Chief amongst those powers was the control over access to grog.

Brough told the House of Representatives that:

“The authors of the Little Children are Sacred report described alcohol abuse as the ‘gravest and fastest growing threat to the safety of Aboriginal children‘.

…

To dry up the lethal rivers of grog, this bill will enable the government to introduce a general ban on people having, selling, transporting and drinking alcohol in prescribed areas. At the same time, our measures apply tougher penalties on people who are benefiting from supplying or selling grog to these communities.”

The primary anti-grog measure introduced by Brough was contained in section 12 of the NTNER Act – which replaced the previous regime in section 75 of the NT’s Liquor Act of offenses and penalties relating to “restricted areas” with a regime relating to “prescribed areas“.

Brough’s “prescribed areas” expanded the area subject to the alcohol bans by several orders of magnitude to include all Aboriginal freehold land in the NT – about 42% of the Territory landmass.

And, as I explained in Crikey back in 2007 in relation to another contentious part of the NTNER legislation, the Devil would always be in the detail.

And Vince Kelly, now President of the Police Federation of Australia and in 2007, as he remains, also President of the NT Police Association, told the SBS program Living Black just prior to the introduction of Brough’s “tough on grog-runners” legislation:

VO: But only days away from the ban coming into effect, Northern Territory Police may not be ready to tackle this latest Government plan.

VINCE KELLY: I do envisage difficulties with prosecutions because of the way legislation is drafted. There has been limited training or no training provided to the NT Police on the practical implications of the legislative changes that are coming about because of federal legislation. So all these difficulties will flow through, ultimately, to prosecution.

In March this year the NT News reported that one particularly useless part of the NTNER legislation would be scrapped:

Under a rule introduced by the previous federal government, anyone who spends more than $100 on takeaway alcohol must have their ID recorded and say where they plan to drink it. NT Licensing Minister Kon Vatskalis yesterday said the law was “a waste of time, a waste of paper and a waste of ink”. He said he had discussed it with Federal Indigenous Affairs Minister Jenny Macklin and he expected the laws to be removed “soon”. “The Minister agreed with me that it was not the brightest idea of the intervention,” he said. The scheme was said to be an attempt to stop grog-runners but it doesn’t stop anyone buying booze – or taking it to alcohol-free communities.

Almost two years after the introduction of the NTNER scheme current Indigenous Affairs Minister Jenny Macklin was asked about the effectiveness of the NTNER legislation in stopping the “rivers of grog”.

As Macklin told journalists at a press conference in Melbourne on the 5th of August 2009:

“…certainly all the evidence shows that that particular measure has not been effective. That said, I just want to reiterate how critical it is that we have strong alcohol controls on the supply of alcohol…one of the things that we have to do to control and reduce that violence is to see stronger alcohol controls.”

And, as the Fairfax Press reported last Friday, the rivers of grog are apparently flowing faster and wider than before:

“In the communities targeted by the intervention…there was a 34 per cent increase in alcohol-related crime, the report, titled Closing the Gap in the Northern Territory, said.

The last spike could be due to the criminalisation of alcohol possession in some remote communities. The Minister for Indigenous Affairs, Jenny Macklin, attributes the increases to higher police numbers.”

“An increased police presence in remote Northern Territory communities, particularly in places that previously had limited or no police, has resulted in more reporting in a number of offences, including violence, alcohol and child abuse,” a spokeswoman said.

For some time The Northern Myth has been aware that several NT Magistrates have been less than pleased that their sentencing options with regard to grog-running – particularly for serious and repeat offenders – have been seriously compromised by the supposedly tougher regime instituted by Brough and maintained by Macklin.

The Northern Myth also understands that many police – particularly those in remote areas that have to deal with grog-runners face-to-face on a daily basis – are particularly pissed off at this situation – they know that if they get a repeat offender “bang to rights” that they will only face a fine at most when the matter is dealt with by the Courts..

Before September 2007 a prison sentence was available as a sentencing option for a Magistrate dealing with a person convicted of a basic “restricted area” offence under the Liquor Act – an option increasingly attractive in respect of repeat or particularly serious offenders.

Since then, under the “prescribed area” provisions of the NTNER-modified Liquor Act, the maximum penalty available is a fine.

A prison sentence can now only be imposed for an aggravated version of the basic offence that relates to “transporting” more than 1,350 millilitres of pure alcohol with the intention to supply.

The pre-existing regime under the NT Liquor Act, at section 124A, always allowed (and still does) for Police officers to state or “aver” that seized grog was alcohol.

