness giving evidence, not counsel assisting.

COMMISSIONER: Well, I think the question was wrong, because it does follow on, "Monday the 2nd." "Likely to occur, Monday the 2nd."

MR HAMMOND: Can I clarify that, Mr Commissioner?

COMMISSIONER: Yes. Certainly.

MR HAMMOND: Inspector, do you agree with counsel assisting's proposition that "likely to occur, Monday 2 November - -" is that what it says, or "2" something? Do you know what that means?---Again, it's - - all I can suggest was - - is that the - - the interview, as planned at that stage, prior to it being reviewed by Mr Caporn - - the interview was likely to occur on the 2nd of the 11th. I think. I don't know.

"Advise Dave". That's Superintendent Caporn, isn't it?--- Yeah.

"And okay it." Is that right?---That's what it says.

MR HAMMOND: If we go to the next page, Wednesday 28 October, starting at 7.30 am?---Yep.

You've highlighted an entry - just prior to Wednesday 28 October - which says, "1830. Liaise with Dave -" which is Superintendent Caporn?---Yep.

"- and Jo Connoley re Q2 issue - -"?---Yep.

"- - re briefing for Mr Brennan"?---Yep.

What was that briefing about?---No idea.

No idea?---No.

Are you intimidated by the fact that the deputy commissioner is sitting here listening to you?---Do I have to answer that? Because that's ridiculous. It's a ridiculous comment, Mr Hammond.

Well, it's a question?---It's not a question. The answer is "No." If the question is: am I intimidated by Mr Brennan being in the back of the court - no, I'm not, not at all.

You have no idea what that means, that entry?---It seems fairly straightforward to me. "Liaise Dave" - Mr Caporn - "and Jo Connoley, re Q2 issue, re briefing for Mr Brennan."

And what was the briefing about?---I have no idea. Probably in relation to what was to occur in relation to Q2.

So your best estimate is that Mr Brennan was to be briefed in relation to what was to happen to Q2?---I've already said that Mr Brennan was briefed in relation to the matter. As I said, it's an issue that had major ramifications for the Police Service.

Okay. Well, let's go further down under "Wednesday 28 October" six dot point, "To Curtin House and meet Dave re Q2 issue. Has told Brennan he intends reviewing brief"?---Yep.

Do you remember Superintendent Caporn telling you that he had told the deputy commissioner that he would review the brief?-- -No, I don't remember him telling me that, but that's what I wrote down, so he must have.

And further down the page, dot point 2, "Child Abuse Unit." I assume that means you attended there, does it?---Yep.

"And liaise with Mick"?---Yep.

MR HAMMOND: That's Miller, isn't it?---Yep.

The officer in charge?---Yes.

 And he was the officer in charge, notwithstanding that you had no - - you didn't trust him, or you believed he wasn't a good officer?---I didn't say - - I haven't said that at all.

Didn't you have problems with Mr Miller?---Did I have problems with Mr Miller?

Yes. Didn't you have a lack of trust in Mr Miller because of his memory?---Yes. Yes.

And he remained in charge of this matter, notwithstanding that?---Well, he was - - I guess he was in charge of the unit, of the Child Abuse Unit.

But you were happy for him to be in charge?---Detective Senior Sergeant Miller is a very experienced officer.

It goes on to say "Discuss Q2 review issue as per Dave's instructions." Do you see that?---Yes.

And it goes on to say "Further" - something is crossed out - "action re charging Q2 put on hold until evidence reviewed." Then there's an asterisk "VIP." Does that stand for Very Important Person?---I guess so, yes.

Dash - "let's make sure it's right"?---Exactly. I mean that makes - - that's the whole crux of this, "Let's make sure it's right."

And if we look at your diary entries - and I won't take you through it verbatim, you'll be pleased to hear - there was considerable time devoted by you, wasn't there, in relation to the supervision of this file?---It was an important issue, yes. It's - - yeah, it was an important issue. There's lots of notes throughout my diary concerning it.

If you turn to the 9th of December 1998, is that your next - - ?---Yep.

About six or seven dot points down, it says "Liaise with Mick re additional memo re Mr Brennan"?---Yep.

And it says something, "I see (...name suppressed...) Do you recall what that was about?---Does that relate to a - - a memo that - - -

WITNESS: - - - a memo that Mr Miller, Senior Sergeant Miller, delivered to Mr Caporn or told Mr Caporn about on that day that had been given to him by Detective Italiano some time earlier.

MR HAMMOND: "It does relate to memos I - - "?---Yes.

So you do recall the issue?---Yes, I know what you're talking about.

So what I want to put to you, inspector, is that you were throughout the course of this inquiry totally cognisant of the fact that this inquiry would have an impact on the deputy commissioner?---I think I've already answered that. It would have an impact on the whole service.

I'd like you to answer the question insofar as it relates to the deputy commissioner?---Well, it would have an impact on the assistant commissioner, Mr Caporn, myself, the deputy commissioner, Brennan, the Commissioner of Police and the rest of the service.

Inspector, you don't mention the commissioner or any other senior ranking officers in these diary notes. You speak about Mr Brennan. Why do you speak about him generally in these diary notes?---Because Mr - - as I said, as I said to you earlier, Mr Caporn said that he briefed him and that there was some innuendo within the office about - - that I know nothing about, about a possible relationship, friendship, whatever, between (...name suppressed...) and Mr - - sorry, Q2 and Mr Brennan.

Which you knew about in October 1998?---What?

The innuendo?---It was going on in October 1998.

Yes?---There was some discussion in the office, yeah.

Which you knew about all along?---There was a - - there were some comments being made within the office.

And those comments were made to you?---I was aware of them, yes.

How were you aware of them?---They must have been said in my presence.

I seek to tender the diary, Mr Commissioner.

COMMISSIONER: Sorry?

MR HAMMOND: I seek to tender those diary entries.

COMMISSIONER: Yes, well, they'll be - -

MR HAMMOND: Actually, I should tender the whole - - the original - -

COMMISSIONER: No, I don't think that's your position actually, but they will be part of the exhibits. No, they are going to be part of a bundle.

MR HAMMOND: Thank you, Mr Commissioner.

 COMMISSIONER: Yes, thank you. Yes, Mr Power?

MR POWER: Thank you, Mr Commissioner.

CROSS-EXAMINED BY MR POWER:

MR POWER: There's just one matter that I need to ask you about. You were referred a while ago to a document - -

MR HAMMOND: Sir, I'm wondering what statements this witness has made which are adverse to Mr Power's client.

MR POWER: I would have thought it arises from the crossexamination of my learned friend.

COMMISSIONER: Yes. Mr Power's client is - - there are allegations made against him and he's entitled to pursue those.

MR HAMMOND: Just reading your ruling again this morning, sir, I understood it to be if it didn't come from the words of this - - the mouth of this witness then that can't be - -

COMMISSIONER: I think he has a broader - -

MR HAMMOND: Yes.

COMMISSIONER: He's the one who's subject to inquiry; your clients are not.

MR HAMMOND: Yes.

COMMISSIONER: Yes.

MR POWER: Thank you, Mr Commissioner.

(TO WITNESS): You were referred a moment ago, as I was saying, to a document numbered D1012885. I would like you to look at that again. Can we go to the last page of that to pick up the date? You'll see it's dated the 8th of December 1998?---Yes.

MR POWER: We know that a written complaint was made to the police on the 1st of December 1998, a week before this memorandum was written by you - - -

MR POWER: - - - was written by you?---I'm not sure when a - - I'm aware of a complaint, but I'm not sure when it was made.

Well, I think you can take it as read that the complaint was made to police on the 1st of December 1998 by Q1?---I'll accept that position.

Wasn't this memorandum, this detailed memorandum, written by you in response, in effect, to a request for information following on that complaint?---Specifically, I can't recall, but that would - - that would answer the reason why this memorandum was put in.

Yes, and it might also explain why it is so detailed, might it not?---Absolutely, yeah.

Thank you, Mr Commissioner, I have no need to ask any further questions.

COMMISSIONER: Yes. Thank you. Mr Pettit, is there anything you have?

MR PETTIT: No, nothing further, thank you, sir.

NO RE-EXAMINATION

COMMISSIONER: Yes. Thank you very much indeed. You're excused from any further attendance under the summons. If we can retain your diary for the time being, thank you.

WITNESS WITHDREW

12/09/2002 BRANDHAM, F.J. XXN

MR PETTIT: I call Tim Atherton.

COMMISSIONER: Could I have your full name, please?

MR ATHERTON: My full name is Timothy John Atherton.

COMMISSIONER: Do you have any conscientious objection to taking an oath on the Bible?

MR ATHERTON: None whatsoever.

COMMISSIONER: Thank you. You can take the Bible and read out the oath, please.



DAVID JOHN CAPORN: CROSS-EXAMINED BY MR HAMMOND (Continuing): MR HAMMOND: Superintendent Caporn, it is the case that you gave an instruction to Constable Italiano that even if Q2 confessed that he was to be released?---That's not the full extent of the instruction that I gave. But did you give an instruction along those lines?---I gave the instruction, and again I can't remember my exact words, but the effect of my instructions were that whatever occurred in the interview on that particular day that they were going to interview him, he was to be released and that I would re-assess the evidence. And I'm not so sure that I used the word "released" in fact, but that he wasn't to be charged at that particular time until I had an opportunity to re-assess the evidence. Constable Italiano, who was a constable at the time, said that what you said was that regardless of whether Q2 confessed or not, "you are to release him and I will reassess the evidence".

Do you accept that you gave that direction, as she has - - ?

---I don't accept that it was necessarily in those exact words. I think I've given quite clearly what the thrust of my - - what the effect of my instructions were.

But you've just said that regardless of what happened in the interview that you would reassess the evidence?

---That he was not to be charged, and that I wanted a hand in reassessing the evidence; yes, I did.

So even if Q2 made a full confession in the interview to the interviewing officers, he was not to be charged. That's your evidence?

---As I said on Thursday, quite clearly if he had have sat down and made a full confession then I would suggest that I would have received a call that day about that issue from Inspector Brandham.

But that's not what you said to Constable Italiano, is it? You said regardless of what happened in the interview he was not to be charged?

---As I say, I don't recall the exact words.

Are you able to answer that in the affirmative or the negative?

---I don't recall the actual? words, if you'd just let me answer your question. I don't remember the exact words that I used, but the substance and effect of my instructions were that, and I've explained the reason why I gave that clearly on Thursday - - were that I wanted a hand in re-assessing the evidence because there were many issues in relation to perceptions about what amounted to a confession and, indeed, as I say, I believed that this case could have gone forward with just some admissions, let alone a confession. But we had to get it right. We had to be professional, thorough, and, at the end of the day, safe to make sure that we were charging him with the correct charges that were sustainable.

MR HAMMOND: The four officers that have made their complaint to the Royal Commission; as you know, they complained that you made a direction that, "Regardless of whether or not Q2 confessed or not, you are to release him, and I will re-assess the evidence." In relation to that, they say they have never had such an instruction before in their time in the police force. What do you say to that?---Well, that amazes me that they've never been into an interview and not had a case significant enough to do some reassessment at the end of it. Particularly when you're working in that particular field, or any field with issues that really, at the end of the day, there are several things that have to be considered so the right charges are laid.

I put it to you that if a suspect comes into an interview and makes a full confession that it would be very rare for a direction to be given that he be released?---But you must take into context - -

No. No. I - - ?---No. No. No. In answering your question, you - - you must - - you cannot work in a vacuum. You must take into context that I'd already been told things like that Q2 had confessed to the mother. Now, I'm sure with your experience, if you look at the statement of Q1's mother, you'll see that that is not a confession. So now we start to move into a field where perceptions weren't correct.

Superintendent, that's not your evidence?---And it would have been very wrong of me - - very wrong of me to hand full carriage back to the team when they obviously didn't agree with my view on that matter.

Superintendent, that, with respect, is not your evidence. What you have told this Commission is that regardless of what happened in the interview you would reassess the evidence?--- So what's different in relation to that as to what I've just said?

I'm putting to you that the logical inference to be drawn from that direction is that even if Q2 made a confession he was to be released?---That's a confession in their mind. And - - and to be released is again a word that I don't believe that I used.

MR HAMMOND: Superintendent Caporn - - ?---I don't believe that I used the word "released".

- - do you agree with that inference, that regard - - ?---No, I don't.

You don't agree that that means that?---No, I don't agree with that inference at all. Because you're taking things out of context. We've already had a lengthy discussion about the views on the diaries and the views on - - and what amounted to corroboration, and the views on the issue concerning the alleged confession. Now, you - - -

WITNESS: - - - the alleged confession. Now, you can't work in a vacuum. You must take those things into consideration because they're very important issues. This is about management and leadership, and that was my role.

MR HAMMOND: The officers say that you provided no qualification to your instruction that Q2 be released whether or not he confessed?---This was a lengthy discussion where I've already gone through my evidence, the number of different aspects of - -

Are you able to answer - -?--- - - this case - -

- - the question? Did you provide any qualification to your statement, that regardless of what happens in the interview, you would reassess the - -?---There was qualification given prior to even making that statement and - -

Oh, so you - -?--- - - again, I refute the words, the exact words that said I've been used, because I don't believe I used the word "released."

But you don't remember what words you used now, do you?---I know the - - I know - - I cannot remember exact words, but I can certainly remember the substance and effect of my instructions. I mean, they are without question - -

Constable Italiano - -?--- - - not what has been portrayed here.

- - has a crystal clear recollection of the words that you used?---Well, I'm not going to argue about what Constable Italiano believes, or her perception is.

I put it to you, then, do you dispute Constable Italiano's clear recollection that you gave the instruction that regardless of whether Q2 confessed or not, "You are to release him and I will reassess the evidence." Do you dispute that?-- -I dispute many of the perceptions that she's had in this matter.

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Do you dispute Constable Italiano's recollection that you said, regardless of whether Q2 confessed or not, "You are to release him - -"?---I question that I used those exact words, yes, because it seems to take, to some extent, the substance and effect of my instructions out of context.

Do you dispute that you said to some of the officers on that team that you would lose your job if Q2 was arrested?---The only one I had a discussion with that about - -

Sorry, can you answer the question?---I will answer, if you let me answer the question, because you said to a "number of officers." The only person that I had that conversation with, in fact, was Constable Italiano on the 8th of January, and it was in context, as I explained on Thursday, nothing about the issue of what's been suggested. It was all about the fact that if you go and charge people with these serious offences when you haven't got a brief and that you're going to put forward offences that would be nolle prosequi, then it is an extremely serious issue and it would impact on my position. Absolutely it would, and I would say that it should impact on my position, because I wouldn't be doing my job.

MR HAMMOND: Did you say to Constable Italiano that you would lose your job if you proceeded to arrest Q2?---No. I said that - - and again, whether the words be exact or not, I said, "Certainly, I could lose my position if you were to charge people when you didn't have sufficient evidence to charge people with these type of offences" and I still stand by that.

So, again, you dispute Constable Italiano's recollection of what she says you told her?---I dispute the perception of what she says that I told her. The perception in the context of what I told her has certainly been put forward in a different - - than it was.

At the time of this investigation, Superintendent Caporn, you were in charge of the Macro Taskforce?---I was the commander of the Macro Taskforce, yes, I was. I still am.

Which was investigating the Claremont serial killings?--- That's right.

And you were also in charge, as superintendent, of four separate areas of crime within the WA Police Service?---Yes, I was. Yes.

That included homicide?---Yes.

The Child Sexual Abuse Unit?---Yes.

And what were the other two areas?---The Sexual Assault Squad, as it was then, and the Missing Persons Investigation Unit.

And you had the time to devote, as you call it, a thorough review of this file and to put all matters on hold while you were investigating the - - well, heading up the Macro Taskforce?---Yes, and as I pointed out, and I think it's important to your question, that as soon as I was appointed as acting superintendent at Personal Crime, I appointed an operations manager, so I elevated a person into a position that would take far more control of the day-to-day issues. I provided over-arching management and leadership in relation to major decisions, but the day-to-day runnings of that particular inquiry were delegated to an operations manager.

MR HAMMOND: You've already said in evidence that this was a very simplistic investigation, haven't you?---No. I said the brief that I reviewed, the brief of evidence, compared to other briefs of evidence that I've reviewed, I found it to be very simplistic. It would be one of the easiest ones that I've reviewed in the last 7 or 8 years. Why didn't you entrust the matter to Inspector Brandham - - -

MR HAMMOND: - - - to Inspector Brandham?---Because as I pointed out on Thursday, Inspector Brandham - and like anyone else who works directly for me - would have had a hundred things on his plate.

But you had a hundred things on your plate, Superintendent. You were in charge of the Macro Taskforce, investigating the Claremont serial killings, yet you had plenty of time to devote to this?---No, no. Don't take it out of context. Yes, I was a very busy person, but I also knew that I had the knowledge, skills and ability to deal with this in the matter of a couple of days.

Yes, but so did Inspector Brandham, Superintendent?---He may have, but you've got to take the - - the situation. What I - - there was a major reform going on in the Child Abuse Unit. I've already clarified that. He was doing a whole number of things for me. Anyone who works for me directly will tell you that I delegate a hell of a lot to them. This was a situational decision. This was - -

But as to delegate, why didn't you delegate this matter?--- This was a situational decision based on what everyone was doing at the time, and I knew that I had a lot of experience in doing this and I knew that I could do it within a couple of days, and I made a decision.

I'm not questioning your abilities, Superintendent. You've told this Commission the extent of your abilities, but you've also told this Commission that this was a simple brief?---It was simplistic review of evidence that I've done, yes.

You've also told this Commission that you were a very busy person - -?---Yes.

- - heading up the state's most important murder investigation - -?---Yes.

- - at the time?---Yes.

And you've also told the Commission that you delegated work very easily. You were very good at delegating?---Yes. I have no problems with that.

Why not delegate a very simple brief to an inspector - -

COMMISSIONER: No, a simplistic brief, I think was the word. It has a very different context.

MR HAMMOND: Sorry, simplistic brief to someone such as Inspector Brandham?---Because it was a situational decision. It was based on what everyone was doing at the time. I set aside the time and I did it myself. And, you know, it's not unusual for me to do that. I will make that decision and I will do it, and I can give you many many other examples of me doing that.