But there is no equivalent averment provision in the NTNER Act in respect of the 1,350 millilitres of pure alcohol situation.

The consequence of this is that if Police seize enough grog to trigger an aggravated offence and charge accordingly they will have to chemically analyse each item if the defendant opts to go to hearing.

The Northern Myth understands that the NT Police Forensic Lab in Darwin is not geared up to conduct such testing, and would have to send the seized alcohol interstate for testing.

The practical result of this snafu is that the vast majority of charges – including those that would clearly be classed as aggravated “grog-running” offences – are now processed by the Courts as basic “prescribed area” offences, and the only sentencing option is a fine.

Three weeks ago Marie Nudjulu stood before Court at the troubled community of Wadeye charged with a number of “prescribed area” offences.

The Northern Myth has seen the Court Transcript of Proceedings against Ms Nudjulu.

The Prosecutor read the following facts – admitted by Ms Nudjulu’s Defence counsel – into the public record:

Your Honour, the facts are that approximately 5:55 am on Thursday, 10 September 2009, Marie Nudjulu, the defendant, was the rear passenger in a green Holden Vectra sedan, registration: 536 888, driving to Wadeye from Darwin.

The defendant was travelling with Sebastian Cumpuda(?) and Terrence Parmbuck both rear passengers and Matthew Cumpuda driving. At that the defendant’s vehicle was stopped by police in the vicinity of Woodyculdiya Outstation turn off from Port Keats Road. The search of the vehicle apprehended nine bottles of spirits and 29 unopened 375 ml of cans of Victoria Beer on the floor at the defendant’s feet.

When asked who owned the unopened 29 cans of 375 ml of beer the defendant replied, ‘The VB is mine, I bought it for myself’, the two unopened 700 ml bottles of Bundaberg rum were located at the feet of the defendant were claimed by the co-offender Terrence Parmbuck. The remaining bottle of spirits was claimed by the co-defendant Sebastian Cumpuda.

The vehicle was seized and conveyed to Daly River Police Station. Both the defendant and co-offender, Parmbuck, were conveyed to the residence of Wadeye in a marked police vehicle. The defendant was advised she will receive a summons in relation to the matter.

At the time of the offences the whole of the Daly River land trust area is a prescribed area under the Liquor Act as amended by the Northern Territory National Emergency Response Act. The defendant was not the holder of a liquor permit in order to provide a lawful excuse for the liquor in question.

According to the transcript Ms Nudjulu had previous convictions for possession of alcohol contrary to the Liquor Act – and was currently subject to a suspended sentence. This meant that, in ordinary circumstances under the previous regime, she would be a prime candidate for a custodial sentence.

But, as Stipendiary Magistrate Melanie Little told the Court:

“Her Honour: Well she…I mean this just demonstrates how this legislation is not completely – look at this lady’s record, it’s inevitable she would have gone to gaol for this offence, absolutely inevitable, $2200 maximum penalty now. I wonder – I don’t understand Canberra, it just totally bewilders me.

…

Her Honour: Look at the record, look at it. How many, look, one, two – this is now her fourth bring liquor and she was on a suspended sentence. I wonder – it just – it seems to have accelerated and the message is out, isn’t it, there’s absolutely no deterrence anymore.”

And in sentencing Ms Nudjulu, Magistrate Little made her views on the practical effects of the NTER Act modifications to the NT Liquor Act clear as possible:

Her Honour: Ms Nudjulu, on 10 September you were in a car at 6 o’clock and the police stopped the car and there was other people there and quite a lot of alcohol was found. You said that 29 of those cans were beer, 29 375 ml cans of beer were yours, and you pleaded to guilty to bringing liquor into the community. The liquor and the vehicle was seized. You had no permit to have alcohol here. You said you bought it for yourself and you were in the – what’s called a prescribed area.

We used to call them restricted areas and the penalties were very significant, Ms Nudjulu, and as I mentioned had they been – under the old penalties and old regime you would be looking at a period of imprisonment today. The maximum penalty today is $2200 and I take that into account.

I take into account that you were told to keep out of trouble. This offence is not punishable by imprisonment so it’s not a breaching offence. I take into account that this now the fourth bring liquor, plus you’ve got other offences on your record. So it’s clear to me that you’re not taking any notice whatsoever of the rules, Ms Nudjulu.

I accept you have been trouble for some time since I put you on that suspended sentence, and I take that into account. You pleaded guilty the very first time in court so I take that into account as well. It’s not a small amount of alcohol, having said that it’s certainly not at the – completely at the upper end, but I take that maximum penalty to – to mean that – well I know that it covers all offences, control liquor, possess liquor, bring liquor, and I regard bringing liquor is at the upper end of the types of offences that are covered by the maximum penalty.

You’re convicted and fined $400, $40 levy, 28 days to pay. You’ll get a piece of paper explaining how to pay that money and – and how to get more to pay if you need that extra time. (emphasis added)

Canberra – weak as piss on grog and grog runners in the NT.

Perhaps McDermott could have looked at the NT, where more traditional policing methods – like the use of the “three point hold” also known as “‘ground stabilisation’ or ‘take-down’ – has been implicated in a number of recent deaths.

Yesterday ABC Darwin reported that NT Police officer Acting Sergeant Bradley Fox had been charged with aggravated assault in relation to an incident at the Royal Darwin Hospital in December 2007 that ended with the death of the well-regarded film-maker Bob Plasto.

Bob Plasto

The ABC’s Obituary to Bob Plasto records that:

After leaving the ABC in 1980, Bob founded his own film production company and went on to become an internationally renowned film-maker, making more than 75 films in 35 years. His work included films about Islamic fundamentalism, Pine Gap, the Coniston killings and Aboriginal land rights. Bob was the first independent film producer to enter post-revolution Iran. His exclusive story from this visit, In the Name of God won the United States’ highest award for an independent documentary, the Alfred I Dupont Award in 1986. Iran – Behind the Veil won Best Documentary at the New York Film Festival, the film lauded for capturing a myriad of telling scenes, despite the tight Government control which followed the crew at every turn…Bob was also a poet who wrote more than 500 poems. He retired from film-making in August.

His funeral was held at Darwin’s Uniting Church on December 31. He is survived by three daughters, Jacqueline, Georgina and Rune Al-ith and one son, Tyge.

NT Coroner Greg Cavanagh recently conducted a joint inquiry into two deaths – including Plasto’s – because:

The circumstances of the deaths were investigated at the one inquest because of common factors and an overlap of issues. Both deaths were at least contributed to by injuries sustained after the police used force involving restraining the men in a prone position. Both men were large men who suffered from pre-existing heart conditions. An issue arises in both cases as to whether the deaths were caused by ‘positional asphyxia’,

According to his report into Plasto’s death NT Coroner Greg Cavanagh, on 22 December 2007, NT Police attended at Knuckey Street in central Darwin, where they found Plasto, who was:

“…shaking and sweating and speaking incoherently [and that they] believed…needed urgent medical assistance due to his mental state.”

Plasto was taken to the Royal Darwin Hospital emergency department, where he was examined by a doctor shortly after 4pm, who, according to the Coroner, reported that:

“…he was “pleasant and cooperative.” He was sweaty. She recorded “no insight into current state but does say he will do whatever I think he needs to get better.”

Plasto was then “sectioned” by a Dr Cromarty. At that point, responsibility for, and custody of, Plasto transferred from the NT Police to the Royal Darwin Hospital as an involuntary patient.

Dr Cromarty told Nurse Rebecca Weir that the Deceased was “acutely psychotic and he needed psych reg [psychiatric registrar] assessment”. Dr Cromarty said she spoke to a police officer (Fox) shortly after 4.30pm and told him that she had sectioned the Deceased. She also told him that she was concerned that the Deceased was psychotic.

Plasto remained at the emergency department – as did several NT Police officers including Acting Sergeant Bradley Fox – waiting for the psychiatric registrar to assess him.

During that time:

“The Deceased often talked to himself. The people who heard him speak could not make sense of what the Deceased was saying. He was highly agitated. He was standing up, sitting down and walking in and out of the Oleander room.”

…

“The Deceased, who was a chain smoker, repeatedly asked…for a smoke…The longer the Deceased was waiting at the hospital, the more agitated he became.”

Shortly before 6pm Plasto moved towards the external doors of the emergency ward, repeatedly stating that he wanted to have a smoke and “I want to go and get some air”, “I want to have fresh air.”, “I want to go outside. I want to go outside.”

Some Police officers tried to convince Plasto to stay inside, Acting Sergeant Bradley Fox was more abrupt, telling him to “Get back in the room”, “You’re not free to go just yet. You’re going to have to wait a little bit longer”.

The situation then escalated rapidly with Acting Sergeant Bradley Fox effecting what is known in police parlance as a “takedown”.