Were you familiar with Operation Cathedral?---Yes. I certainly have some recollection of Cathedral, but I'm - - I'm - - look, I - - I don't have the depth of recollection with me at this particular time.

That was the child sexual abuses - - the Child Sexual Abuse Unit's most important investigation in 1998?---Well, yeah, that may be a judgment call, but go on.

It involved 105 search warrants being executed around 13 countries in the world?---Yes, but - -

Is that correct?---Our part of it certainly wasn't to that extent. I can assure you. Our part of it was a very small part in that international investigation, and that's why I would dispute that that was our most important - -

It involved complicated issues of jurisdiction?---It involved an assistance that we were giving to an external body and I certainly wouldn't put it at the upper end of what we were doing. It was probably the upper end of something that got a bit of publicity but it certainly wasn't a - - what I would consider one of the major issues at the time.

It involved the international media?---Oh, certainly. As I say, media-wise it was - - it was an international event, but our - - our role in that was fairly small.

It involved complicated issues of law, didn't it, for the Child Sexual Abuse Unit?---I wouldn't think so.

You don't think so, or you don't know?---No, I don't think so.

Do you have any knowledge of it?---I have - - as I said to you, I do have some recollection of that particular - - of that particular inquiry and the role that we played in it.

But you never reviewed Operation Cathedral?---No, there was no need to.

There was no need to?---No.

MR HAMMOND: In fact, you took no interest in it at all?---No, that's absolutely wrong. Of course I take interest in any investigation. As I said, the benchmark that I set in my business areas was to advise me of any significant investigations. Now, that was one that I had advice on, albeit that our role was fairly small in the - - in the big picture.

This was a case, Operation Cathedral, where the National Crime Squad hosted a communications centre for law enforcement officers globally and the Child Sexual Abuse Unit in Perth was providing significant assistance to the global investigation. Do you agree with that?---That would certainly be our media spin on the matter, yes.

That's your media spin on it, is it?---That's right.

Is that a truthful spin, or just the media spin?---No - - well, you know - - I mean, obviously we try to highlight the good work and the assistance that we provided. You know, it was made a lot more of than our role really was. I mean, let's - - let's be honest about this. We weren't coordinating that investigation. We were playing - - -

WITNESS: - - - were playing a - - what I would call a fairly minor support role in relation to investigations in this state.

MR HAMMOND: You call it a minor support role, do you? ---That's right, in the big picture of that investigation. Important. Important, absolutely.

Have you read all the documents in relation to Operation Cathedral?---I wouldn't have read every document in relation to Cathedral, no.

There's extensive documentation generated by the Child Sexual Abuse Unit?---Probably well could be. Yes. Intelligence reports. I'd say some of it would have been from material that we already had possession of.

Reports coming from all around the world?---Well, this was coordinated by a body that was external to our Police Service who were basically coordinating inquiries all around the world. For them it was a major investigation and we were minor players in it.

Minor players, but the law enforcement authorities from around the world were providing your unit with information as to how people involved in child pornography, child molestation, could be apprehended?---Yes, in context but, I mean, that's their core business.

And that was the core business also of the Child Sexual Abuse Unit?---That's what I'm saying. That's the core business of the unit so you've got to take that into context. If you move that away from the area and say, "This is about that happening" you would say it's a major thing but it's the core business of the unit so that's everyday business and it just happened to be that that was an opportunity to be involved in an international operation.

Inspector Brandham said that he had several discussions, if not a number of discussions, with you regarding Q2?---Well, let me say this: from the time I - -

Is that correct?---From the - - no.

It's not?---Well, yes. Yes.

It is correct?---Can you let me answer your question so I can give you the proper facts? On the 18th of August I was advised - again that memorandum. I had nothing more to do either in verbal or any other issue in relation to this investigation until the 21st of October when - - as I recall, when Mr Brandham approached me with a - - sounding me out on the game plan by the team. Now, in the interim period between that I was largely on an officer development course for about 6 weeks of that period of time and I had no contact in relation to it, and that's not unusual. I mean, I've been advised that the significant investigation has commenced. It's not unusual for me not to hear about it until it gets to a stage where something significant is going to happen about it.

MR HAMMOND: You never sought to be briefed by the Child Sexual Abuse Unit in relation to Operation Cathedral? ---I would have been briefed by them in relation to Operation Cathedral. Absolutely, at some stage or another. I mean - -

Do you recall the - - ?--- - - in that period of time I would have been briefed about a number of investigations that were being conducted by the Child Abuse Investigation Unit.

The discussions that you had with Inspector Brandham regarding Q2 - they were instructing Inspector Brandham to oversee the carriage of the file by the officers at the Child Sexual Abuse Unit?---No. No, they were not.

They were not?---No. After my review I gave him specific instructions to overview - - this was after I'd had the meeting on the 10th of November. I gave specific instructions to Mr Brandham to overview the game plan, the operational plan for the interview, and also to be present on the day of the interview. Again, I never gave him any specific instructions in relation to that. It was just having a man of his experience there. No matter what connotation, no matter what path it took, I knew that he would add value.

He's told this Commission that he was to oversee the activities of the Child Sexual Abuse Unit in a non-involved manner. Do you know what that means?---Yes. Absolutely. In the - - the main reason I was sent to the Personal Crime Division was because of the significant issues that existed in the area - this is aside from anything to do with Q2 - and I put him in place down there and, as I said, a bit of water had passed under the bridge before I put him in place down there, to address many of those issues. If you have a look at the review that was done in October 98 of the area, the independent review that we had done, you will see that there is a wide range of significant issues in relation to the backlog of files, the dwindling amount of arrests, the processes that were taking place down there that needed addressing. Now, if you have a look at that particular review you will understand why I had Mr Brandham and had a commissioned officer paying close attention to it - - -

WITNESS: - - - close attention to it. We implemented major reform over the next 12 months in that area.

MR HAMMOND: Why did you give the instruction that Q2 was not to be arrested until you had reviewed the file personally?--- Because I was not confident that the correct judgments were being made. Already judgments had been made that were wrong, and I wanted to make sure that we were professional, that we were thorough and that we were safe, so that when we laid charges against Q2 that they were going to be charges that would be sustainable to the point - -

Do you say that Constable Italiano was making wrong judgments in relation to the matter?---I will certainly say that in relation to the fact that Constable Italiano thought that there was a brief on 12 to 14 charges without Q2 saying anything was an incorrect judgment. Now, I really believe - - I really believe, and I still say to this day, that that is an issue that should have been picked up at a supervisory level, because Constable Italiano was in fact that when she first started that investigation. Over the next 12 months we've changed it so constables who were interviewing officers do not take carriage of the investigation. It is a very - - it has a lot of pitfalls. It's a very dangerous situation and it's not fair on the person who is the interviewing officer. This no longer occurs.

Even after you had reviewed the file you were happy or content that Q2 be brought in for questioning, weren't you?--- Absolutely

Because you thought there was enough on the file after your review to warrant an interview of Q2?---Oh, absolutely. No question.

And that was notwithstanding your concerns in relation to corroborative material?---Well, the interview's all about gaining corroboration. The interview is all about - - there were a number of things that we could have put to Q2 that would have certainly, if he had have responded to the questions, given us an opportunity to get either admissions and then, you know, given the large extent of it, if he was to confess, well, that's fantastic. But even some admissions would have put us in a position to be able to consider charges against him.

So even if there had been admissions to the investigating officers you wouldn't have necessarily charged?---It would depend on what those admissions were, you see. If he had admitted to certain things, that's when you've got to take into context the issues of statute law, the issues of consent and the issues in relation to the time frame and the age of the - - of Q1 at the time of the events, you see. It's not just a straightforward matter. You have to look at that and say, "Yes. He's made an admission to that. That admission amounts to this. It's supported by statute law. There are no consent issues. We can prove her age," if that was part of the - - depending on which particular issue he admitted to. You know, they're the things that needed to be done to make sure we got it right. Now, that doesn't mean that we can't go out 2 days later and arrest him. We can do that. Or we might have chosen to summons. Either way you can do that, but either way, when the charges were laid, they would have been sustainable to the point of getting them to court. No one can guarantee convictions but you've got to have them sustainable that you're going to get to court.

MR HAMMOND: Isn't there a real danger in child sexual abuse that if someone confesses and they're released that there could be an impact on the victim?---Let me say this, and it's certainly an issue in this because it was put up by the team. In my experience I always find that the team on the ground take the most extreme view of that. There were some issues here, but I didn't think that those issues outweighed the fact that we needed to be professional, thorough and safe in laying the right charges. And I did consider that. I mean, that's my job. That's where leadership and management comes into it. I sometimes have to override decisions made by people on the ground, and that's certainly what I did on that occasion. But as I say, if he had have confessed and Inspector Brandham had have contacted me and said, "Look, Dave, he's just - - he's just told us the whole lot here," well, I could have made a decision that day that we at least charged him with some of the obvious offences and we could have later charged him - - preferred charges in relation to the more difficult analysis offences. I mean - -

So Inspector Brandham - - ?--- - - it's a situational effort.

Inspector Brandham had to come to you, even for approval to arrest someone that may have made a confession?---Because under those circumstances you can't act in a vacuum. The circumstances were there'd been significant issues in relation - - as my review identified that the team were going to arrest a man on 12 to 14 charges, some of which were even statute barred. Okay?

Can you answer the question yes or no? Did Inspector Brandham have to come to you, even if the suspect confessed to child sexual abuse, before he could be arrested?---In this particular circumstance I would have at least expected a phone call in relation to it; absolutely. Given all of the circumstances, not just operating in a vacuum - - -

WITNESS: - - - operating in a vacuum, trying to isolate something that is not true.

MR HAMMOND: Are you able to answer the question? Did Inspector Brandham have to come to you, if the suspect confessed, before he could be arrested?---I've just answered that question.

Your answer is, you would have expected a phone call?---In - - given all the circumstances, in this particular instance, I would have at least, at the minimum, expected a phone call to get some acknowledgment of what occurred in the interview, given all the circumstances of what - -

But couldn't that be left to - -?--- - - had transpired - -

- - Inspector Brandham?---Again, the difference between Inspector Brandham and myself in this case is that I'd reviewed the brief of evidence. It would have probably only taken minor detail for him to provide to me, but I had set a proviso that there be at least some contact.

A brief which you describe as simplistic?---It's simplistic in relevance to other briefs that I've reviewed. Simplistic in relation to the complex briefs that I had previously reviewed and have reviewed since in relation to evidence against - -

And it's also the case, isn't it, that even the interview of Q2 couldn't proceed without your knowledge?---Oh, no, that's not the case at all. I wanted to know basically what the outline plan was, but you know, that was pretty much delegated back to the team, with an oversight by Inspector Brandham.

Inspector Brandham's evidence was, "the interview was postponed until Superintendent Caporn reviewed the file"?---Oh well, that goes without saying. We're talking about two different issues here. They were going to interview him initially on the 2nd of November. Now, on that occasion, if he'd have come in and said nothing, they were going to arrest him and charge him with 12 to 14 offences. Now, that was delayed for 7 days because I wanted to do a review, and we know the history of that. From that point on, what day they done the review was completely up to the team to put together an operational plan, and the only proviso that I had was that I wanted to have a hand in reassessing the evidence to make sure that we got it right.

Was it your view that the officers on the case had lost perspective in their dealing of the matter?---No. I - - my belief is this; one, Constable Italiano had certainly misread the brief in respect of saying that there was sufficient evidence to charge initially 12 to 14 offences. Secondly, I really believe that the supervision aspect had not occurred in respect of more senior officers had taken it on face value that there was corroboration in the diaries and that there was other supporting evidence, ie, the confession on the mum, to -

MR HAMMOND: Did you ever speak to anyone about the lack of supervision?---So - - yes, I did. Most certainly. I'll explain that. So, what I say is this - - is that it should not be taken on face value of the interviewing officer who turned out, in this case, to also be the case officer. As a supervisor in this particular unit, it should have been a thorough examination of the brief. Now, when I had Sergeant Miller, Senior Sergeant Miller and Constable Italiano in to explain my review of the evidence and the second opinion of Ms Vicker, they admitted to me that neither of them had read the diaries thoroughly, that neither of them had done the crossreferencing work that I had done. Now, these are fairly basic things that should have been done prior to proceeding, so I don't know about perspective. What I do know about is that they hadn't done the job to the extent it should have been done at that critical point, and that's not all the blame on Constable Italiano. That's a team effort, and to some point, I'm accountable for that as well. And that's why I put in - - measures in place, and most certainly I counselled Sergeant Miller on two significant occasions in relation to this, and I also dealt with this matter extensively in his performance report, but I do believe there are other issues in relation to that, and they are health issues concerning Sergeant Miller's performance at the time.

Inspector Brandham was there to oversee the Child Sexual Abuse Unit?---Yes.

And you were also there, reassessing evidence, giving directions that interviews not occur and giving directions that arrests not occur until you'd reassessed the evidence. So, there was a lot of, would you not agree, high-level involvement in the case of Q2?---There was a lot of high-level involvement in the Child Abuse Unit at that time. Let's put aside the case of Q2. My fingerprints were all over that unit in relation to the time. Major reform was required and major reform was implemented over the next 12 months. This was not just an isolated case where they had - - I would - - I would tell you right now that out of the four business areas that I had at the time, in that 12 months there was more work done and more high-level work done with the Child Abuse Investigation Unit than any other of the four units. If you go to the last 12 months that I was there when it was the Major Crime, I would suggest there was the less time spent with Child Abuse Investigation Unit because the reforms had been put in place, and it wasn't just about processes; it was also about resources. I was able to achieve an extra seven staff for that area, which was an important part of it. They needed extra resources - - -

MR HAMMOND: And more time was being spent on Q2's case than the Macro Taskforce?---That's not true, and I don't know what context you're putting into it, but that is - - well, I won't be disrespectful. Thank you.

You find that question insulting, do you?---Oh, I think it's a ridiculous comment, if you want me to say that. Obviously you do.

I put it to you that it was an exceptional step for you to take to get involved in the file of Q2 when you were heading up the Macro Taskforce?---Absolutely it was not. You've taken that completely out of context. I've already explained that, I think very clearly, and that is not the case. I mean, I'm also the superintendent that's interviewed three suspects in the last 2 years and - - and - - in relation to cases. I guarantee that none of the four officers or other superintendents have ever interviewed suspects in relation to cases. It's just a situational basis where I thought I could add value and I did. But there would also be, I would suggest, none of those officers who would say that their superintendents have ever interviewed suspects, and I've done it on three murder cases in the last 2 years.

So you got involved in the file of Q2 because you thought you could add value?---Absolutely, and I did.

So do you agree with Inspector Brandham's statement, "The officers had lost perspective in relation to the case" - the four officers that have made this complaint to the Royal Commission?---I think I've adequately explained what my position is on that matter.

Are you able to answer that affirmatively or negatively?--- Well, you know, I'm - - I'm not quite clear exactly what he said and what he retracted, or whatever. I think I'm quite clear on the fact that I've explained at length what I thought about - - occurred in relation to this brief.

Do you agree with Inspector Brandham that Q2's profile was a concern?---No, it was a consideration. Not a concern. It's a consideration. It's just another aspect, another element, of an investigation that has to be considered. It was going to be a controversial issue and it has to be considered, but that's just all it is. It's a consideration.

Inspector Brandham said in his evidence that his instructions were "No matter what occurred, Q2 was to be released." He was asked:

"Those instructions being to release Q2 - -?---Yes. "- - no matter what occurred?---That's correct. And to provide feedback to Superintendent Caporn on what had occurred - - what had occurred on that particular day."

MR HAMMOND: Is that correct?---There's many things that Inspector Brandham articulated and many other witnesses articulated about my thoughts that were not exactly correct.

He doesn't say these were your thoughts. He says:

"Those instructions being to release Q2 - -?---Yes.

"- - no matter what occurred?---That's correct."

WITNESS: Well, that's - - that's his recollection of that matter. I've already covered that issue. I mean, he's been bombarded by press and many other issues and plus, you'd only have to look at what an officer has been involved in, or any of us have been involved in, in that time. But I'm the person who gave the instructions. I know what the effect and substance of my instructions were and I've made that quite clear and I stand by those instructions.

MR HAMMOND: He also felt it was your position that the officers couldn't be trusted to carry out your instructions?-- -I think I've made myself quite clear on that issue.

Do you believe it was Sergeant Miller's position that he was showing resistance to the file being reviewed by the DPP?---At what particular time are you talking about? I mean, I don't think it was Sergeant Miller's position that he had shown resistance to the DPP reviewing the file. There was some initial resistance that was conveyed to me concerning my review of the file. My understanding is that Senior Sergeant Miller was - - was very much happy about having the file reviewed by the DPP and in fact I think he's put that on paper to me.

And you're a friend of Inspector Brandham?---Absolutely.

A close personal friend?---Oh, I wouldn't say close personal friend. I mean, we don't have a lot to do with each other socially - -

WITNESS: - - - each other socially. I mean, socially we'd probably get together about twice a year, but do I have a close working relationship with this officer? Absolutely. He's a fine officer and he can work on my team or I'd work on his team any day.

MR HAMMOND: And you were briefing the deputy commissioner in relation to the file of Q2?---In perspective. I had spoken to him on probably two occasions about the matter but again put it into perspective. I had a direct reporting relationship into the deputy commissioner because of my role on Macro and we used to also discuss at times, and they're all recorded, Personal Crime issues; and they've all been spoken about in evidence.

And there was a concern by you and the deputy commissioner that his relationship with Q2 would become public?---No. That was never ever discussed between myself and the deputy commissioner.

And that was discussed - - but that issue was discussed between you and Inspector Brandham?---What, about Mr Brennan's - -

Mr Brennan's association with Q2?---Becoming public?

Yes?---No. We never discussed that issue.

And no issues regarding media releases were discussed? ---Certainly there were issues regarding media releases. When Mr Brandham came to me on the 21st of October sounding me out on the game plan that was coming forward from the team there was certainly a number of discussions about that because there was one thought coming from the team that there be a media conference done after Q2 was arrested and I was against that because we don't normally do that in relation to those sort of arrests.

Did you hear the evidence regarding the diary entry of Inspector Brandham of the 23rd of October 1998 where it was said:

"Explain Mr Brennan's interest - professional only."

Did you hear that evidence?---Yes.

And were you present at a meeting where that issue arose? ---No.