“Very shortly, six or seven men including all four police officers became involved in the restraint of the Deceased. Whilst on the ground, Fox and ACPO Eric Morrison applied significant weight to the Deceased’s upper torso. At one point, Fox was using his pectoral area to lie forward on the Deceased’s left shoulder. At some stage, Fox’s right knee was also used to push down the Deceased’s left scapula trying to effect a ‘3 point hold’. The Deceased was resisting and pushing up with his right hand. Acting Sergeant Fox says that he was using all his physical strength and weight. He described the intensity of the struggle as a ten out of ten. He said it was possibly the hardest apprehension in that manner he had ever undertaken. ACPO Morrison was putting his left knee on the Deceased’s right pectoral. Fox also held the Deceased’s head down with his left knee.”

Dr Cromarty attended the scene:

She saw the Deceased restrained face down on the floor with several police members lying across him and others restraining his arms and legs…Dr Cromarty says that as she tried to approach the Deceased, Fox put his knee on the Deceased’s head, and she heard the head smack onto the floor. She and Dr Lai Heng Foong leant down and clustered around the Deceased’s head and told the Deceased to relax, and that she would try to get the police off him. Dr Cromarty was concerned as the Deceased appeared to struggle less and his face was becoming quite red.

Dr Lai Heng Foong, the lead registrar in charge of the emergency ward:

“…heard screaming from the flight deck and came running to the ambulance bay. Dr Foong shouted at the police in a very loud voice to back off a bit and “ease off the pressure”, “let us talk to him”. She remembers very clearly seeing Fox place what appeared to be his whole weight on the Deceased’s head so his face was completely crushed into the floor. Dr Foong saw the Deceased trying to move his body and lift his head, she believed, in order to breathe and talk. She observed that Fox’s knee was on top of his head whilst the Deceased was turning red and later blue.”

“And do you remember now seeing blood come from the Deceased’s nose while he was on the ground?—I’ll never forget it, yes, I do. And why will you never forget it?—Because this is a patient that was scheduled and supposed to be protected by the hospital and he was being restrained with excessive force, compromising his ability to breathe and, despite my pleas, there was no easing of the pressure put on his face.”

Dr Clarissa Oh said that she saw Fox apply a knee to the Deceased’s head when it was about 15 cm above the ground. Dr Oh saw that when Fox put his knee on the Deceased’s head, it hit the ground, and she heard a significant thud.

…

“Dr Cromarty, Dr Foong and Dr Oh all saw the Deceased begin to turn blue, and that shortly after that he stopped struggling. Dr Cromarty and Dr Foong shouted at the police that he was turning blue and that they had to get off him. Dr Foong said nothing happened and she again had to say: “Guys let go of him. He’s getting blue”.

Therese De Groot said she saw a police officer (Fox) with his knee on the Deceased’s head and heard a thump at least once. Nurse Natasha Roberts heard the Deceased say quite loudly words to the effect of: “Can I get up? Sorry, let me get up”.

Plasto was transferred into the Intensive Care Unit but never recovered consciousness and died 6 days later.

NT Coroner Greg Cavanagh was scathing of the conduct of the NT Police officers:

“In my view the conduct of the police in this matter involved a litany of serious errors and misjudgements that led to the tragic and unnecessary death of the Deceased.

The Police Custody Manual and the Police General Order relating to Transport of Persons in Custody require a police officer apprehending a person apparently suffering from a mental illness to notify a hospital Emergency Department that they are attending with the person. This was not done.

More seriously, the Deceased was not taken directly to Royal Darwin hospital. Instead, he was taken to the police station where he was kept in the back of a caged vehicle for 16 minutes. That conduct is unacceptable. The Deceased was not a prisoner. He was not a suspect. He was not, as Fox described the Deceased during his interviews to investigating police a “person of interest”. He was a person who was a potential patient. The only power the police had under section 163 was to apprehend him and take him to a medical practitioner or an authorised psychiatrist for the purposes of an assessment under s 33.

…

In my view the decision to use force against the Deceased was not necessary and the police did not apply the minimum use of force.

I accept that the Deceased said on more than one occasion in a loud voice that he wanted to go outside to get some fresh air or he wanted to have a smoke…All four police officers were in close proximity to the Deceased at that time he said those words. I do not accept that not a single police officer heard the Deceased say those words or words to that effect. It is telling that none of the police asked the Deceased why he wanted to go outside. That is either because the Deceased had told them why he wanted to go outside or it did not occur to the police to engage in any dialogue with him.

There is no cogent evidence that the Deceased was intending to flee or escape or attempt to hurt himself.

…

I also find that if force was required to be used against the Deceased, the force actually used on the Deceased was unnecessary and excessive…I accept the evidence of the civilian witnesses that Fox applied his knee to the Deceased’s head when it was lifted about 15 cm above the ground causing the Deceased’s head to hit the floor. Fox’s conduct was not in accordance with the training provided by the NT police.

…

In making the decision to use force, the police members failed to take into account that the Deceased was mentally ill, that he was in a distressed condition and was in an agitated and anxious state after an unnecessarily prolonged wait at the hospital.”

Coroner Cavanagh also blasted the training provided to NT Police in dealing with the mentally ill:

“The training received by operational police about dealing with the mentally ill was clearly inadequate. Sergeant Hansen…acknowledged that the NT police were not given any specific training on negotiation or ‘tactical disengagement’ or communications with mentally ill people.

Bronwyn Hendry, the Director of Mental Health in the NT, gave evidence of the training received by NT police and security guards in relation to mentally ill people. She regarded that training as inadequate.”

Acting Sergeant Brad Fox remains on duty.

He has been summonsed to appear in the Darwin Magistrates Court on 9 November.

Coroner Cavanagh made the following recommendations:

1 – The NT Police Custody Manual be amended to provide that members must take any apparently mentally ill or disturbed person apprehended under s 163 of the Mental Health and Related Services Act by the most direct practical route and as quickly as possible for the an assessment.

2 – The NT Police Custody Manual, the Police General Orders and the Memorandum of Understanding dated June 2002 offer no clear guidance to operational police in relation to the handover of patients by police to hospital and should be revised.

3 – That Northern Territory Police ensure operational police are trained and retrained using reality based training techniques in relation to: “to the use of the prone restraint; risk factors; warning signs of a rapid onset of serious injury or death which can potentially occur in connection with certain restraint positions when subjects are in the prone position; prevention strategies; the monitoring of a subject person’s health if practical during and certainly immediately after the subjects are in the restraint positions.

4 – The Northern Territory Police should ensure that all members are trained and re-trained in strategies to deal with mentally ill persons.

5 – The Northern Territory Police should amend the General Order on Transport of Persons in Custody, and Part 6 of the Custody Manual – Mentally Ill Persons to include step-by-step instructions for police members on exercising the power of immediate apprehension for the purposes of a mental health assessment.

6 – The Northern Territory Police should amend clause 6.1.2 of the Police Custody Manual…so that Clause reflect that where legal advice is sought by a member and it is not possible to obtain that advice before the end of the member’s shift, the member should be interviewed as soon as reasonably practicable thereafter.

7 – That the legislature consider amending section 34 of the Mental Health and Related Services Act to clarify police powers and responsibilities after a section 34 recommendation has been made.

I’ve written about the NT Ombudsman’s annual reports and the small glimpses that they provide into the various instances of misconduct by the NT Police before here – noting that her annual reports to the NT Parliament only document those matters that come to her by way of formal complaint.

The point that I made then – that Carolyn Richards’ reports into NT Police misconduct present convincing support for the need for an independent authority to investigate allegations of misconduct by NT Police and public officials – are only bolstered by the instances of appalling conduct of NT Police revealed in her latest report.

You can see all of the NT Ombudsman’s annual reports here.

The chapters on NT Police misconduct make for fascinating reading, and there is little to suggest that NT Police conduct, and the quality, supervision and investigation of that conduct, has improved over time.

As Carolyn Richards told the local ABC in Darwin, past NT Police recruiting and training policies may be making no small contribution to these issues:

“…a lack of senior officers in the police force could be a reason why there have been some serious breaches of police duty of care for people in custody. “Because of the influx of new recruitments into the police and because there was a five year delay prior to 2001 where [there] were no police recruitments, we are now in the situation where we’ve got all these young officers out on the beat with six months training.”

The Northern Territory’s Acting Police Commissioner, Bruce Wernham, said: “All new police recruits undergo thorough and intensive training prior to operating under full supervision as probationary constables. “I note the ombudsman’s comments with regards to increased recruiting causing more complaints against less experienced police. “However, I am not aware of any evidence to specifically support this.”

The material in this post comes from just one of the case notes of complaints against NT police documented in the 2008-2009 annual report to the local Parliament of the NT Ombudsman, Carolyn Richards.

Some of the comments made by the unnamed Police Officer in the unidentified NT watchhouse to a prisoner being processed included:

“shut your face.”