Were you aware that there were concerns in the Child Abuse Unit in relation to the association between the deputy commissioner and Q2?---No. The first time I became aware of concern was when I was handed that August 25th memorandum, which I was given well into December, and I think you know what my thoughts were on that; and I recorded them the very same day when I received that. I think if I had have known those things it could have made a hell of a difference to us sitting here today having this discussion.

MR HAMMOND: It's your position that Constable Italiano, soon to be promoted to detective, didn't read the diary notes properly?---Oh, absolutely.

Did you instruct her to read them properly?---I didn't instruct her to read them properly but I did question her and Sergeant Miller about it after I had done my review and they admitted to me that they had not read them thoroughly.

You say you read every page of the diary notes?---I did, yes.

And every entry?---Yes.

Were you familiar then with the symbol that Q1 used after sexual contact had occurred with Q2?---I may have been at the time. I'm not now.

You're not now?---No.

It's been in the press?---It may have been in the press. I don't read every press report.

So you cannot recall the symbol that Q1 used after sexual contact with Q2?---No. I can't recall at this time. No.

And you read every page of those notes?---Yes, I did.

Did you have a copy of the file in your office?---When?

At any stage?---No. I had a - - what I obtained when I decided to do a review of the brief. I obtained a full copy of the depositions, medical reports and any other issue that was going to be put up as evidence and I obtained the set of diaries, which was a large volume of diaries. That is what I obtained. So it wasn't the file as such but it was the evidence, the brief of evidence that was going to be put forward, and that was only with me for a couple of days and then it was given to Ms Vicker and then it was later picked up by Mr Brandham and taken back to the Child Abuse Investigation Unit.

And it's your position that you conducted a very deep and extensive review of the file, isn't it?---I conducted a thorough review over a couple of days. That's my - - not of the file, of the brief of evidence.

MR HAMMOND: You never met with the complainant?---No. No, not until the 8th of December.

In your evidence on Thursday last week you say that you weren't prepared to leave the full carriage of this matter to the team that was involved in investigating it. Doesn't that indicate that you had lost confidence in the unit?---No. I think "lost confidence" is too harsh a word - - -

WITNESS: - - - too harsh a word.

MR HAMMOND: What word would you use then?---I would - - exactly as it was. They didn't agree with my assessment or Ms Vicker's assessment on the brief of evidence. I had found significant deficiencies in this particular inquiry as to what they were going to do and what they had done, only concerning the fact that they believed that there was evidence that didn't exist. So as a manager and as a leader it would have been very wrong of me then to just say, "Well, despite all these issues you now have full carriage to go ahead with this." You know, so I put some things in place - checks and balances, so to speak; whatever you wish to call them - to make sure that we did this professionally, that we did it thoroughly and that we were safe in relation to what we were doing.

It's the position of the four police officers that there are many other files in the Child Sexual Abuse Unit that don't have independent corroborative evidence, and they were proceeded with. Is that your understanding?---I know there are some occasions where such briefs are proceeded on, but it has a great deal to do with the situational aspects of the case, and certainly one of the significant issues in relation to Q1's complaint was the time frames in relation to it. But, you know, every case is situational in relation that we deal with, and certainly the time frames impacted on the analysis of Q1's complaint.

Let's get this clear. You do concede that there were other cases at the Child Sexual Abuse Unit at the time without any independent corroborative evidence that proceeded to the preferring of charges?---Don't take this out of context though.

I'm asking you, do you concede - - ?---No. Don't take this out of context.

- - that there were some cases - - ?---It's very important, because it's been reported out of context. The recency is a major aspect of these particular issues.

No. I'll get to that, superintendent?---I think I already said in my - - my evidence that if this had occurred a short period previous, and depending upon all issues like the issues in relation to complainant, and many other issues, and it gets to be a bit hypothetical, but at the end of the day potentially there is in - - with different circumstances.

I'll ask the question again, superintendent?---Yes.

MR HAMMOND: Do you agree that at the Child Sexual Abuse Unit in 1998 there were other cases that did not have independent corroborative evidence?---Well, I don't know that I can actually say yes or no to that, because there are so many other issues to take into context.

So the answer is, you don't know?---No. The answer is it's situational. Every brief must stand alone in relation to that matter.

Are you able to answer that very simple question?---No. Well, I have answered it.

Is that the best you can do?---That's the correct answer, because you're trying to narrow something down to which it shouldn't be narrowed down to. You've also got to remember that that was in the very early stages of my being a part of that unit, which is why some of these officers have the perception of what I should do as a superintendent or not, and comparing me to how other people do business.

Do you also agree that there are other cases of child sexual abuse which have a significant historical element - and by that I mean they occurred many years ago - and that they also lacked independent corroborative evidence, yet they still proceeded with preferring of charges?---I would suggest to you there were a number of cases like that that didn't go forward. But again, it's situational. Let's - - you know, you can't just draw a line in the sand here. They're all situational. Now, are you talking about cases that were 30 years old, or you're talking about cases that were 5 years old, 10 years old? Remembering I've already spoken about the DPP policy, not to prosecute uncorroborated offences that are more than 20 years old. Now, that's something that they put in place with all their prosecutorial experience. You know, that's - - so, you know, they're the sort of issues that you have to look at.

Well, I'll try and put it more succinctly. The four officers, when they complained to this Royal Commission, said that there were other inquiries being conducted by the unit at the same time - - -

MR HAMMOND: - - - at the same time which involved less corroborative evidence. Do you agree with that?

COMMISSIONER: Well, you are saying there was no corroborate evidence, weren't you?

MR HAMMOND: Sorry, this is another proposition - -?---That's right. I'm saying there's no corroborative evidence, and what I'm saying is this - - is that you, given that statement, but in that statement you've just made, you haven't put a timeframe, you haven't talked about aspects in relation to what did exist in these cases. I mean -

Well, I'll read the statement in full, superintendent, and - - ?---Can I have a - -

- - ask you whether you agree or disagree:

"We are concerned by the fact that other inquiries conducted by the Child Abuse Unit at the same time involved less corroborative evidence, had the same time frames of disclosure by the complainants, which resulted in the matters proceeding to arrest, charging and successful prosecution in the District Court."

WITNESS: Well, certainly none that I'm aware of.

MR HAMMOND: Did you make inquiries?---No.

They went on to say:

"Of all cases investigated by the Child Abuse Unit, this was the only one - -"

They've left out "one":

"- - this was the only that Mr Caporn and other senior officers became involved."

WITNESS: I arrived there on the 26th of June - - the 22nd of June.

MR HAMMOND: Yes?---I had been in the USA for 3 weeks after that. I was - - in September I was on an ODC. Most of these people, three of the officers, the four officers, probably had me as their superintendent for about 2 to 3 months in total of me being there.

Well, let's not worry about - -?---They are not used to how I do business, and anyone who is used to how I do business knows that I do get involved in cases, if I see the need or if I see that I can add value.

MR HAMMOND: Superintendent, you have not answered the question one jot. Listen to this again:

"Of all cases investigated by the Child Abuse Unit, this was the only that Mr Caporn and other senior officers became involved."

WITNESS: Well, that's actually wrong, if you give it - - that statement like that.

MR HAMMOND: That's wrong?---It's wrong, given like that. Are you narrowing this to a time frame? Are you saying that this is in that two months in 1998 or are you saying this is the whole period that I was superintendent in charge of this area? Because if you're saying that this was the whole period that I was superintendent in charge of this area, well, you're wrong. You've very wrong. But if you want to narrow it down to that 2 months, this probably was the only case that I was involved in at that time. So, you can't just operate in a vacuum. You must be specific in what you're doing.

I wonder if the superintendent can be shown a memorandum that he wrote to Detective Senior Sergeant Miller on the 25th of August?

MR PETTIT: Are you sure about the date?

MR HAMMOND: The 25th of August 1998 - - sorry, I've read from the subject matter. It's actually dated the 14th of December 1998.

MR PETTIT: Yes. That's D1012867.

MR HAMMOND: I think you now have that, superintendent?---Yes, I do. Yeah.

There are four questions asked there?---Yes.

And this is in relation, of course, to the memorandum from Constable Italiano outlining her concerns?---Yes.

Question 3 is: "Why didn't you advise either myself, Detective Inspector Hawker or Acting Detective Brandham regarding this information."

WITNESS: Yes.

MR HAMMOND: Question 4:

"Why didn't you include the memorandum in the report that you submitted."

And you require your information in the form of a memorandum by close of business by the following day?---Yep.

MR HAMMOND: Do you recall what time Miller received this memorandum from you on the 14th of December?---No, I don't. No.

And you wanted him to respond - - -

MR HAMMOND: - - - him to respond within 24 hours? ---Absolutely.

Because this issue was of critical importance?---Absolutely.

Because it involved a taint, if you like, on the deputy commissioner?---Not at all. That's not the reason. I'll tell you exactly what the reason was. It was because this significant piece of information had come in which obviously impacted on both Q1 and impacted on Constable Italiano. It had been with Senior Sergeant Miller and Constable Italiano for 3½ months and it was only after the complaint file had been received and he had already given me a report that he decided then - - and in his own words on his report, "I'm obliged to tell you about this." I saw this as a very serious matter and I still believe to this day that if the August 25 memorandum had have been dealt with properly that we may not be here today.

What would be the proper way of dealing with Italiano's August 25 memorandum?---It should have been immediately established and investigated. It should have been dealt with in a transparent manner. It should have been taken forward to the divisional office. It should have been registered with professional standards and it should have been investigated. At the very minimum, (...name suppressed...) should have been interviewed. At the very minimum, the inquiry should have been subject to a proper report and a proper approach in relation to it, so whatever the outcome may be that any concerns by Q1, by Detective Italiano and any other inferences that had been made had been clarified one way or the other.

Did you speak to (...name suppressed...)?---Absolutely not, because by the time that I received this file the matter was already subject to a complaint, a complaint that was going to be going to an external body depending on the decision, the final decision that she made, and I actually included on my memorandum of February 4, which is the time when I've sent my file on to the - - the one that went to the ACC - - exactly why I didn't in December start making inquiries about it, because the matter had gone out of my hands by then, but if I'd have got this file on August 25 it would have absolutely been dealt with in a very transparent way and I believe all this perception and innuendo would have been nipped in the bud. You can see by the questions that I put there the seriousness I saw about Sergeant Miller holding back this memorandum and, in fact, in my report on February 4 - - I informally counselled him and in my report on February 4 I recommended to the professional standards area that on completion of the ACC inquiry that Senior Sergeant Miller be formally counselled in not appropriately dealing with the memorandum given to him by Detective Italiano on August 25.

MR HAMMOND: You never wrote to Senior Sergeant Miller at any time, did you, telling him that the way he had handled this matter was inappropriate?---Never wrote to him?

No. Never sent him a memo?---I've sent him this memo and I've formally counselled him in person on two occasions in relation to this. Informally. Informally. I also spoke to him at length about this issue, and I have the notes from our performance report meeting which was on the very next day, December 15. We had a meeting in relation to his performance report. I still have maintained the notes of that, and this was one of the key issues because it all comes down to judgment and ability to manage ethics, but I want to also say that Sergeant Miller in my opinion was suffering from health issues at the time and this was not his normal - - I don't believe that in the past he would have been operating at the level he was operating during this period.

What's the ethical issue involved?---If you're going to manage ethics you need everything you do to be transparent. To hand this August 25 memorandum back to Detective Italiano and tell her, "Look, it's a" - - I mean, if you go by the report he gave me back on this, "Look, there's nothing in it. Just sit on it and don't tell anyone about it." That's not managing ethics because all of a sudden there's the conspiracy theories growing in her mind and in the mind of the complainant, so you're not managing ethics if you're not making these issues clear to them. That's to say - - I mean, who knows - - and I think we get a fair indication of what was going through Detective Italiano's mind by the evidence that she's given in these proceedings in relation to what one - - words are said and they mean another thing.

The next memorandum you received was one by the close of - - or you actually got it the same day. Detective Senior Sergeant Miller wrote back to you on the same day? ---Yes, he did.

14 December 1998, outlining the circumstances of Constable Italiano's note?---Yes.

And he gives you the reason:

"I was reluctant to proceed into some form of parallel investigation into the deputy commissioner based on third party information."

MR HAMMOND: Did you have any issue with that response?---I did not accept his response at all, and I told him that, and one of the issues that I put down in "performance" was the fact that even after sitting down with Senior Sergeant Miller and explaining the situation to him - even after doing that - he still could not see - - he still believed that he - - he still relied on his view of the matter and it was my personal belief, and my experience, that his view on the matter was totally incorrect, and I stand by that and it was why I said he should be formally counselled in relation to the matter. That's how serious I see the issue. And I'm not saying that now. I recorded that at the time and they're documents that you examined.

But as superintendent, you were happy to leave Miller in charge of the Child Sexual Abuse Unit?---No, I wasn't. Within 6 weeks of this issue, he was removed from that position, and I also reported to health and welfare the issues that I thought he was going through in relation to that, and I also spoke to him directly about that.

So it was this issue that led to his removal and the way he handled it - - sorry, the way he handled it, in your view, that led to his removal - -?---No.

- - from the Child Sexual Abuse Unit?---No. This was one issue. There were many many issues. This was one issue. This was just one element of that. If you look at my performance reports notes, there were a whole number of issues that we spoke about in that and there were - - there was a range of issues. This was just - - this was just one element.

But your evidence is that within 6 weeks of this memorandum - -?---Yes.

- - he was removed from the unit?---Yes, he was.

In relation to his response at issue 3:

"I did not advise yourself, Detective Inspector Hawker or acting Inspector Brandham, for the following reasons: the information was third-hand information that may or may not be true."

WITNESS: Yes, but he's not seeing the forest from the trees there. You know? You don't just look at whether it may or may not be true. The veracity of the complaint is nothing to do with why it should have been investigated. You should not make a decision on the veracity of it. You should make a decision to - - to investigate the matter to make it transparent. So no matter what the veracity - whether it be right, whether it be wrong - the matter is dealt with fully and thoroughly. That way, there can be no misguided perceptions; that way, there can be no conspiracy theory.

MR HAMMOND: I put it to you that Miller gave you a very honest response when he said:

"I did not place the memorandum on the original report to you because the information was third-hand."

WITNESS: Oh, let me make it quite clear - and I hope I haven't come across the wrong way - Senior Sergeant Miller believed that what he was doing was right. I have no doubt about that, and I've already discussed the issues he was facing at the time. I have no doubt that there was no malice in what he did. I have no doubt that there was no corruption in what he did. It was just poor judgment, and I believe that judgment was impacted by other issues which I've already discussed. So I certainly don't believe that there was any malice or - - or any corruption in what Senior Sergeant Miller did or not, dealing with this issue.

MR HAMMOND: Detective Italiano, as she was then, also submitted to you a lengthy memorandum, dated the 8th of January 1999?---Yes. All the memorandums after the 7th of December, bar a couple, were all related to the complaint file, the complaint file in relation to the complaint by Q1 that there'd been some sort of intervention, if I can use that word, in relation to her case, and the 8th of January memorandum was Italiano's report on - - basically start to finish, her involvement in the case.

Through October, November, December of 1988? you were very busy on other cases?---I'm always very busy.

But the issue of Q1 and Q2 wasn't your only concern at that time, was it?---Absolutely not.

And the most important matter that we've already canvassed was probably the - - trying to find the culprit for the Claremont serial killing - Claremont murders?---I don't know that it would be fair to say that's the most important issue. It's obviously a very important issue that is being dealt with and I obviously had put in place a significant structure to be able to deal with that and still enable me to deal with the issues of the Personal Crime Division. I mean, that's all about - -

But, Superintendent, you were personally responsible for the Macro Taskforce?---Me personally responsible?

Yes?---I had command of the Macro Taskforce, yes, if you want to put it that way, and I don't have any problems with - - with that.

MR HAMMOND: Did you have any other major investigations on in October, November and December of 1998?---I've got four business areas that all do major investigations. There is no doubt there would have been a number of major investigations. Some I would have actually played a direct role in, others I would have just simply had - - had knowledge of them.

And if we can now turn to the memorandum prepared by Constable - - or Detective, I think by then, Italiano, and in particular page 3 - - -

MR HAMMOND: - - - in particular page 3?---It's not the one I've got up on my screen at the moment.

MR PETTIT: I'm sorry, I missed that. You want the report from Ms Italiano?

MR HAMMOND: Yes, please. January the 8th.

MR PETTIT: It's D1012857.

MR HAMMOND: Thank you. (TO WITNESS): One page 3, in the middle of the page, it says:

"The date for the interview was unchanged. On Wednesday, October 28 1998 - -"

Sorry, I don't think you have it in front of you yet?---I haven't got it. Page 3, go on.

Yes:

"- - I was summonsed to Miller's office and advised that Mr Caporn wished to view the file and that no action was to be taken until he reviewed it."

You'd agree that that was correct?---Just point out where it is, so I can read it for myself?

Sorry, it's around about the middle of the page. "The date for the interview is unchanged - -"?---Interview's unchanged, yep. Yes. I certainly agree with that. Well, I certainly agree that that was the effect and substance of my instructions, yes.

And you also agree with:

"I then had to photocopy the entire file for Miller, who then delivered it to Mr Caporn."

WITNESS: That's what's on this paper, but I didn't get the entire file. I got a copy of the depositions and the medical reports. I didn't get a copy of the entire file. But that's obviously what's on this page here, from Detective Italiano.

MR HAMMOND:

"On November 10 1998, after Mr Caporn had reviewed the file, Brandham, Miller, Wibberley and myself had a meeting at Mr Caporn's office."

WITNESS: That is correct.

MR HAMMOND: Would you not agree that that's an inordinate amount of police resources to be involved in a review of someone who hasn't been interviewed or arrested?---No, they weren't involved in the review. That was when I briefed them on my findings. They weren't in any way involved in the review.

I put it a different way; isn't that an inordinate number of people to be involved in the management of this file?--- They're not involved in the management of this file. I'm making them aware of the findings of my review. I knew that my review would not be received well by Senior Sergeant Miller and Detective Italiano, and I wanted my two inspectors - - and at that time, those guys were both my inspectors. I wanted them present so they knew the full details, which would save me explaining it perhaps two or three times.

Then:

"Mr Caporn stated that we did not have enough evidence to charge Q2, as he considered the complainant's diaries were not good evidence, as they could be more damning to the complainant and there was a lack of corroboration for the complainant."