“dumb f**k”,

“f**king loser”

“d**khead over there”

“… no brain”

“f**king retard.”

The case note, headed “No brains” detailed the treatment meted out by NT Police to a complainant who was arrested:

“…for breaking and entering. This person had fallen asleep outside the premises, due to being highly intoxicated, and was arrested at the scene. A complaint was subsequently lodged relating to his treatment whilst at the watch-house.”

Even before he made it to the cells he was getting the full benefit of the cop’s limited vocabulary:

“The complainant could be heard mumbling something whilst he was seated on the bench, although it was not discernable as to what was said. One of the attending officers responded with “shut your face.” Further comments made to or about the complainant within the next 30 minutes included, “dumb f**k”, “f**king loser”, “d**khead over there”, “… no brain”, “he’s from CSI, one of our smart criminals who breaks and enters and then collapses outside the scene” and “f**king retard.” There were several officers present during the comments, not one of them suggesting they were wrong or inappropriate.”

And it just doesn’t get any better – for the poor guy in the cell or the cop with the potty mouth.

Further examination of the audio and footage from the watchhouse cameras revealed this tasty little incident:

“…the duty officer was eating a piece of toast. He was pointing to the toast and then himself and later pointed to another breakfast behind the counter. In the officer’s statement he claimed he was indicating to the complainant that his breakfast was behind the counter. However on viewing the video it appeared the duty officer ate the complainant’s toast that was sitting with the complainant’s weetbix. He then went to a box sitting on the bin containing breakfast rubbish and took out a white bag with toast and a carton of milk. The duty officer then poured the milk on the weetbix and brought this, along with the toast in the white bag, to the complainant. It was concerning that the duty officer provided the complainant with toast and milk which appeared to have been taken from rubbish sitting on the bin.”

And thanks to the watchhouse cameras we now know that:

In addition to the inappropriate comments identified above the duty officer was heard and observed making the following statements to or about the complainant:

• “stupid f**king idiot”

• “make things quite clear, …, if you wanna f**kin’ play up I’ll make things hard for you”

• “god, he f**king stinks”

• “didn’t bang head for too long coz it hurt” one officer apparently mocking the complainant to another officer

• Two officers were joking about the complainant hitting his head against the cell door because he

wasn’t given a blanket. One officer stating that the complainant had said he would jump in the air

and land on his head killing himself. The officer then stating “go ahead, do it.” The other officer

stating “make sure you do it in front of the cameras”

• “piece of s**t that he is”

• After the officer established that the complainant was dialling his wife whom he had a domestic

violence order against, the officer said “get back in your f**king cell you spastic”; “you’ve got a

domestic violence order that says you are not allowed to contact her, you f**king wanker. You’re

not allowed to approach her, you’re not allowed to contact her directly or indirectly you f**king

wanker”

• “how about you shut the f**k up”

• “spastic c**t” whispered by officer

And what was the sanction meted out to the officer?

Here again from the NT Ombudsman’s annual report:

It was determined that some of the conduct was highly inappropriate for police officers and in breach of the NT Police Code of Conduct and Ethics and General Orders. The JRC recommended that the officers receive managerial guidance in relation to appropriate conduct when dealing with detainees. The JRC noted that it had already been recommended that the officers receive formal counselling.

The investigation also revealed that appropriate entries were not made into the watch-house log or offender journal.

Great – “counselling” and “managerial guidance” – no mention of the slap on the wrist, an apology to the complainant or any action against those other officers who, by their silent acquiescence, condoned their brother officer’s conduct.

As Glen Dooley of the North Australian Aboriginal Justice Agency (NAAJA) , which provides legal services and representation across the Top End of the NT, told the local ABC:

“…there should be tougher sanctions and more transparency.

“If we had a field officer and that field officer started calling that client a dumb whatever, a whatever loser and a whatever retard and then served them some food out of one of our garbage bins, that person would be sacked on the spot,” he said.

“The report here recommends the officers receive managerial guidance in relation to food hygiene and appropriate conduct when dealing with detainees. That’s limp to me.”

For the benefit of those members of the NT Police reading this who may have forgotten what it says – and for the rest of us who have most likely never seen it before – here is the NT Police Statement of Ethics:

STATEMENT OF ETHICS

Each member of the Police Force is to act in a manner which:

- upholds the rule of law;

- preserves the individual’s rights and freedoms;

- places integrity above all;

- seeks to improve quality of life throughout the community through involvement with the community;

- strives to attain maximum citizen confidence and satisfaction;

- strives at all times for professional excellence;

- strives to maximise the effectiveness of available human and other resources; and

- tempers authority with common sense, discretion and sensitivity

Any bids on how many of those points have been contravened here – all of them? – or none?