Do you agree that was your position?---No, that's a very narrow view. There's a whole number of - - range of issues that were spoken of. There are some words in there that I believe are not my words, but if you want me to work through it, I'll work through it with you. The complainant's diaries were not good evidence. Well, what I said was certainly the complainant's diaries did not particularise in relation to the offences and I believed that in some cases they were contrary, and they were. Again, no impact on the veracity; it's the emotional state of Q1. There was a lack of corroboration for the complainant in respect of evidence for court, yes, there was. It stated that Evelyn Vicker had reviewed the file. That's correct, and as the file stood, they would not proceed with charging. That is correct.

MR HAMMOND: And then she goes on to say:

"Mr Caporn then said that regardless of whether (...name suppressed...) confessed or not, we were to release him and that he, Mr Caporn, would reassess the evidence."

WITNESS: Well, again, I've already made it quite clear, I don't know that they are my exact words, but I think that I've laboured to point what my substance and effect of my instructions were in that matter.

MR HAMMOND: What I want to put to you in relation to that statement, and indeed, the one that follows, that Inspector Brandham reiterated what Mr Caporn had said at the meeting, about not charging (...name suppressed...) is that - - sorry, Q2, thank you.

WITNESS: Can I have a look at page 4, please? About what Mr Caporn said about not charging. Now, that's more in line, at that particular time, without me reviewing the - - now, there's nothing in that paragraph that says that Brandham said that I used the word "released."

MR HAMMOND: In relation to what is said in the penultimate paragraph on page 3 - - -

MR HAMMOND: - - - on page 3, you never sought to - - ?---Can I go back, please? Yes. Penultimate. Yes.

My copy's slightly different. I'm looking at the last paragraph of your page 3?---Okay. Yes.

Did you ever respond in writing to Detective Italiano in relation to that statement made by her?---No. Because that's her report, and this is - - and this is where you've been confused a few times. These - - these reports follow up on a very standard procedure in relation to a complaint file. Everyone who's involved in the matter, it's a standard procedure; they report on their version of events from start to finish. This was her report. I had a lengthy discussion with her on the day she handed me this report and we discussed and canvassed a whole number of issues where I tried, as I say, my level best to get Detective Italiano to put her thoughts and feelings on the table. But at the end of the day I wasn't going to send this report back to her because this is a report for the complaint file, and she should do that without interference from me.

Well, the four officers who - - well, the one that heard the instruction and the others than came to learn of what they believed the instruction was, were so incensed by it that they wrote to the Royal Commission, believing it was a corrupt statement by you?---I am really struggling to have a handle on why they had that perception, although, as I say, I do believe that things would have been far different if I could have dealt with the August 25 memorandum as I would have. I would also suggest to you, sir, that up until these proceedings that some of your clients had never seen those memorandums that I'd sent to Miller giving him a rocket in relation to these particular issues, you know, and I think that they're significant issues when you look at the full picture. And if - - and they would have also never seen my report of February 4th. And if you look at all of those issues, if you deal with anything in a vacuum, if you don't have all the information, then you're liable to come up with two and two means twentysix instead of four. Just as I didn't have all the information, because I was not given that August 25 memorandum.

Your major concern after reading of the, or after learning of the Italiano memorandum dated 25 August 1998, was to ensure that there was no damage to the WA Police Service?---Nothing to do with that. It had nothing to do with that. Absolutely nothing to do with that.

You weren't concerned about the perception that Constable Italiano had?---I was concerned about the perception and I was concerned that it had been allowed to grow for 3½ months before I was told about it. And you think of what she was thinking when - - after being told by Sergeant Miller and co that they've got a great brief, and then I come along and do my review and say there's no brief. I mean, you see how the snowball effect occurs. And I was operating without that information and should never have been doing so. There would have been extra measures that I would have taken in this matter if I'd have known about that August 25 memorandum to demonstrate that there was no inappropriate behaviour going on here.

MR HAMMOND: But you were briefing the deputy commissioner and, indeed, Assistant Commissioner Atherton, weren't you, in relation to these allegations concerning the association between - - ?---They'd had - - like on many other significant investigations, they'd had a briefing from me. Having said that, if I'd have received the August 25th memorandum things may have taken a different path there as well, because that matter would have been put on the table, that matter would have been subject to an investigation and that may have precluded me from saying anything to the deputy commissioner in relation to the matter until that was investigated one way or another.

Did you quiz the deputy commissioner about his association with Q2?---Not at all.

Not at all?---Not at all.

Did you speak to Assistant Commissioner Atherton about whether there was an association between the deputy commissioner and Q2?---We had a discussion on the day before - - the day before we interviewed Q1 and her husband, and we spoke with them. We certainly would have had some discussion then because of the complaint and the letter and the information that was in the letter from Q1, bearing - - -

WITNESS: - - - in the letter from Q1, bearing in mind, even at that point on the 7th and 8th of December, I still didn't have the August 25 memorandum.

MR HAMMOND: Did you meet with the deputy commissioner in his office when you briefed him?---Which time?

On any occasion, in relation to the file of Q2?---Yes.

You would have seen the photo on the wall, of Q2 and the deputy commissioner?---Up until these proceedings, I have never seen that photograph.

But you were aware of the association, superintendent, that there was a loose - if I can put it that way - association between the deputy commissioner and Q2?---I was aware in no great depth. I had an awareness that there was some bike rides that they used to go in. That is it. And let me tell you, doing the job that I do, there are many, many times when that sort of loose association, like going to the same meeting a person has gone to or whatever, is the case. I mean, in respect to - - you know, I've been to functions where there are lawyers who are representing people who I'm prosecuting. Now, you know, it could be said, well, I shouldn't be going to this function that these lawyers are at, because they're prosecuting someone who I - - they're defending someone who I'm prosecuting. I mean, you can take that any which way but loose. The additional information that's been given a perception by the complainant and the perception by Constable Italiano on the August 25 memorandum does have an impact, and if that had have been dealt with properly, a lot of this might not have occurred.

But, inspector - - sorry, superintendent, you were briefing the very person who was at the centre of the allegation, weren't you, about what was being said about him?---But there was no allegation to me at that stage. That's the point I'm making. I did not have that information. There was no allegation whatsoever against Mr Brennan. If you look at the August 18 memorandum, he's not even mentioned on that. I had some knowledge, through being a person in the Perth society, that he may have gone on bike rides on occasions that Q2 was also involved in. That was the extent of my knowledge. Some of the things that have been said in here in the proceedings, about the issues of the community work and the contact there, at that point in time, I had no knowledge of that whatsoever, so I didn't even have that depth of knowledge.

Your officers at the Child Sexual Abuse Unit, as you can see from the memorandums, and indeed, one you had at the time, were concerned about the possible association between Q2 and the deputy commissioner?---Which was the one I had at the time which told me that? You find the one that I had at the time that told me that?

MR HAMMOND: I'm talking about the memorandum from Constable Italiano?---January 8?

August the 25th, which you received, I believe, on the 10th of December 1998?---So, your point is - ?

Well, you knew on the 10th of December 1998 that Constable Italiano had a concern that there was an association between the deputy commissioner and Q2?---Yes, and I would - - in no way, shape or form was I briefing the deputy commissioner after the 10th of December. I did not tell the deputy commissioner in that period, and in fact, for many years later, about the existence of the August 25 memorandum. When I got that August 25 memorandum, I didn't tell the deputy commissioner about it, because by the time I got it in December, then it was a matter that was going to be investigated by an external body, so I never, even then, had a conversation with the deputy commissioner to tell him that, "Oh, by the way, there's been this memorandum where it's been suggested ABC." Absolutely not.

But if you were briefing the deputy commissioner on the file of Q2, are you telling me that he never once raised - ever - that he had an association with Q2?---No. He never.

He never told you that?---No.

I find that fantastic?---Find it any way you wish.

I find it incredible?---But you've got to remember, the conversations that I had with Mr Brennan about the investigation was probably limited to maybe three at the outside, probably two.

I put it to you, inspector, that you are covering up?--- Covering up what?

The fact that you did discuss the association between the deputy commissioner and Q2?---I did not discuss the association between the deputy commissioner and Q2.

And your handling of the file at the Child Sexual Abuse Unit was a whitewash?---I think that the memorandums in place clearly demonstrate that my handling of this matter was open and accountable, and I will stand by that 100 per cent. At no stage did I do anything improper. At no stage did I do anything other than my job extremely thoroughly, and I think - - and thank God they are documented. I think the documents clearly demonstrate that.

MR HAMMOND: It was an exercise, as Senior Sergeant Miller said, in death by memorandum. Wasn't it?---When you look at the investigation file, for an investigation that went as long as it is, there is very minimal memorandums on it, and the majority of the one on the investigation file - - -

WITNESS: - - - the investigation file run between Italiano and Miller. What you're getting confused with, and others have, is the complaint file. Now, in context of the complaint file and the amount of memorandums on that this is a very small complaint file. So you're dealing from a dearth of experience in this matter, Mr Hammond. You know, you have no experience in these matters and I assure you that as a complaint file it's a minimal file for memorandums, and as far as an investigation of this nature goes that spanned, as it turned out, over a period of 12 months or more there's a minimal amount and most of that traffic is between Miller and Italiano.

MR HAMMOND: Notwithstanding my dearth of experience, you haven't answered the question. This was a whitewash by you?-- -Well, I think that I have answered that adequately.

Do you deny - - ?---What do you see - -

Do you deny that proposition?---What do you base that on, Mr Hammond?

I'm asking you to answer a very simple question. Do you - - ? ---Absolutely.

- - deny that it was a whitewash?---I did nothing more than my job. There is no whitewash here and I cannot for the life of me see what you can base that on, and I sit here with absolute confidence that anyone, any reasonable thinking person who examines all of the material on this, could not come to this conclusion.

You would agree, wouldn't you, that it's pretty rare for four serving police officers to make allegations of corruption about senior police officers?---Certainly. It's a very unfortunate situation to be in where this happens to yourself, particularly when it's baseless.

Do you agree that it's rare?---Look, I wouldn't really know because I've never been at professional standards. They might get complaints like this all the time - I mean, I don't know - but for four members to go out public like this, yes, certainly in my memory it is rare, and on such a baseless case I would suggest it would be even more rare.

I have no further questions, Mr Commissioner.

COMMISSIONER: Yes. There's just one matter, superintendent. You made a reference in passing to the existence of a complaint on the materials that you looked at for your review. To your recollection, was there any evidence of an early complaint on the part of Q1 in this matter?---No. As I recall, and again it's on my recollection, there was no evidence of early complaint in relation to the matter.

COMMISSIONER: Yes, thank you. Mr Power?

MR POWER: Thank you, sir.

CROSS-EXAMINED BY MR POWER:

MR POWER: Mr Caporn, you have said that you were away for part of the period of the investigation on an officer development course. When was that?---The entire period of September. I actually didn't arrive back there until about the first week of October, I believe it was.

Do you know if the eastern states based psychologist who was referred to on Thursday and the possible second complainant who Ms Italiano wanted to travel east to speak to were in fact spoken to?---Yes. Both of those matters were cleared up. One of the - - it's on the running sheet. The complainant in relation to the possible second complainant was spoken to by Q1. It's been reported on the running sheet that that person had stated that Q2 had done nothing to her and that was the end of that, and in relation to the New South Wales psychologist there's an entry on the running sheet that she's been spoken to by Detective Italiano and that she remembers Q1; but that's it, and that's the words that were used, and that she destroyed all the documents in relation to that matter.

And this is what set of running sheets?---This is the running sheet kept by the investigation team on the Q1/Q2 file.

And these notes were made in whose handwriting?---It appears to be Detective Italiano's.

We know from your evidence that Mr Miller was counselled on the 10th of November 1998 about allowing this investigation to proceed as far as it had without a proper review of the evidence. As the officer in charge of the Child Abuse Unit at that time, what - - -

MR POWER: - - - at that time, what, in your opinion, should he have done?---You need to be working your whole team, that those sort of checks and balances are in place. The situation was then that Constable Italiano had been appointed as an interviewing officer and really had assumed the role of also being case manager in relation to it. If you're going to let that happen you have to put checks and balances in place to make sure more senior people are thoroughly examining the brief. It's not good enough to just accept that the officer is telling you that these things are in place; you need to check them. Particularly at the critical issues, when the critical issues are there, particularly as it was on the 2nd of November when they were going to arrest Q2, whether he said anything or not. If those checks and balances had have been in place this would have been properly supervised, properly inspected and it would never have got to the stage where they were going to carry out what they were going to carry out.

Now, had you been advised of those concerns raised in the 25 August 1998 memo from Ms Italiano to Mr Miller, at or about that time rather than 3½ months later, what would you have done?---An official investigation file would have been started on that. You had a situation where you had both the complainant, Q1, and Detective Italiano with obviously at least - - at the very least a very strong perception that there would be interference by the deputy commissioner. That needed to be dealt with. (...name suppressed...) and others that were at the meeting needed to be interviewed, and the matter needed to be formally investigated and then everyone advised of the outcome of that in relation to whether there had been established that this could lead to some interference in the investigation. It would also have raised it to the level where then we would have been - - it would have gone from the knowledge that Mr Brennan was involved or had been in bike rides with Mr - - with Q2 to another extent where it was actually suggested by the - - Q1 and suggested by Detective Italiano that there was going to be interference in this investigation.

You've expressed the view that the non-action by Mr Miller in respect of the 25 August 1998 memorandum had an impact on the whole event, as you described it. In what way do you believe that an earlier disclosure of that memorandum could have influenced the perceptions of those who had those concerns?--- Well, that matter would have been dealt with at the time, so it would have been dealt with 3 months prior to any of this getting to the point where it was going to be on the point of arrest. And therefore those matters would have been addressed up front and it wouldn't have been a situation where people are being told that there is a good brief in relation to the matter, then all of a sudden the hand comes from down above and, as has been suggested in these proceedings, that, you know, I do a review and all of a sudden I find that there is no evidence. I mean, what you have there is a growing perception of some sort of conspiracy theory, and then that leads to obviously the things that happened after that as well in relation to the investigation where, at the end of the day, there was no sustainable charges laid against Q2. So my point is this; it should have been dealt with up front at the time. It should have involved the complainant, it should have involved the people who were suggested to have heard and seen things, it should have involved Detective Italiano. If that had have been thoroughly investigated either by within the area, by the divisional office or, as it probably should have been, given the person who it was aimed at, by the professional standards area, then I think that the complainant would have seen that we were very serious about any such allegation being made about interference in a case.

MR POWER: Mr Commissioner, I don't have much more. May I continue?

COMMISSIONER: Yes. Certainly.

MR POWER: Thank you. (TO WITNESS): Knowing now of Q1's impression of your second or third telephone call to her - whichever it was - following the meeting that she and her husband had with you and Mr Atherton on the 8th of December, and with the benefit of hindsight, would you have handled that telephone call differently?---Oh, with the benefit of hindsight I would have probably got someone to go and see Q1 rather than dealing with it on the phone. I mean, she's been subject to fairly significant emotional trauma over a number of years now, and in hindsight and hearing Q1 give evidence, and the perception that she had in me trying to achieve a decision, absolutely I would do it differently.

Notwithstanding that, what would or could have been the consequences of your not following up obtaining a decision from Q1 on her written complaint of the 1st of December 1998?- --Well, I'd already been - - from the time that I made the telephone contact I'd already been basically waiting a decision in relation to this complaint, which is basically aimed at the deputy commissioner - - -

WITNESS: - - - the deputy commissioner. Far more, could it be seen, and far more innuendo could have been laid, that the matter was being covered up if I didn't get a decision and didn't move it on and as I point out, regardless of what the decision had been, if the decision had been not to go ahead, I still would have sent all those reports and my report to professional standards with a view of Mr Miller being formally counselled for the August 25th memorandum issue and for the - - for the investigation to be filed, because basically my preliminary work has really conducted an investigation.

MR POWER: And finally, given what you have already said in answer to questions from my learned friend Mr Hammond, with the benefit of hindsight, Mr Caporn, do you have any overarching criticisms about the way in which Miss Italiano conducted the investigation, or Mr Miller's supervision of it, other than what you've already said?---No. I think I - - I've pretty much covered it, except to say that the whole issue of how that area was operating, and the structures, the levels of supervision, have all been dealt with down there. There's been major reforms. They've been given additional resources, additional structures have been put in place. The management team has - - a new management team has been put in place and those matters, where interviewing officers, for example, both interview the complainant and then take the role as case manager - - that does not occur now, and neither should it occur. It's not fair on the interviewing officer.

Mr Commissioner, I have nothing further. Thank you.

COMMISSIONER: Yes. Thank you. Yes, Mr Pettit?

MR PETTIT: Just very briefly, thank you, Commissioner.

RE-EXAMINED BY MR PETTIT SC:

MR PETTIT: Superintendent, do you know who it was that decided that Detective Hawes should take up the file in, I think, January of 99?---It was the management team in place at the Child Abuse Investigation Unit. I can't put it down to a particular person, but certainly I had no involvement in that decision.

Were you made aware of the reason for it?---I was aware that Detective Italiano had some time previously achieved a promotion to detective and was being transferred at the end of her leave. So I was aware of that. I was also aware that Detective Ingham had - - was leaving the area. He left around the same time, of his own volition, in relation to something else he wanted to pursue. The only aspect that I might have had input into was that I wanted someone, other than an interviewing officer, conducting the investigation.

MR PETTIT: Was the appointment of Detective Hawes deliberate in the sense that it ensured that the file did not go to any particular person, other person?---No. No. I mean, I had no involvement. That was an issue for the team to sort out in relation to who would get that. That decision would have been made by the management team at the time and that would have been Senior Sergeant Miller, Inspector Brandham and others involved in that decision, not - - not, certainly, myself. And I don't know Detective Hawes. I've had - - probably spoken to her twice in - - in probably the last 5 years.

Thank you, Superintendent. Nothing further, thank you, sir.

COMMISSIONER: Yes. There is just one question that I should have asked before, Superintendent. That's in relation to Detective Italiano. When she moved into another area, would it be common - - would it be usual to allow her to continue with the file, or would that remain in the Child Abuse Unit?-- -With some of the interviewing officers when they go back, if - - the secondments for the interviewing officers is worked on either a 12 month or 2 year basis, depending on what the situation was.

Yes?---If they were going back into an area where they were going to be continually doing those sort of offences, to support that local business area then we may allow that. Where someone is promoted to a detective and goes out of the area it's a situational basis, case by case. But certainly in this case, it would have been - - and it wasn't, but if I had been asked I would have recommended that an investigation of that nature remained within the central area.

Yes. Is there anything that arises out of that, Mr Hammond?

MR HAMMOND: No, thank you, sir. Sir, the only question I have - and it doesn't relate to - - it relates to some earlier questions, is - - I know it's not my role to tender documents but I did want to put to you, maybe through counsel assisting, the Operation Cathedral information.

COMMISSIONER: Yes.

MR HAMMOND: It related to a significant part of the questions that I asked.

COMMISSIONER: Yes. It was really part of the questioning. I think we'd accept that.

MR HAMMOND: Thank you. I only have this copy.

COMMISSIONER: Yes. Well, thank you, Superintendent. You're excused from further attendance under the summons.

WITNESS WITHDREW

16/09/2002 CAPORN, D.J. XXN

COMMISSIONER: Yes, Mr Pettit?

MR PETTIT: Commissioner, we are going to press on without a break this morning, I take it? The reason I ask that is, we have one further witness who should take only a short time and he's gone to some trouble to be here without a summons.

COMMISSIONER: He's here now, is he?

MR PETTIT: He is here now, sir.

COMMISSIONER: Yes.

MR PETTIT: I'd like to bring him in.

COMMISSIONER: Well, I think you can carry on if he's a short witness.

MR PETTIT: I call Paul Lines, please.

COMMISSIONER: Could I have your full name please, Mr Lines?

MR LINES: Paul Alan Lines.

COMMISSIONER: Do you have any conscientious objection to taking an oath on the Bible?

MR LINES: No, I don't.

COMMISSIONER: Thank you.

PAUL ALAN LINES sworn:

COMMISSIONER: Yes. Thank you. Sit down please.

EXAMINED BY MR PETTIT SC:

MR PETTIT: Thank you. Your full name is Paul Alan Lines?--- Yes.

And you are currently the principal weights and measures officer with the Department of Consumer and Employment Protection?---That's correct.

And I think you've been at the department just this year?--- Yes, indeed; February this year.



12/09/2002 BRANDHAM, F.J. XXN

MR PETTIT: I call Tim Atherton.

COMMISSIONER: Could I have your full name, please?

MR ATHERTON: My full name is Timothy John Atherton.

COMMISSIONER: Do you have any conscientious objection to taking an oath on the Bible?

MR ATHERTON: None whatsoever.

COMMISSIONER: Thank you. You can take the Bible and read out the oath, please.

TIMOTHY JOHN ATHERTON sworn:

COMMISSIONER: Sit down, please?---Thank you.

EXAMINED BY MR PETTIT:

MR PETTIT: Your full name is Timothy John Atherton?---That's correct.

MR PETTIT: And you are an assistant commissioner in the WA Police Force?---Yes, I am.

Your area of responsibility is, I think, metropolitan region?- --It is now, since the 29th of July, yes.

Prior to that?---Prior to that, I was the Assistant Commissioner, Crime Investigations Support.

In 1998, you had the Child Abuse Unit within your portfolio?-- -Yes. I should explain that I took up a commission with the WA Police on the 25th of May 1998. I'd previously been a member of the Queensland Police Service. But, yes, I did have control of - - overall oversight of the Child Abuse Unit, which is within the Major Crime Division.

And do you recall when you were first made aware that there had been allegations made against Q2?---Yes, I do. Shortly after the 18th of August, Acting Superintendent Caporn advised me that there'd been a complaint made, and a person implicated, Q2, had some very loose association with Mr Brennan. I understand that Detective Superintendent Caporn also advised Mr Brennan.

If I can just digress for a moment, what are the arrangements for approval for interstate travel within the Police Force? Is that something that would come to the office of an assistant commissioner?---Yes. The arrangements in Western Australia are a little bit different to those that exist in Queensland. An application for travel would come to me, and I would recommend it. The State Commander would have the final word, and it would then go to the minister's office and the minister approves all interstate travel in relation to police officers.

Is it possible that there were some memos in September dealing with a request for interstate travel, and concerning the investigation of Q2?---September 98?

Yes?---It's possible, yes.

Being a Queenslander, were you independently aware of the status, in this State, of Q2?---No, not at all.

You had to have that explained as well?---I had had that explained to me, yes - -

WITNESS: - - - explained to me, yes.

MR PETTIT: When you took up your responsibilities in Western Australia did there emerge in the next few months some concerns about the operations of the Child Abuse Unit?---As a matter of fact, the weekend that I arrived in WA, which was the weekend prior to taking up duty on the Monday the 25th, there had been some media coverage regarding a report by a member of the Child Abuse Unit which was a response to a number of recommendations arising out of the Wood Royal Commission in New South Wales. The general gist of the media campaign was that several - - quite a number of recommendations had been made about improving the operations of the Child Abuse Unit, and that report had been lying dormant for some time. And that - - in the - - that my first week was consumed with media interviews; it created a great deal of interest in Western Australia and became quite a political matter later in that week. So that was my welcome to Western Australia, if you like; handling that matter in the first week.

And what did you do about that?---I called in the officer who actually originated the report - a young detective named Peter Branchi - in association with detective or - - and then acting superintendent, Detective Caporn. I got a copy of the report, which was quite an extensive report. I spoke to him about it and, on the instructions of Commissioner Falconer, who was quite concerned about the delay in actioning the recommendations, we set about a process of implementing those recommendations over a period of time.

At that stage there had already been a review completed; is that what you're telling us?---Yes. Yes. I understand the review was conducted in the previous year, 1997, as I say, in response to the recommendations arising out of the Royal Commission in New South Wales.

Yes. Is that a review conducted by three individuals? I think Budge, Prins and Sullivan. Is that the one you're talking about?---No. I'm talking about a report that - - the author, I understood, was a Detective Peter Branchi, who was a member of the Child Abuse Unit. I am - - I am - - I have some knowledge of a review that was done by that group of officers, but the actual report that I was interested in at the time was the recommendations of the - - what I call the Branchi report.

Just so that I can be clear about this, can the witness be shown D1012182? (TO WITNESS): This is rather a long report - 24 pages - but it's undated. It's headed - - the review was instigated by Acting Detective Inspector Brandham. Approved for action by Acting Detective Superintendent Caporn. That's its front page. Are you familiar with that report?---No. I can't - - I - - I have some vague recollection of the review but I can't recall that report.

MR PETTIT: In any event, that's not the one you're telling us about?---That's not the one that I was referring to, no.

Could we have a look at D1012228?

(TO WITNESS): That's the document you - - ?---That's the one I'm referring to, yes.

That's a 58-page document, so we won't take you through it?--- It's quite comprehensive. There's quite a number of recommendations.

Thank you. Now, after you were informed of the file concerning Q2, you were aware at that stage that Mr Caporn was briefing the deputy commissioner on the matter?---On occasions, yes, I was.

And did you attend any of those briefings?---Not from my recollection, no. But David Caporn was keeping me briefed at the same time about the progress of the investigation, so it wasn't the case of going directly to Mr Brennan. He would brief me concurrently, and that - - that's a practice that's continued in relation to a number of fairly high-level investigations - - -

WITNESS: - - - high-level investigations.

MR PETTIT: You've been in the West Australian Police Force for only 4 years or so?---Just over 4 years, yes.

And prior to that, you had how many years in Queensland?---27 years.

And on leaving Queensland, you had attained what rank?--- Superintendent.

From your experience, here and in Queensland, what can you tell the Commission about the interest taken by police management, where there is an accusation against a public figure?---Well, obviously there is - - there are issues in relation to high-profile figures. I mean, they get treated the same way in terms of deciding whether or not there is sufficient evidence, certainly, but in terms of negative implications for, I suppose, the image of the service, senior management obviously are always concerned that, if charges are going to be preferred against a person who we will call, for want of a better word, high profile, that all the i's are dotted and the t's are crossed. I think that's just human nature, rather than a procedural thing. I mean, I think if we are going to go out and charge, say, a member of Parliament for a fairly serious offence, there would be a fair degree of scrutiny and interest in the matter from senior officers.

#

Was that the case in Queensland?---Well, I can't say that I've been involved in any matters in Queensland of this nature, so I wouldn't like to comment on that.

Is the Q2 matter in Western Australia unique in this regard, in your experience?---No, no. I would - - I would say that the investigation into the Claremont murders, the same degree of scrutiny in relation to the evidence has been applied in that matter, too. Regardless of the profile of the person of interest.

Mm?---Because of the huge amount of community and media interest in the case.

Well, am I being too cynical in suggesting that the scrutiny by upper management is designed entirely to protect the police force in the media?---I, in the years since this matter came to my notice, have seen no suggestion than that's - - than otherwise that is the case, yes. That it's merely concern that there is no embarrassment to the service by this Q2 being prematurely arrested and charged with what amounts to very serious charges.

You've already told us that Mr Caporn was being briefed and in turn briefed you and the deputy commissioner?---Yes.

MR PETTIT: Were you given advance notice by Mr Caporn that he intended to personally review the file?---No. My recollection was that Superintendent Dave Caporn came to me after he'd reviewed the file and advised me that he had undertaken the review, and that was in November 98, early November 98, and if I paraphrase what he said to me, he said, "I'm glad I did, because they would have rushed out and arrested him and I don't think there's sufficient evidence there at this stage." And can I say that that level of scrutiny by Detective Superintendent Caporn is not unusual. I've seen that same level of scrutiny in most of the - - this - - the major investigations that he's overseen in the time that he's been under my control.

Are you saying that it's not unusual for Mr Caporn, or it's not unusual for superintendents generally?---I'm saying that Superintendent Caporn is a very diligent and hands-on superintendent. He takes great pride in his work - - -

WITNESS: - - - in his work and would not let, you know, a major investigation going wrong - - he would not let that - - would not want that to impact on his image as an investigator and therefore he takes a great interest in matters under his investigation; hands-on, if you like. He's very hands-on. It's not in terms of interfering. It's simply oversight. He's a very thorough investigator. In fact, I'd go so far as to say - and I preface this by saying that I worked for most of my career in the Police Service in Queensland either with or for detectives - he's unreservedly the most thorough and competent detective I've ever worked with in my police service, and that's 30 years this year.

MR PETTIT: The matter reached your desk, I think, in early December following a letter from the person we're referring to as Q1?---Yes.

I think it was referred to you by the then Commissioner?---Mr Falconer. That's correct.

Mr Falconer?---Yes.

And it was in the nature of a complaint from Q1?---It was.

Did the Commissioner of Police speak directly to you about that matter?---He did.

And asked you to do what?---He asked me to - - to review the case and brief him as to whether there were any consistencies (...on tape...) or matters for concern.

That letter mentioned Mr Brennan's name?---Yes.

Was Mr Brennan advised about the letter?---Not by me.

Did you have any discussions with Mr Brennan about the letter?---No, but my understanding at the time was that Mr Brennan was aware that there was scuttlebutt in the unit that he was allegedly a friend of Q2's. He was aware of that matter.

Did you speak to him about that?---He spoke to me in - - not so long after Superintendent Caporn advised him, as a result of the - - in August, and reassured me that Q2, while he had some association, very informal association, with Q2 through his bicycle riding activities, that he was not a personal friend of Q2's, nor was he related, and that the investigation should take its course. In fact, I remember him saying to me "If there's evidence there, he should be charged."

MR PETTIT: In any event, after speaking to the Commissioner of Police, I think you immediately involved Mr Caporn?---Yes, I did.

With a view to speaking to Q1?---Yes. I firstly spoke to Detective Superintendent Caporn and got quite a comprehensive briefing from him of where the investigation was at and we made arrangements for Q1 to come in, because at that stage we'd received some advice from the DPP that on the evidence at that stage of the investigation there was no - - there was insufficient evidence to press charges against Q2.

We've heard it suggested in evidence that there seemed, from Q1's point of view, to be an inexplicable urgency in her attendance at your office. Was there, to your mind, some urgency?---Well, yes, there was in one regard. I mean, I'd been asked by the Commissioner personally to have a look at the matters that she'd raised in the letter and she had raised some suggestions that there was improper conduct. My brief was to very quickly ascertain from her whether - - what the nature of those concerns were and, if necessary, recommend that further investigation be made.

You and Mr Caporn met her and her husband on the 8th of December?---On the 8th of December, yes.

Tell us generally about that meeting?---She and her husband came in. We then - - basically, Detective Superintendent Caporn gave her and her husband the same briefing that he'd given me a few days before about the whole process of the investigation, and then we explained the advice that had been given to us by the DPP - - -

WITNESS: - - - by the DPP that insufficient evidence at that stage was there to press charges. As a result of that she was still expressing some concerns, personal concerns, that there may have been some improper interference in the investigation. I made an offer to her for her to go away and consider the matter for as long as she liked and if she still had - - if she was still not satisfied with the advice that we gave her, albeit indirectly from the DPP, that there wasn't sufficient evidence to charge, that I would arrange the DPP counsel personally to come down and speak to her and her husband, and I also reassured her that if she was still unhappy, or still in her own mind unhappy, that there had been some improper conduct, that the matter would be passed on for investigation.

MR PETTIT: Was Mr Brennan mentioned by name in that discussion?---Yes, he was.

Do you remember what was said about him by Q1?---Well, she - - she told me that she had been told, it wasn't direct evidence, it was - - she had been told that (...name suppressed...) - sorry, Q2 - was a good friend of Mr Brennan's and had prior knowledge of the arrival of the investigators and it was her allegation that the alleged association between Q2 and Mr Brennan affected the outcome of the investigation.

Was she given any assurance on that score by you or Mr Caporn? ---No. I didn't see it was my place to give her any reassurance. I mean, I don't have any personal knowledge of the relationship between Mr Brennan and Q2. I simply - - my role there was that if she still felt that there was a matter to be investigated in relation to alleged improper conduct that my duty as a senior officer was to pass that on to an investigating body.

Did Mr Caporn attempt to persuade her that there was nothing in that allegation?---Not in my presence, no. In fact, I recall Mr Caporn being quite supportive of the matter being further investigated if she was still not satisfied.

If she were dissatisfied because she suspected that Mr Brennan had been involved improperly in the investigation and if nothing was said in that regard by you or Mr Caporn to assure her that there was no interference why did you not instigate an investigation immediately? In other words, what is there for her to think about?---Well, the main thing I wanted her to think about was whether she was accepting of the advice regarding the DPP's opinion about the outcome of the investigation. I was quite happy to refer the file to Internal Affairs - professional standards, Internal Affairs at that stage - but I also wanted to be satisfied that she was happy about that outcome because, as I say, I had made an offer to her that I would get the DPP to send someone down personally to explain their decision to her.

MR PETTIT: Yes, but that's all shutting the gate after the horse has bolted, isn't it? I mean, the concern she expressed to you was that the evidence which was to go to the DPP was deficient precisely because there had been interference in the investigation resulting in Q2 being tipped off, resulting in him being prepared for the interview and ultimately declining to be interviewed?---That's probably the case but, as I say, I mean, at that meeting she was still of a mind that there had been some improper interference. It was always my intention to refer the matter but I gave her that cooling off period first prior to then referring it to the Professional Standards portfolio. I mean, that was a judgement call of mine and I have to take responsibility for it.

No inquiries were made by you or at your direction into whether there was any substance to the allegation that Mr Brennan may have interfered?---Well, I don't think I have a responsibility to do that. My responsibility if I become aware of any allegations of police misconduct is to direct those to the Professional Standards portfolio and then they make the call as to whether it's going to be investigated internally or referred to another agency.

And you didn't do that on the 8th?---I didn't do that on the 8th, no.

And you waited to see whether Q1 would change her mind? ---Yes. Well, I asked her to get back to me within a week but in actual fact she didn't. She took some time to - - -

WITNESS: - - - took some time to return, and in fact, she actually ended up writing a letter back rather than contacting me directly, which was the invitation that was given to her.

MR PETTIT: During that meeting, did Q1 say anything to implicate Mr Caporn?---No.

Did she mention any events in which Mr Caporn would have been involved?---Not that I recall, no.

So, her concern was restricted to the possibility that Mr Brennan had intervened?---Her concern was restricted to matters that she'd been told, in her own words, by the investigating detectives regarding the relationship between Q2 and Mr Brennan, and the fact that Q2 appeared, in her - - and this is the advice that she'd been given, appeared to have had some prior knowledge that he was to be interviewed.

Did you get any indication from Q1's demeanour at the end of the meeting that she was angry?---No, I wouldn't describe it as anger. She - - she was a very traumatised woman. She was probably confused and in her own mind still unhappy that - - well, not unhappy; she was still confused about what had happened and she - - she couldn't - - I don't think she could comprehend that no complaint could be made, and in her own mind, something like that be compromised by what had been told to her as being an association. So, she was uneasy about the alleged association more than the outcome regarding the evidence, the advice of the evidence, but as I say, my call was, give her a week to think about those issues. If she was still unhappy about either or both, then I would take some action at the end of that week.

Do you accept the criticism that, in respect of her suspicions regarding Mr Brennan's interference, she was given nothing further to think on by you or Mr Caporn?---I don't know what you mean by that.

Well, really the effect of sending her away for a week was to see whether she would simply lose interest in that allegation?---No. No, I had no doubt that she was not going to lose interest. I was - - personally, I had no doubt that she would come back, and wanting to continue to press her complaint that she outlined in her letter to Mr Falconer of 1 December. The only - -

Well then, why send her away?---Well, because as I say, it was my judgment call that I gave her the week to decide about the evidence, lack of evidence matter, prior to forwarding the whole file to Professional Standards.

Yes, it seems to be, to me at least - correct me if I'm wrong - two very discrete matters here. One is whether there was enough evidence to pursue a prosecution of Q2; quite independently of that, there was another issue, whether or not the investigation had been interfered with?---Mm.