Have any thoughts about the effectiveness of the current investigative process for complaints against NT Police?

Your thoughts please!

Recently the local head cop, NT Police Commissioner Paul White, hosted an annual conference of Australasian police chiefs in Darwin. In the spirit of his previous comments on the activities of OMCGs, Tara Ravens, in this report from the Sydney Morning Herald says that Commissioner White:

…believed “extreme measures” were needed. “There is no single piece of legislation that is going to cure the problem,” he said. “It’s a matter for us to work together to use our best endeavours to counter the national effects of these outlaw motorcycle gangs. “These people are dangerous, they are involved in murder, they are involved in drug trafficking. They are assailants. You name it, they’re in it.”

And, while you would think that in these times where security is apparently such an all consuming concern that a gathering of the leaders of Australian police forces would be locked down in a set of hermetically sealed secure rooms where they would be protected from the nefarious forces committed to undoing their good work – particularly those evil OMCGs – it appears that the cops chose comfort over security.

The boss cop’s chose the local casino in Darwin for their accommodation for the week, and, to the alarm of several involved, it turns out that they shared their accommodation with…a bunch of Hells Angels in town for a bit of hunting and fishing.

As Dylan Welch reported in the Sydney Morning Herald:

It was a police conference about outlaw bikie issues, but nobody expected the Hells Angels to actually attend.

…

…within hours of the senior police and their entourages arriving at Darwin’s hotel and casino complex, SkyCity, Northern Territory police security realised the commissioners were sharing a hotel floor with two Hells Angels. The Hells Angels had not arrived to cause problems, but for “rest, relaxation and a party”, a bikie source said. “NT police security assessed the situation and gave the two members the option to change their rooms,” a NT police spokeswoman confirmed. “The two members declined and chose to take accommodation elsewhere.” In one of the more humorous moments, the two Hells Angels arrived to get on a commercial fishing boat the day after the conference ended only to find six police commissioners also planning a spot of fishing. “The members were interrogated by police as to what they were doing there – you know, assassination plot or fishing plan,” the bikie source said.However, he said the federal police commissioner, Mick Keelty, “went into a hyper state” after running into two Hells Angels in the foyer of SkyCity. A spokesman for Mr Keelty said there was no “incident or interaction whatsoever with the commissioner and any bikies or bikie associates”.

This is all small beer in the scheme of things and of course the cops then got down to the heavy work of saving us all from the apparently serious threats that OMCGs pose to our health and welfare.

It is useful to have a brief look at what is but one indicator of why we should be a little less ready to accept the hype broadcast by the forces of law and order that the OMCGs are some form of criminal evil incarnate.

A few years ago The Finks MC held a run to Alice Springs to celebrate the opening of their new clubhouse. Predictably the NT police reacted with their usual strength in numbers and force – as the NT Police media office reported:

A team of police officers led by Detectives from the Drug and Intelligence Unit, Alice Springs, executed a total of six search warrants between Thursday 13 April and Saturday 16 April 2006 on a clubhouse, a business and four separate residential properties in the town area all known to be linked to the gang.

The Police seized an unknown quantity of speed, some firearms, ammunition and minor weapons and arrested one woman and four men, only one of whom was a Finks MC member.

A month later it appears that the Finks MC members and associates were still in the Alice and the cops were still on their case. Whether through frustration at being unable to pin some major crimes on The Finks MC members while they were in Alice or through sheer drunken stupidity, on the Sunday night of the weekend of 6 and 7 May 2006 a few of the Police involved took matters into their own hands.

As the local NT News reported at the time:

Six off-duty police officers who allegedly damaged property inside an outlaw bikie gang’s clubhouse were caught on video camera, it was claimed yesterday. The Darwin-based officers are believed to have kicked in the door of the clubhouse in Alice Springs last week after an alleged drinking session at a nearby hotel. It is alleged that in two separate raids, a numberplate was stolen from a vehicle parked outside the clubhouse and a sign smashed. The bikies claim they captured the alleged break-in on video and gave the tape to police early last week.

Another officer involved in the operation claimed the six off-duty officers had been drinking on the night of the incident and had tarnished the reputation of the police force. “They went out and got on the piss and destroyed the integrity of all the other officers involved in the operation,” the officer alleged.