MR PETTIT: I can understand, and I would leave to one side the first issue and pursue the second. On that score, your evidence is that you gave Q1 no information, no assurance, simply asked her to think about it?---Well, I couldn't give her any reassurance because the matter, at that stage, hadn't been investigated. The matter was the subject of rumour and innuendo within the Child Abuse Unit, something which had been drawn to my attention. The matter had not yet been investigated, so I mean, I don't see how I could give her any reassurance about the matter. And what would I say? I don't know the relationship between Mr Brennan and Q2. I'd received some assurances about that by Mr Brennan. I had no knowledge of the actual - - what had transpired in relation to the interview with Q2, when the investigators went to speak to him. She - - she alleged in her letter that he had been aware, or allegedly been aware, of their impending arrival, but I had no independent knowledge of that, so I don't see how I could have given her any reassurance, but - -

No, I understand that - -?--- - - I certainly - - I was prepared, if she was still unhappy at that stage, which she clearly was, to refer the matter for further investigation.

Yes. Perhaps I'm wrong in my premise. Perhaps it's not the case that the two matters were completely separate. Would you agree with this; that - - -

MR PETTIT: - - - you agree with this; that should she have explained to her clearly the nature of the investigation and exactly what went on and what was done and what wasn't done and why, she would have faith that there was no interference whatsoever by anybody?---That's - - that's probably quite a fair assumption because, as I say, the briefing that we gave her and her husband was very comprehensive in terms of who was interviewed and what evidence was gathered, so, I mean, I would have hoped that that may have given her some reassurance, but my own assessment of her demeanour at the time was that regardless of the thoroughness of the investigation, she was convinced in her own mind that the outcome had been compromised by - - you know, by the alleged association, and she would press the matter.

All right. But now I have to return to my original point. On that assumption, it rather overlooks the gravamen of her complaint; namely, that the reason there was insufficient evidence was because the process, in her mind, had been corrupted. Do you see the point?---I see that point, and I accept it. And, as I say, I take responsibility for giving her what I was hoping would only be a week to think about the - - the lack of evidence matter before referring it for further investigation. Now, that might have been a bad call on my part, but I can assure you that there was no malice aforethought in regard to that. That was simply a call on my part. It was a major investigation, there was a huge file on it; the matter would - - would be referred through if she was not satisfied with the outcome to DPP or to Internal Investigations in relation to her suspicion. There was never - - never any suggestion that wouldn't happen. Simply I gave her that cooling-off period to consider the advice from the DPP.

In any event, she did not return to you within the week or indeed within the month?---No. It was some time, and I do recall some conversations with Detective Superintendent Caporn, and I asked him to - - to contact Q1 and ask her whether she'd come to a decision about the advice from the DPP.

So he did that at your request?---He did that after discussion with me, yes, on one or two occasions.

And were you aware there were more than - - there was more than one call to Q1?---I believe there were at least two, yes.

Did Mr Caporn report to you about each of those telephone calls?---I can't recall exactly, but he certainly gave me some feedback about one or both of them, and the advice was that she was still considering the matter and she would get back to us as soon as possible.

MR PETTIT: And the next thing that happened I presume is that you received the letter of 4 February in which she elected to take up your suggestion, apparently, that the matter go to the Ombudsman?---No. She said Ombudsman in her letter, but I actually referred it to the professional standards portfolio.

Yes. Well, can you recall whether you mentioned during the meeting of the 8th of December the option of professional standards, Ombudsman, ACC - those sorts of things?---Well, I may have explained to her that the Ombudsman's office oversaw all investigation - - internal investigations by police, but of course if there are any matters of serious - - allegations of serious misconduct almost inevitably they'd be investigated by the Anti-Corruption Commission. So I don't know whether she's misinterpreted my mention of the Ombudsman as saying that the Ombudsman will actually conduct the investigation, but obviously in allegations as serious as these I would expect it would have eventually ended up at the ACC, as I believe they did.

The letter does not say but implies some dissatisfaction with Mr Caporn's telephone call?---Might I refer to the letter if you have a copy of it?

Sure. It's D1012858. Oh, sorry. No, that's not - - it's D1012860. I may have said it was a letter to you. In fact it's a letter addressed to Mr Caporn, but - - -

MR PETTIT: - - - addressed to Mr Caporn, but copied to you?-- -Copied to me, that's right.

MR HAMMOND: I wonder if that could be replicated on our screens?

MR PETTIT: Yes, it will be.

MR HAMMOND: Thanks.

MR PETTIT: The passage I was referring to is the passage beginning with the word "Finally." "Finally, I would prefer further communication to be in writing or in person at a formal meeting"?---Right.

That's an inference you haven't previously drawn?---She may have been unhappy at being contacted by telephone. I'm not sure. I mean, that's probably a matter that would be better put to her, but - - but certainly she appears to not be happy with being contacted by telephone.

Did Mr Caporn have, to your knowledge, any more to do with the matter after receipt of this letter?---Not to my knowledge, no.

And what did you do about this letter?---I referred the matter through the - - through the Commissioner to the Professional Standards portfolio.

And we now know that - -?---With a recommendation that it be investigated.

And we now know that they in turn referred it to the AntiCorruption Commission?---I believe so, yes.

I think that's all I want to ask. Is there anything further about the matter that you want to volunteer?---No, there's nothing further that I can volunteer at this stage.

Thank you.

COMMISSIONER: Yes. Thank you. Yes, Mr Hammond?

MR HAMMOND: No, no questions, sir.

NO CROSS-EXAMINATION BY MR HAMMOND

COMMISSIONER: Mr Power?

 MR POWER: Thank you

CROSS-EXAMINED BY MR POWER:

MR POWER: Mr Atherton, was one of the reasons why you were keen for a timely response from Q1 on her decision about whether to take the matter further or not, the serious nature of the allegation?---Yes, obviously. And of course, as I said, a matter that - - I spoke to Mr Falconer and he referred the communication letter to me and asked me to investigate it. You know, one doesn't sit on commissioner's files for too long before getting a - - particularly with Mr Falconer. So it implied rapid response.

Right. When you indicated to Q1 that you would like a response within a week, did she indicate to you in any way that she would attempt to do that?---Yes, she did. She said she'd think about the matter and get back to me within the week.

Yes. Thank you, Mr Commissioner.

COMMISSIONER: Thank you. You have no further questions?

NO RE-EXAMINATION

COMMISSIONER: Thank you very much. You're excused from any further attendance under the summons. Thank you?---Thank you, Commissioner.

WITNESS WITHDREW

12/09/2002  XXN; ATHERTON, T.J. XN

MR PETTIT: Call Bruce Brennan.

COMMISSIONER: Could I have your full name please?

MR BRENNAN: Yes, sir. My name is Bruce John Brennan.

COMMISSIONER: Do you have any conscientious objection to taking an oath on the Bible?

MR BRENNAN: I do not.

COMMISSIONER: Thank you.

BRUCE JOHN BRENNAN sworn:

COMMISSIONER: Thank you. Sit down, please.

EXAMINED BY MR PETTIT:

MR PETTIT: Your full name is Bruce John Brennan?---Yes.

MR PETTIT: You are deputy commissioner in the West Australian Police Force?---Deputy commissioner, operations.

And you have been for some time?---Yes. Since February 96.

You've had how many years in the force?---I'm into my 38th year now.

I won't ask you to run through career history. I want to go directly to the matter at hand. You, as at 1998, were acquainted with the person we've been referring to in these proceedings as Q2?---Yes.

MR PETTIT: Do you recall when you first met Q2?---Yes, I do. It would have been in about June of 1996. It was in relation to a charity bike ride that he was asked to attend as a celebrity. I was asked to attend as a deputy commissioner supporting the troops on the ride - and by "troops" I mean police officers and other community-minded people on that charity ride - and I was introduced to Q2 by a person who was known to me, a very prominent (...name suppressed...), and that was my first meeting.

That was a charity ride connected with the police?---It was a bike ride that was for Police Legacy. They were to be the beneficiaries of any moneys that were generated from that ride.

And that's a charity directed towards assisting the families of police officers in one form of difficulty or another? ---Yes. Families of police officers who had passed away and children or widows and that type of thing.

You say you were introduced but did any other social interaction, apart from shaking hands and saying "Hello" occur on that occasion?---The nature of those rides means you ride in teams and as I recall on that occasion there were two teams of 15 riders. At that stage I hadn't ridden a bicycle for 25 years, so my involvement on the bike was minimal, may I say. Q2 was a rider of some note and I didn't see a great deal of him, to be frank, and occasionally throughout the course of when the two teams met I would see him and, you know, there was probably some chat but nothing specific.

Have you encountered Q2 in other organised charity rides? ---Yes, I have. There are a couple of major rides that are associated with Police Legacy. One is the Karratha-Broome ride, the other is the Albany to Perth ride. They are what is termed "marathon relays" where you work in teams and you have a period of time out on the bike. You can ride - - it's usually split into segments of 100 K per segment and you can ride it all or you can ride some of it. Now, I was associated with him on one of those rides, in 98 I think the first one was, and I had been on one other ride - that wasn't a charity ride, it was a social ride - when he called around to Police Headquarters one day with two associates and we went for a ride around the river.

All right. I'll come back to that second matter later. You say there are two charity rides for Police Legacy. Are they annual events, are they?---Yes, they are.

And since 96 you have entered only two in which Q2 has also entered?---Yes, I think - I think there's only two. Maybe a third but I - - I'm uncertain.

MR PETTIT: Well, are you uncertain how many you've ridden in?---Yes, because I've done other rides and there are certainly two that he was there. Could have been a third but I'm not sure.

The second of those, the Perth to - - sorry, the Albany to Perth - - ?---Yes.

Do you recall the riders meeting in Albany prior to setting off?---Yes, I do. As usual, there's a - - there is a muster and that was at the - - on the foreshore down near the Foodland grocery chain's parking area. There was an assembly at 6.30 am - - -

WITNESS: - - - assembly at 6.30 am for the riders and the support crews, and that entailed having breakfast, coffee or tea and just generally making sure that your equipment was right, that your gear was where you wanted it to be, accessible, and making sure that the team tactics were sorted out. So, and on that occasion in 98, I did mingle with Q2, as I did with many others, because that was my - - that was expected of me as deputy commissioner and representing the police hierarchy.

MR PETTIT: At that point, you had established something of a history, though, of interaction with Q2 in other matters than charity rides?---Yes. Following our first meeting on the Broome ride, he advised me that he was involved with dealing with indigenous communities, remote communities, with dysfunctional families, dysfunctional youth in particular, and that he was seeking a degree of cooperation through the Police Service with some of the key players out in remote areas, and I think the first one he referred to was Laverton or somewhere out that way, near the central lands, and I believe on a number of occasions that we had discussions about this. I think I recall having telephoned the local police and said that this fellow and an associate of his were going to Laverton and that I would like them to assist them in their community work, because essentially it would benefit us, in a very pro-active way, because an ounce of prevention is better than a power of correction, a pound of correction later. And so it seemed to be a good issue to pursue and our people were keen, and I'm told, cooperative.;

All right. Well, I'll come back to those interactions, but at the moment I just needed you to explain that on the occasion of the bike ride from Albany to Perth, Q2 by that stage was quite well-known to you?---Yes.

And I think there was a photograph of you taken?---That is right.

Is that something that you organised?---No, I didn't. I wasn't aware that there were going to be any particular photographs taken and it was during this assembly, muster, in the Foodland car park that we were having breakfast. I was a bit late there, a lot of other people had eaten their breakfast, and I got a bowl of cereal and - -

I think we've actually got the photograph, so you can speak to it. Can we have D1013398? (TO WITNESS): You were saying that there was some breakfast?- --There was some breakfast. I came a little late. I got a bowl of cereal and we were geared up in the appropriate sponsors' shirts and gear and so on, and Q2 was standing near a patrol car that was going to escort us on this ride, and I got a spoon containing some of the cereal and said to (...name suppressed...) because it was - -

MR PETTIT: Q2; we'll have that corrected?---Q2, thank you. Said to him that because of the fact that he was a fairly ordinary rider, he probably needed to get some extra calories on board to assist him in the ride. I mentioned carbohydrate packing or something, and there was a photo taken of that. Later, I saw that photograph reproduced in "Newsbeat" which is an internal police magazine. It's a method of us communicating certain things with our people. Now, that photograph was in the back of the "Newsbeat" magazine and there was a competition being run by the "Newsbeat" people, internally, that if you can put a caption - - -

WITNESS: - - - if you can put a caption in to the photograph that reflected what they thought could be being said by the two people at the time, then you could win a specified prize. So that was run in our Newsbeat. There was quite a few entries and - - and the one that - - and I - - and I chose the winner. The one that won it was a person from down at our media and public affairs, because of the clever captions that he had included on it. Because our former Commissioner, Mr Bob Falconer, had a saying, and it was to do with the huge change programme that we were undergoing at that time within the organisation, and the saying was that, "We don't have to work harder. We have to work harder and smarter" or "smarter and harder", so hence the caption.

MR PETTIT: And hence also the reference to Delta?---And hence the reference to Delta. And I thought it was a very clever caption and that same person from our media and public affairs sent me a copy of that photograph with Q2 and myself and a few other people in the background, and I put it on the wall along with some other photographs that I have.

It was - - this bike ride, I can tell you, was on the 1st of August 1998?---It was August.

And on the 20th of August the photo I think was on your wall?- --It could well have been. It was - - it wasn't a lot of time involved in - - when it appeared, but I don't know who - - who could give you that advice that it was on my - - my wall on the 20th of August. I don't even know that myself.

We've finished with the photos, thanks. (TO WITNESS): Now, going back to the interactions between you and Q2 in the intervening period - that is, from 96 when you met him and 98 when this bike ride occurred - in what respects was there interaction? I think you've told us about Q2's work with remote communities?---Yes.

Were there any other contexts?---Well, there was one - - one other. He was always wanting me to come for a - - a ride with him, and at that stage he was several levels above my ability as a bike rider, and I kept stalling him. We'd talk about remote communities and his involvement and - - and tee up whatever else was necessary to be teed up. It was either with him or the person that was working in direct association with him with the - - a (...name suppressed...) which he operates. And on many occasions he would - - he would ask me to come for a ride with him when I've got time. Well, time's not something that I have a lot of, but eventually one day I did go for a ride with him, another guy that I was told was an Australian champion bike rider and - - and his associate who had only just started riding. And we went for a ride around the river. It probably took us about an hour. And they went their way and I went my way at the conclusion. And there were, over a period of time, a number of phone calls, but all - - all to do with our association and work-related matters.

MR PETTIT: In response to a summons to you you provided to the Royal Commission your journals?---Yes, I did.

I want to take you to some entries. Can we first have D10122 - - sorry; 2664.

MR PETTIT: I'm sorry, I've not given the public version of that. It should be D1012872. (TO WITNESS): It's your habit, I think, to keep at least a very neat journal, and quite amply entered, I think?---Yes. I - - I do keep a journal, from which I leave sufficient information. If I have to backtrack for whatever reason, there is some - - some reasonable reference there. Sometimes the entries are not as comprehensive as I would like them to be, but time permitting, I do do it when I can.

I think this is a reference to - - and I'm not sure why any of this is blacked out, but I can tell you that it reads, "Met with Police Legacy people re charity bike ride, Albany/Perth." That's on Friday, the 31st of July?---Yes.

Who are the Police Legacy people?---That was - - that was at Albany. They were down there. They were essentially John Weaver, who was the president of Police Legacy, there was Senior Constable Michael Robinson, who was the manager of Legacy. There were various Legacy employees and the idea of that meeting was to meet the other people in the team that you were going to ride with on that particular occasion.

I see. The second is D1012873. You refer to yourself as "BJB"?---Yeah, I do.

And you refer to the Commissioner of Police as "COP"?---Yes, I do. Or by his initials, but usually COP. It's easier to write that.

Again, our - - seems to have been slightly overzealous with the blacking out. Perhaps I can read it to you. It says:

"COP plus BJB met with Q2 re Aboriginal Youth Reserves metro and country."

That's on the 21st of August?---Yes.

Do you recall that?---I do recall it, yes.

And the Commissioner of Police himself was involved?---Yes, he was. He came into the room and I was telling him about this type of work that these people were doing, Q2 and his associates, and it was just a general familiarisation for the commissioner of the day with the sorts of things that were going on. He was keen on the pro-active issue and aspects of policing, and that was one of those ventures that I believed that we could set up an alliance. One of our strategic intentions as an organisation at that time was to foster partnerships and strategic alliances, and this was one such alliance that I thought was well worth pursuing.

MR PETTIT: Yes, but Mr Brennan, what strikes one as noteworthy about that meeting is that on the evidence we have, it occurred the very next day after you had been briefed by Superintendent Caporn about allegations made against Q2. Did you not think it wise to - - unwise to proceed with a meeting, in those circumstances?---No, I didn't think it wise or unwise. I mean, the meeting had been scheduled and I would have, without a doubt, mentioned it to the commissioner at that time, that there was some allegation, but there are many allegations made and not all of them reach fruition, so at that stage, we carried on with business as usual. He was aware that there was an allegation, but that is all.

MR PETTIT: By "he" you mean the Commissioner?---Yes.

The next one is D1012874. It reads: "Meeting with Q2" and another person. You know that other person?---Yes, I do.

"Re assistance with dysfunctional families and cooperation with" another person "from the minister's Aboriginal Advisory Council." Do you recall that meeting?---Yes, I do.

And is that to do with the remote communities?---Yes, it is.

And do you recall what was the purpose of the meeting? ---Not specifically, but it would have been in furtherance of Q2's involvement and his associate's involvement with, as it says there, dysfunctional families and trying to work with Pamela Walsh, who was the chair of the minister's Aboriginal Advisory Council at that time, trying to keep everybody in the loop so people knew what was going on.

I want to go back to the few days prior to that. Can we have D1012667?

(TO WITNESS): There's been some evidence - - incidentally, have you been following the evidence in these proceedings? ---Not - - not totally, no.

Have you read the evidence of Q2?---Yes, I have.

We've heard evidence, which you may be aware of, to the effect that you were overheard at a meeting making reference to Q2. Have you read about that evidence?---Yes, I have.

You were at a meeting of the Police and Nurses' Credit Society at 1700 hours on Monday, the 24th of August 1998, according to your diary?---Yes.

It is, we assume, at that meeting that you were relating the experience of your bike ride from Albany to Perth?---The meeting was held, conducted, and as was the custom after the meeting people stayed on and either had drinks or coffee or whatever they wanted. It wasn't something that I particularly liked doing because I had the drive home, or get home and there was plenty on, so I usually excused myself from those meetings and moved out. As I recall, at one of those meetings my phone sounded off and I just put it on hold. A message was left, and on the way down in the lift at the Police and Nurses' Credit Society building in Adelaide Terrace in Perth I've turned this phone on and recovered the message from that Messagebank and it was a message to ring Q2. So the person or persons that I was riding down in the lift with questioned me in relation to Q2 and I told them that I had been associated with him on a few bike rides and so on and we had been dealing with matters to do with the indigenous communities, and just generally chatted in a fairly light-hearted way because here am I listening to this telephone call and everybody is watching with some expectation, even though it's none of their business but, you know, I just - - as is my style, just let them know why I was taking a phone call and not talking to them. So - - or accessing the Messagebank. So that was about the size of it.

MR PETTIT: We know also that you did in fact make a phone call at 8 o'clock that evening?---Yes. I don't specifically remember making it, but - - -

WITNESS: - - - remember making it, but - - but I - - I did return that call. If it was 8 o'clock, then that would be right. It's available for - - through CC Arts. So - - and - - and that telephone call would have been in relation to some indigenous issues that - - and meeting - - and meeting with a community that Q2 and his associate had in mind. I note some time further on, and you may well refer to it, in my diary, my day book, that I did have a meeting with him a couple of days subsequent to that telephone call.

MR PETTIT: Yes.

COMMISSIONER: Would that be a convenient time, Mr Pettit?

MR PETTIT: Yes, it would. Thank you, sir.

COMMISSIONER: We'll adjourn until 2 o'clock.

AT 1.02 PM HEARING ADJOURNED

AT 2.04 PM HEARING RESUMED:

COMMISSIONER: Yes, Mr Pettit?

MR PETTIT: Mr Brennan, before lunch we were canvassing the telephone call we know from CCRs to have been made on the evening of the 24th of August and I think you had intimated that it was - - although you don't recall the conversation it's likely to have concerned the meeting which you subsequently had 2 days later on the 26th?---That is so.

Should we draw the inference that Q2 had your mobile number available to him?---If he rang it then either I would have given it to him or he may have got it from one of my staff, but I can't recall giving it to him. I don't - - I don't give it to everybody, as you can well imagine, but it's likely that a staff member in a genuine gesture would have given him my mobile number.

How was contact between the two of you for the purposes of Q2's professional activities usually instigated?---Usually from him to my secretary or my staff officer, but he wouldn't know my direct line, the one that goes straight through to my desk.

I just want to take you through some other entries in your journal - if we could have - - we've already dealt with a meeting on the 26th. If we could go now to D1012875.

(TO WITNESS): You will see at the foot of the page that reads Q2 and a female associate of Q2 "meets (...name suppressed...) re assistance with children involved in criminal activities". It's a bit hard for you to discern that but perhaps there's no reason why you can't refer directly to your journal?---Yes, I see that entry.

Now, does that have to do with the same general topic - that is, remote communities' difficulties - or is that something different?---No, I don't think it's anything different.

And could we have D1012876?

(TO WITNESS): For your benefit, Mr Brennan, that's an entry on Thursday, 17 September 98 at the foot of the page, page 46. Again the female associate plus Q2, something to do with Boyup Brook?---Yes. That is Q2 and his associate re Boyup Brook and assistance required by police. He was going down that way. He wanted the assistance of local police to do some community-related activities, and again that was to do with indigenous people.

And next 2878, please.

(TO WITNESS): Mr Brennan, that's page 94, the foot of the page. This, I think, is an entry of a different nature? ---Yes.

MR PETTIT: You appear to have discussed Q2 with Mr Ayton. Is that correct?---No, no. No, the top dot point is: "Q2 issues - discuss with COP."

I see?---And then you'll see another dot point where I've - - -

WITNESS: - - - where I've spoken to Mr Ayton in relation to another matter.

MR PETTIT: What issues on the 9th of November did you discuss with the commissioner. Do you recall?---In general terms. I don't specifically recall word-for-word, but in general terms I would have told him that this person had been - - had been - - had allegations made against him and that they'd reached a certain stage. Specifically, I don't know what, but no, that was just an entry to say that I've kept the commissioner informed of the issues involving Q2.

Did the commissioner know of your association with Q2?---Yes.

Did he express any opinion about the matter?---Did he?

Yes?---No, he did not.

No direction to you about the matter?---No.

Next, could we have 2881? That's page 96. "Meeting Acting Superintendent Caporn re Macro briefing"?---Yes.

"Shoalwater briefing"?---Yes.

We know about those, and so on, and then over the page, 97, "Also briefed re Q2 inquiry and allegations"?---Yes.

Now, the date of that is significant, in that we've heard evidence that it is the date on which Mr Caporn called a meeting of the officers concerned and told them the results of his review. Were you aware that Mr Caporn was going to conduct his own review of the file?---Yes, I was.

Did you instruct him to do so?---No, I didn't, no. It was at his initiation, but I certainly supported that. I said that would be a sound practice.

And why is that a sound practice, on that occasion?---When he first advised me in relation to the matter involving Q2, my comments were to the effect that - - and that there was a serious allegation made against him, or allegations. I said, "All right, pursue it and make sure that you've got the evidence. If the evidence is there, charge him, but make sure you have it." And to that, he replied, "Well, I intend to do a review of it anyway", so I thought that was sound practice. because we'd been bitten previously in relation to matters, not to do with the Child Abuse Unit specifically, but other matters that had gained a certain amount of publicity over issues and the - - when it got to the Crown, they nolle prosequi the issue, so it caused some consternation and embarrassment and has done so, so because of this, the profile of this issue, I said, "Well, yeah, I agree. Review it."

MR PETTIT: I take it from the entry in the far right of page 97, that you advised the commissioner?---Yes. That is so.

Have you heard the opinions, or read of the opinions expressed in these proceedings concerning the appropriateness of interest taken by the upper levels of police management in matters simply on account of anticipated press?---Yes, I have heard that.

What's your view?---Well, my view is that if David Caporn, who I believe is a very astute and capable officer, saw fit to mention to me that this person was going to be interviewed and pursued in relation to allegations of - - well, of sexual abuse, then I certainly agreed with the fact that, as a - - an add-on to a Macro briefing and another briefing about some significant investigations that were occurring at that time, then he should - - it was quite right that he should mention this to me. It wasn't anything out of the ordinary, because with Macro and Shoalwater and some other serious investigations that were occurring about that time, I required David Caporn to brief me directly on any developments, of exactly what was going on, because there's a little bit of quality assurance comes there, too. It was a chance for him to reflect some of his thoughts and focus; and the general direction and objectives of what he was trying to do with these serious inquiries, past me. He is totally aware that I have an investigative background and that I was involved in some fairly major crimes over the - - over the time, and - - -

WITNESS: - - - over the time, and he used me as a sounding board, I would - - I would suggest, and - -

MR PETTIT: Yes. Well, that - -?--- - - that was quite proper.

Yes. What I was really after, though, is your view on a superintendent personally conducting a thorough review of an investigation?---No, that's - -

A ground level investigation?---Yeah. It's not hugely unusual. You know, I think the context here is - this particular one in relation to Q2 being a - - a person of some considerable profile - that he was going to make sure - as is his style - that things were adequately and thoroughly canvassed before any charges were preferred and I quite supported that.

Could we next look at 2979? That's page 121?---Yes.

2979? We'll have to struggle on without it. It reads:

"Q2. (...name suppressed...) re letter of support for his programme with Aboriginal youth. Done."

WITNESS: Yes.

MR PETTIT: Do I take it from that that you had been requested to write a letter of support?---Yes. My recollection is that he asked me to write a letter of support. I'm not sure to whom it was addressed, but possibly the (...name suppressed...) or the other group that he was seeking to become involved with, and that I - - the police service - and me, as the senior representative - was happy to support the sort of work that he was doing with Aboriginal youth. And the "Done" refers to the - - the request was from Q2 and then the "Done" is that I've done the letter. It's completed.

Was it a letter of support for Q2 personally or - -?---I think it was more in terms of the project or the programme with which he was involved, rather than him personally. I mean, Q2 stood alone in that sense, I thought. He - - he was - - he was a mentor and - - and somewhat of a leadership figure to these types of youth.

It didn't strike you as at least ironic, if not dangerous, to be writing a letter of support for a person on the 16th of December, who you knew was in the middle of allegations concerning child abuse and in particular to write such a letter in respect of his work with youth and community services?---No, it didn't - - didn't strike me as being dangerous or unusual at the time. I - - I dealt with he and his associate on face value and the work that they were doing, and I was satisfied that that programme was a genuine and meaningful programme that could work, and it was something that police could be involved in.

MR PETTIT: Can you see, at least with hindsight, that it might have been imprudent?---Oh, yes, I can see with hindsight, but isn't that a great benefit?

MR PETTIT: Can you see, at least with hindsight, that it might have been imprudent?---Oh, yes, I can see with hindsight, but isn't that a great benefit?

You can see at least how it's conduct on your part that might fuel disquiet about the process?---With the benefit of hindsight, I can see how that might fuel that sort of speculation.

I haven't yet canvassed - and I shall do so now - any other relationship between you and Q2. In the period we've been examining, middle of 1998 and towards its end, are there other instances where you and he met or had interaction?---Could quite well have been, yes, but in a business sense only, I would suggest.

Well, let me ask some specific details. Have you ever been to Q2's home?---No.

Has he been to yours?---No.

Do you know his wife?---Not well. I think I've met her once.

Does he know your wife?---Don't think so.

Have you ever had lunch with Q2?---No.

Have you ever had any meal with Q2, apart from the breakfast at Albany - - -

MR PETTIT: - - - apart from the breakfast at Albany?---No. No. Maybe - - maybe there was the - - the odd snack on a bike ride or something, but not that I can, you know, specifically refer to as having lunch with. There was no - - none of that social interaction in that sense.

Do the pair of you sit on any committees or boards?---No. Not together.

Play any sport together?---No.

Go to the (...suppressed...) together?---Never been to the (...suppressed...) with him.

Nothing else about your association with Q2 that we should know?---No. I think you've - - you've canvassed it fairly well. I mean, my association with him was pleasant and professional.

Going back to the issue I questioned you on a moment ago, whether it crossed your mind that it was at least imprudent to continue an association in the middle of an allegation against Q2, did you turn your mind to that issue?---No, I didn't turn my mind to that issue specifically. I was aware that there was an allegation made and that that allegation ought to run its course. If there was evidence to substantiate it then he should be charged, like everybody else should be charged, if evidence exists, but that matter was ongoing and from that point of view I did not and have not ever discussed the allegation with Q2. In fact, I would suggest to you that up until this matter broke he didn't know that I knew that he was being investigated. We haven't discussed it at any stage, even up to now.

What I want to put to you is that - - well, first of all, you were made aware that his interview on the 17th of November was interrupted - terminated?---I don't think I - - I was advised in those specific terms. I - - you know, as far as getting down to some of the material that I've heard this morning, that - - that didn't get to my level. That didn't bubble through to me. And it had no need to in that sense. I mean, was he to be charged then I would have been no doubt advised, or had he been charged. In other words, if it was - - if - - if his charging was about to happen, no doubt I would have been advised. Or - - or indeed, if it was - - if it had happened then, in retrospect, depending on the - - the timings and the availability of me and - - and the people doing the important inquiry, then that would probably be as a - - as an event that happened afterwards. But I didn't really get down to the day to day workings. In fact, some of the things that I've heard here today and read in previous transcripts about it are revelations to me.

MR PETTIT: I wonder if you would check your diary for the 17th of November and see if - - I don't have a copy of it here - - and see if there is an entry in respect of Q2. First of all, does it have a tag?---It doesn't have a tag, but I haven't tagged everything. I notice there's a few extra tags from what I - -

Yes; they're mine?--- - - I attempted to gather in.

They're mine, yes?---Okay. No, I can't see any - -

All right?--- - - any mention here of it at all.

But as at November, end of - - well, as at November you were aware that the investigation of Q2 was ongoing?---Oh, yes. I was aware of it, you know, as from that time in August that it was an ongoing issue; that they were looking to get as much evidence as they could. I knew that through being briefed at one stage or some stages by David Caporn that - - that corroboration was something that they were seeking, and they felt that it was important - - -

WITNESS: - - - it was important due to the nature of it but that was their business.

MR PETTIT: Now, you've mentioned before that you went on a social bike ride?---Yes.

And you've told us that Q2, what, turned up one day and asked - - ?---Rang up.

Rang up?---Rang up and said, you know, "I've got this guy who's - - who was an Australian champion cyclist", you know, and he said, "We'll go for a ride", and I said, "Well, I hope you don't tear off at a rate of knots and leave me in the dust" and he said, "Oh, no, no. We'll - - we'll wait for you." So I went out there at the pre-arranged time, right out the front of Police Headquarters, and there was his associate, his woman associate that he works with, colleague, and away we went and it was mainly he and the Australian champion cyclist moving along in front and the female colleague and myself bringing up the rear and chatting as we went, but we - -

We've heard evidence - well, we've seen evidence - that might suggest that bike ride was first planned for one day and postponed to another. Do you have any recollection of that? ---Not specifically, no.

At this stage did you have, do you recall, any sensitivity on your part about your ongoing association with Q2?---No. No, I didn't, because I - - I wasn't going to at any stage compromise any investigation. I wasn't going to let him know that I knew that he was under investigation or anything like that. I was keeping that very much to myself because, I mean, confidentiality in these sorts of things is important and - -

You could easily have fobbed him off on a social bike ride though, couldn't you?---Had he brought this matter up?

No. You wouldn't have given the plot away by simply declining to go on a social bike ride - - ?---Oh, you mean saying, "No, I don't want to go for a ride with you"?

Yes?---Yeah, I could've but I didn't. I mean, it's on record that I went for the ride and that's a fact and I'm quite - -

Well, if we could bring up 2880.

(TO WITNESS): You'll find that, Mr Brennan, on your page 130. It is singularly uninformative on the screen but - - ? ---Yes.

- -that, we have heard from Q2, is the day of the social bike ride?---Yes. Could be - could have been, quite conceivably.

MR PETTIT: You, on the other hand, have chosen to make the entry in these terms:

"Meet" - Q2 - "female associate, youth and community services."

WITNESS: "And community issues."

MR PETTIT: "Community issues"?---Mm.

That hardly reflects a social bike ride?---Well, you know, as they say, there's more that gets done on a quail shoot than just shooting quail and that's the case here. We spoke business most of the way - - -

WITNESS: - - - business most of the way - that is, his associate and myself.

MR PETTIT: This is a diary which records things as they happen, is it?---This is a day book.

Day book?---This is my personal day book and the way I choose to put entries in is the way I choose to put the entries in. That - - the fact that I went on a social bike ride is by-theby. I don't hide that. I mean, to all intents and purposes, the commissioner probably saw me going out the door in my gear, because I'm in an office exactly attached to his and there's a connecting door, so there's no attempt to cloud the issues. As I said to you earlier on, sometimes the entries as just two-liners, or as I - - they're not contemporaneous at times. Sometimes they're entries that are made some time later. Not days but, you know, hours.

Does it not show, as at 16 December, a growing sensitivity on your part and a disinclination to record the social nature of your contact with Q2?---The very fact that it's there at all, I would suggest, no.

We've also heard evidence that you've had a telephone conversation with Q2 as recently as 3 weeks ago?---Yes, I - - yes, I did. An unusual conversation, actually.

Tell us about it?---Well, it was my secretary rang through and said she had Q2 on the line, who wanted to speak to me, and this is probably a couple of days before this whole - - even maybe just one day before this matter became fairly high profile and public, and he - - he spoke about, you know, had I been riding very much and I said, "Oh, yeah, I've been riding every day. I'm training up for an event" and he sort of - - there was a bit of banter on his part about what amount of training I was doing and how much I was using my bike and then he said that he had been talking to a person who is a human movement specialist, and as I recall, he was doing some research on people of, let's say, fairly mature age; eg, my age, and Q2's age, and that he was interested in running the tape over me and just seeing how fit I was and how my body - - the pinch test and the rate of percentage of fat and all this nonsense, and I just said, "Oh, yeah, right", you know, and it was a nothing phone call and I very quickly terminated the call. I wouldn't have thought it'd gone for a minute. And that was that. At the time I thought, "Well, that's a strange sort of a phone call", but I did have a sensitivity at that stage to - - at that time, to developments.

Because you were aware of the possibility of it being aired in these proceedings?---Yes.

And you were aware of that because it was a matter referred to us by the police service?---Yes.

MR PETTIT: And you were party to the decision to include this matter on the list of matters the police service thought might entertain us - - might be entertained by us?---I don't think this matter came up for - - as one of the ones that we thought ought to be included, but there are several matters with which I've been involved that could have appeared on that list, and that I was totally happy to come to this Commission, if necessary, and discuss fully and frankly what I knew and what my involvement may have been.

MR PETTIT: It's certainly true, isn't it, that you could have distanced yourself much more from Q2 than you did?---Well, I would suggest that for you to say that, for me to distance myself, let me say to distance yourself from somebody you have to be close to them in the first place. I had no closeness to this person. He was simply a business associate, one of whom I knew that there was an inquiry progressing on. I wasn't going to telegraph any punches or in any way give him suspicion that I knew or - - or had involvement of any description with the matter.

There's another matter that I'm bound to ask you about, Mr Brennan. It's been suggested that you and Mr Looby attended the ACC in respect of this same matter; is that true?---Not at all. I don't know where that would have come from.

It's been suggested in these proceedings that you and Mr Looby did attend for the purpose of bringing pressure to bear on the ACC?---That would be a very dangerous move, and I would also hope that if any such contact was made that a suitable record was kept of that contact. I don't think I would have been party to that.

In 1999 the (...name suppressed...) applied for and was given a grant. Are you aware of that?---Not specifically, but there - - there are some - - some vague recollections of that, yes.

It was a considerable grant, I'm led to believe. Were you involved in any way in the acquisition of that grant, or in its recommendation?---I don't think so, unless that letter of support was somehow or other used. But I can't recall that I specifically was.

Just excuse me a moment. No further questions, thank you.

COMMISSIONER: Yes. Thank you. Mr Hammond, do you have any questions?

MR HAMMOND: No, sir.

NO CROSS-EXAMINATION BY MR HAMMOND

COMMISSIONER: Yes. Mr Power?

MR POWER: No, sir, I don't, thank you.

NO CROSS-EXAMINATION BY MR POWER

COMMISSIONER: Thank you very much?---Thank you, Commissioner.

You're excused from any further attendance under the summons?- --Thank you.

WITNESS WITHDREW


MR PETTIT: I call Tim Atherton.

COMMISSIONER: Could I have your full name, please?

MR ATHERTON: My full name is Timothy John Atherton.

COMMISSIONER: Do you have any conscientious objection to taking an oath on the Bible?

MR ATHERTON: None whatsoever.

COMMISSIONER: Thank you. You can take the Bible and read out the oath, please.

TIMOTHY JOHN ATHERTON sworn:

COMMISSIONER: Sit down, please?---Thank you.

EXAMINED BY MR PETTIT:

MR PETTIT: Your full name is Timothy John Atherton?---That's correct.

MR PETTIT: And you are an assistant commissioner in the WA Police Force?---Yes, I am.

Your area of responsibility is, I think, metropolitan region?- --It is now, since the 29th of July, yes.

Prior to that?---Prior to that, I was the Assistant Commissioner, Crime Investigations Support.

In 1998, you had the Child Abuse Unit within your portfolio?-- -Yes. I should explain that I took up a commission with the WA Police on the 25th of May 1998. I'd previously been a member of the Queensland Police Service. But, yes, I did have control of - - overall oversight of the Child Abuse Unit, which is within the Major Crime Division.

And do you recall when you were first made aware that there had been allegations made against Q2?---Yes, I do. Shortly after the 18th of August, Acting Superintendent Caporn advised me that there'd been a complaint made, and a person implicated, Q2, had some very loose association with Mr Brennan. I understand that Detective Superintendent Caporn also advised Mr Brennan.

If I can just digress for a moment, what are the arrangements for approval for interstate travel within the Police Force? Is that something that would come to the office of an assistant commissioner?---Yes. The arrangements in Western Australia are a little bit different to those that exist in Queensland. An application for travel would come to me, and I would recommend it. The State Commander would have the final word, and it would then go to the minister's office and the minister approves all interstate travel in relation to police officers.

Is it possible that there were some memos in September dealing with a request for interstate travel, and concerning the investigation of Q2?---September 98?

Yes?---It's possible, yes.

Being a Queenslander, were you independently aware of the status, in this State, of Q2?---No, not at all.

You had to have that explained as well?---I had had that explained to me, yes - -

WITNESS: - - - explained to me, yes.

MR PETTIT: When you took up your responsibilities in Western Australia did there emerge in the next few months some concerns about the operations of the Child Abuse Unit?---As a matter of fact, the weekend that I arrived in WA, which was the weekend prior to taking up duty on the Monday the 25th, there had been some media coverage regarding a report by a member of the Child Abuse Unit which was a response to a number of recommendations arising out of the Wood Royal Commission in New South Wales. The general gist of the media campaign was that several - - quite a number of recommendations had been made about improving the operations of the Child Abuse Unit, and that report had been lying dormant for some time. And that - - in the - - that my first week was consumed with media interviews; it created a great deal of interest in Western Australia and became quite a political matter later in that week. So that was my welcome to Western Australia, if you like; handling that matter in the first week.

And what did you do about that?---I called in the officer who actually originated the report - a young detective named Peter Branchi - in association with detective or - - and then acting superintendent, Detective Caporn. I got a copy of the report, which was quite an extensive report. I spoke to him about it and, on the instructions of Commissioner Falconer, who was quite concerned about the delay in actioning the recommendations, we set about a process of implementing those recommendations over a period of time.

At that stage there had already been a review completed; is that what you're telling us?---Yes. Yes. I understand the review was conducted in the previous year, 1997, as I say, in response to the recommendations arising out of the Royal Commission in New South Wales.

Yes. Is that a review conducted by three individuals? I think Budge, Prins and Sullivan. Is that the one you're talking about?---No. I'm talking about a report that - - the author, I understood, was a Detective Peter Branchi, who was a member of the Child Abuse Unit. I am - - I am - - I have some knowledge of a review that was done by that group of officers, but the actual report that I was interested in at the time was the recommendations of the - - what I call the Branchi report.

Just so that I can be clear about this, can the witness be shown D1012182? (TO WITNESS): This is rather a long report - 24 pages - but it's undated. It's headed - - the review was instigated by Acting Detective Inspector Brandham. Approved for action by Acting Detective Superintendent Caporn. That's its front page. Are you familiar with that report?---No. I can't - - I - - I have some vague recollection of the review but I can't recall that report.

MR PETTIT: In any event, that's not the one you're telling us about?---That's not the one that I was referring to, no.

Could we have a look at D1012228?

(TO WITNESS): That's the document you - - ?---That's the one I'm referring to, yes.

That's a 58-page document, so we won't take you through it?--- It's quite comprehensive. There's quite a number of recommendations.

Thank you. Now, after you were informed of the file concerning Q2, you were aware at that stage that Mr Caporn was briefing the deputy commissioner on the matter?---On occasions, yes, I was.

And did you attend any of those briefings?---Not from my recollection, no. But David Caporn was keeping me briefed at the same time about the progress of the investigation, so it wasn't the case of going directly to Mr Brennan. He would brief me concurrently, and that - - that's a practice that's continued in relation to a number of fairly high-level investigations - - -

WITNESS: - - - high-level investigations.

MR PETTIT: You've been in the West Australian Police Force for only 4 years or so?---Just over 4 years, yes.

And prior to that, you had how many years in Queensland?---27 years.

And on leaving Queensland, you had attained what rank?--- Superintendent.

From your experience, here and in Queensland, what can you tell the Commission about the interest taken by police management, where there is an accusation against a public figure?---Well, obviously there is - - there are issues in relation to high-profile figures. I mean, they get treated the same way in terms of deciding whether or not there is sufficient evidence, certainly, but in terms of negative implications for, I suppose, the image of the service, senior management obviously are always concerned that, if charges are going to be preferred against a person who we will call, for want of a better word, high profile, that all the i's are dotted and the t's are crossed. I think that's just human nature, rather than a procedural thing. I mean, I think if we are going to go out and charge, say, a member of Parliament for a fairly serious offence, there would be a fair degree of scrutiny and interest in the matter from senior officers.

#

Was that the case in Queensland?---Well, I can't say that I've been involved in any matters in Queensland of this nature, so I wouldn't like to comment on that.

Is the Q2 matter in Western Australia unique in this regard, in your experience?---No, no. I would - - I would say that the investigation into the Claremont murders, the same degree of scrutiny in relation to the evidence has been applied in that matter, too. Regardless of the profile of the person of interest.

Mm?---Because of the huge amount of community and media interest in the case.

Well, am I being too cynical in suggesting that the scrutiny by upper management is designed entirely to protect the police force in the media?---I, in the years since this matter came to my notice, have seen no suggestion than that's - - than otherwise that is the case, yes. That it's merely concern that there is no embarrassment to the service by this Q2 being prematurely arrested and charged with what amounts to very serious charges.

You've already told us that Mr Caporn was being briefed and in turn briefed you and the deputy commissioner?---Yes.

MR PETTIT: Were you given advance notice by Mr Caporn that he intended to personally review the file?---No. My recollection was that Superintendent Dave Caporn came to me after he'd reviewed the file and advised me that he had undertaken the review, and that was in November 98, early November 98, and if I paraphrase what he said to me, he said, "I'm glad I did, because they would have rushed out and arrested him and I don't think there's sufficient evidence there at this stage." And can I say that that level of scrutiny by Detective Superintendent Caporn is not unusual. I've seen that same level of scrutiny in most of the - - this - - the major investigations that he's overseen in the time that he's been under my control.

Are you saying that it's not unusual for Mr Caporn, or it's not unusual for superintendents generally?---I'm saying that Superintendent Caporn is a very diligent and hands-on superintendent. He takes great pride in his work - - -

WITNESS: - - - in his work and would not let, you know, a major investigation going wrong - - he would not let that - - would not want that to impact on his image as an investigator and therefore he takes a great interest in matters under his investigation; hands-on, if you like. He's very hands-on. It's not in terms of interfering. It's simply oversight. He's a very thorough investigator. In fact, I'd go so far as to say - and I preface this by saying that I worked for most of my career in the Police Service in Queensland either with or for detectives - he's unreservedly the most thorough and competent detective I've ever worked with in my police service, and that's 30 years this year.

MR PETTIT: The matter reached your desk, I think, in early December following a letter from the person we're referring to as Q1?---Yes.

I think it was referred to you by the then Commissioner?---Mr Falconer. That's correct.

Mr Falconer?---Yes.

And it was in the nature of a complaint from Q1?---It was.

Did the Commissioner of Police speak directly to you about that matter?---He did.

And asked you to do what?---He asked me to - - to review the case and brief him as to whether there were any consistencies (...on tape...) or matters for concern.

That letter mentioned Mr Brennan's name?---Yes.

Was Mr Brennan advised about the letter?---Not by me.

Did you have any discussions with Mr Brennan about the letter?---No, but my understanding at the time was that Mr Brennan was aware that there was scuttlebutt in the unit that he was allegedly a friend of Q2's. He was aware of that matter.

Did you speak to him about that?---He spoke to me in - - not so long after Superintendent Caporn advised him, as a result of the - - in August, and reassured me that Q2, while he had some association, very informal association, with Q2 through his bicycle riding activities, that he was not a personal friend of Q2's, nor was he related, and that the investigation should take its course. In fact, I remember him saying to me "If there's evidence there, he should be charged."

MR PETTIT: In any event, after speaking to the Commissioner of Police, I think you immediately involved Mr Caporn?---Yes, I did.

With a view to speaking to Q1?---Yes. I firstly spoke to Detective Superintendent Caporn and got quite a comprehensive briefing from him of where the investigation was at and we made arrangements for Q1 to come in, because at that stage we'd received some advice from the DPP that on the evidence at that stage of the investigation there was no - - there was insufficient evidence to press charges against Q2.

We've heard it suggested in evidence that there seemed, from Q1's point of view, to be an inexplicable urgency in her attendance at your office. Was there, to your mind, some urgency?---Well, yes, there was in one regard. I mean, I'd been asked by the Commissioner personally to have a look at the matters that she'd raised in the letter and she had raised some suggestions that there was improper conduct. My brief was to very quickly ascertain from her whether - - what the nature of those concerns were and, if necessary, recommend that further investigation be made.

You and Mr Caporn met her and her husband on the 8th of December?---On the 8th of December, yes.

Tell us generally about that meeting?---She and her husband came in. We then - - basically, Detective Superintendent Caporn gave her and her husband the same briefing that he'd given me a few days before about the whole process of the investigation, and then we explained the advice that had been given to us by the DPP - - -

WITNESS: - - - by the DPP that insufficient evidence at that stage was there to press charges. As a result of that she was still expressing some concerns, personal concerns, that there may have been some improper interference in the investigation. I made an offer to her for her to go away and consider the matter for as long as she liked and if she still had - - if she was still not satisfied with the advice that we gave her, albeit indirectly from the DPP, that there wasn't sufficient evidence to charge, that I would arrange the DPP counsel personally to come down and speak to her and her husband, and I also reassured her that if she was still unhappy, or still in her own mind unhappy, that there had been some improper conduct, that the matter would be passed on for investigation.

MR PETTIT: Was Mr Brennan mentioned by name in that discussion?---Yes, he was.

Do you remember what was said about him by Q1?---Well, she - - she told me that she had been told, it wasn't direct evidence, it was - - she had been told that (...name suppressed...) - sorry, Q2 - was a good friend of Mr Brennan's and had prior knowledge of the arrival of the investigators and it was her allegation that the alleged association between Q2 and Mr Brennan affected the outcome of the investigation.

Was she given any assurance on that score by you or Mr Caporn? ---No. I didn't see it was my place to give her any reassurance. I mean, I don't have any personal knowledge of the relationship between Mr Brennan and Q2. I simply - - my role there was that if she still felt that there was a matter to be investigated in relation to alleged improper conduct that my duty as a senior officer was to pass that on to an investigating body.

Did Mr Caporn attempt to persuade her that there was nothing in that allegation?---Not in my presence, no. In fact, I recall Mr Caporn being quite supportive of the matter being further investigated if she was still not satisfied.

If she were dissatisfied because she suspected that Mr Brennan had been involved improperly in the investigation and if nothing was said in that regard by you or Mr Caporn to assure her that there was no interference why did you not instigate an investigation immediately? In other words, what is there for her to think about?---Well, the main thing I wanted her to think about was whether she was accepting of the advice regarding the DPP's opinion about the outcome of the investigation. I was quite happy to refer the file to Internal Affairs - professional standards, Internal Affairs at that stage - but I also wanted to be satisfied that she was happy about that outcome because, as I say, I had made an offer to her that I would get the DPP to send someone down personally to explain their decision to her.

MR PETTIT: Yes, but that's all shutting the gate after the horse has bolted, isn't it? I mean, the concern she expressed to you was that the evidence which was to go to the DPP was deficient precisely because there had been interference in the investigation resulting in Q2 being tipped off, resulting in him being prepared for the interview and ultimately declining to be interviewed?---That's probably the case but, as I say, I mean, at that meeting she was still of a mind that there had been some improper interference. It was always my intention to refer the matter but I gave her that cooling off period first prior to then referring it to the Professional Standards portfolio. I mean, that was a judgement call of mine and I have to take responsibility for it.

No inquiries were made by you or at your direction into whether there was any substance to the allegation that Mr Brennan may have interfered?---Well, I don't think I have a responsibility to do that. My responsibility if I become aware of any allegations of police misconduct is to direct those to the Professional Standards portfolio and then they make the call as to whether it's going to be investigated internally or referred to another agency.

And you didn't do that on the 8th?---I didn't do that on the 8th, no.

And you waited to see whether Q1 would change her mind? ---Yes. Well, I asked her to get back to me within a week but in actual fact she didn't. She took some time to - - -

WITNESS: - - - took some time to return, and in fact, she actually ended up writing a letter back rather than contacting me directly, which was the invitation that was given to her.

MR PETTIT: During that meeting, did Q1 say anything to implicate Mr Caporn?---No.

Did she mention any events in which Mr Caporn would have been involved?---Not that I recall, no.

So, her concern was restricted to the possibility that Mr Brennan had intervened?---Her concern was restricted to matters that she'd been told, in her own words, by the investigating detectives regarding the relationship between Q2 and Mr Brennan, and the fact that Q2 appeared, in her - - and this is the advice that she'd been given, appeared to have had some prior knowledge that he was to be interviewed.

Did you get any indication from Q1's demeanour at the end of the meeting that she was angry?---No, I wouldn't describe it as anger. She - - she was a very traumatised woman. She was probably confused and in her own mind still unhappy that - - well, not unhappy; she was still confused about what had happened and she - - she couldn't - - I don't think she could comprehend that no complaint could be made, and in her own mind, something like that be compromised by what had been told to her as being an association. So, she was uneasy about the alleged association more than the outcome regarding the evidence, the advice of the evidence, but as I say, my call was, give her a week to think about those issues. If she was still unhappy about either or both, then I would take some action at the end of that week.

Do you accept the criticism that, in respect of her suspicions regarding Mr Brennan's interference, she was given nothing further to think on by you or Mr Caporn?---I don't know what you mean by that.

Well, really the effect of sending her away for a week was to see whether she would simply lose interest in that allegation?---No. No, I had no doubt that she was not going to lose interest. I was - - personally, I had no doubt that she would come back, and wanting to continue to press her complaint that she outlined in her letter to Mr Falconer of 1 December. The only - -

Well then, why send her away?---Well, because as I say, it was my judgment call that I gave her the week to decide about the evidence, lack of evidence matter, prior to forwarding the whole file to Professional Standards.

Yes, it seems to be, to me at least - correct me if I'm wrong - two very discrete matters here. One is whether there was enough evidence to pursue a prosecution of Q2; quite independently of that, there was another issue, whether or not the investigation had been interfered with?---Mm.

MR PETTIT: I can understand, and I would leave to one side the first issue and pursue the second. On that score, your evidence is that you gave Q1 no information, no assurance, simply asked her to think about it?---Well, I couldn't give her any reassurance because the matter, at that stage, hadn't been investigated. The matter was the subject of rumour and innuendo within the Child Abuse Unit, something which had been drawn to my attention. The matter had not yet been investigated, so I mean, I don't see how I could give her any reassurance about the matter. And what would I say? I don't know the relationship between Mr Brennan and Q2. I'd received some assurances about that by Mr Brennan. I had no knowledge of the actual - - what had transpired in relation to the interview with Q2, when the investigators went to speak to him. She - - she alleged in her letter that he had been aware, or allegedly been aware, of their impending arrival, but I had no independent knowledge of that, so I don't see how I could have given her any reassurance, but - -

No, I understand that - -?--- - - I certainly - - I was prepared, if she was still unhappy at that stage, which she clearly was, to refer the matter for further investigation.

Yes. Perhaps I'm wrong in my premise. Perhaps it's not the case that the two matters were completely separate. Would you agree with this; that - - -

MR PETTIT: - - - you agree with this; that should she have explained to her clearly the nature of the investigation and exactly what went on and what was done and what wasn't done and why, she would have faith that there was no interference whatsoever by anybody?---That's - - that's probably quite a fair assumption because, as I say, the briefing that we gave her and her husband was very comprehensive in terms of who was interviewed and what evidence was gathered, so, I mean, I would have hoped that that may have given her some reassurance, but my own assessment of her demeanour at the time was that regardless of the thoroughness of the investigation, she was convinced in her own mind that the outcome had been compromised by - - you know, by the alleged association, and she would press the matter.

All right. But now I have to return to my original point. On that assumption, it rather overlooks the gravamen of her complaint; namely, that the reason there was insufficient evidence was because the process, in her mind, had been corrupted. Do you see the point?---I see that point, and I accept it. And, as I say, I take responsibility for giving her what I was hoping would only be a week to think about the - - the lack of evidence matter before referring it for further investigation. Now, that might have been a bad call on my part, but I can assure you that there was no malice aforethought in regard to that. That was simply a call on my part. It was a major investigation, there was a huge file on it; the matter would - - would be referred through if she was not satisfied with the outcome to DPP or to Internal Investigations in relation to her suspicion. There was never - - never any suggestion that wouldn't happen. Simply I gave