NT Police media director Sandra Mitchell denied the Police Commissioner had paid $1000 over the bar for the officers’ alcohol on the night of the incident. “The Commissioner paid for absolutely no drinks at the end of the operation,” she said.

That the Commissioner didn’t pay for a few drinks doesn’t really answer the question now does it? Maybe the local commander fronted the bar tab – who knows?

In July 2006 the NT Police media office reported that the six off-duty NT Police officers who had been involved in the ‘incident’ at the Finks MC clubhouse in Alice Springs were the subject of NT Police internal disciplinary proceedings.

The six officers were suspended with pay following a preliminary assessment of the circumstances of the incident, which allegedly occurred on the Sunday evening, after the completion of a special policing operation. Three of the officers were recently allowed to resign and another had his appointment as a police officer terminated. The two remaining officers who were suspended are the subject of ongoing disciplinary matters.

The six officers were part of a major operation conducted to maintain law and order and public safety during an event which saw in excess of 100 members and associates of the Fink Motor Cycle Gang converge on Alice Springs on the weekend in question. They were alleged to have been involved in two incidents involving property at the Finks club house.

Commissioner of Police, Paul White, said the allegations were serious and it was unfortunate that the success of the operation had ended up on this note. It was also regrettable that the careers of the four police officers had ended in this fashion.

The operation in Alice Springs was noteworthy for its professionalism and positive effect. The visible and focussed police presence ensured an incident-free weekend for residents of Alice Springs with social order maintained despite the large number of Fink members in the town, said Commissioner White.

Yes, well he would say that wouldn’t he…it is a very rich spin indeed that regards three officers resigning and others having their appointments as Police officers terminated as an exemplar of professional conduct likely to instill public confidence in the integrity of the NT Police force.

Other versions of the events were not so circumspect. A more humorous, and most likely more accurate, version of events was reported by the Sydney Morning Herald on 10 July 2006:

LAW AND LAST ORDERS

Cops and bikers don’t mix very often, but when they do, things get ugly.

After a “drinking session” at the pub, some off-duty Northern Territory police allegedly decided to try to spook a local bikie gang after supporters of the Finks arrived in Alice Springs to celebrate the opening of a new clubhouse. Six tipsy officers converged on the premises and kicked down the door. What happened next is not yet public, but we assume it involved lots of stumbling around the shadows, an occasional meaty thud and some muffled curses.

The surprised bikies captured most of the raid on video and did the responsible thing: handed it in to the police. Three officers have resigned, another was sacked and two are being investigated. No bikies have yet been promoted.

I’ll continue to follow and report on similar incidents of NT Police misconduct – particularly in relation to bikers in the NT – not only because such incidents are relevant in the broader scheme of the legislative and policy responses to the supposed threats that the activities of OMCGs present to peace and good governance but, more importantly, how effective those responses are – particularly in a context where individuals are targeted for the mere fact of their association with members of their club – rather than any particular crimes they may have themselves committed.

Meanwhile, calls for widening of extreme laws against criminal bike gangs (see Gangs rally for legal challenge), and the probability of a renewed moral panic in the wake of the latest minor upsurge in “boat people” arrivals off northern Australia, seem certain to bring these matters back into sharp legal and political focus.

As Ken Parish said in this post over at Club Troppo recently in relation to the current ongoing disputes between the State and the Courts – a fine example of what post-structuralists call ‘the state of exception’ – as exemplified by the High Court of Australia’s recent judgement in Thomas v Mowbray:

In case I haven’t made myself clear, my point is more nuanced than the tiresome left versus right dualism that pervades both the blogosphere and MSM. Terrorism, criminal bikie gangs and people smuggling operations are entirely legitimate subjects for government concern and possibly legislative action. However, they demand proportionate responses, and carefully considered checks and balances to reduce the risk of extraordinary powers being abused. Kneejerk populist political responses to media-fuelled moral panics don’t produce optimal or even workable laws or policies.

I’ve recently written here about the apparent reign of criminal terror that the bakers dozen of Hells Angels MC members and the sole representative of the Finks MC that live in the Northern Territory are, if you are foolish enough to believe the spin coming from NT Police and politicians, wreaking across the length and breadth of the NT.

And, according to the Northern Territory Police Commissioner, Paul White they represent a real threat to that esteemed citizen of the NT, Laura Norder. As he told the ABC earlier this week:

…it is important that police in the Territory work with all Australian police to stamp out the gangs, as members are very closely linked to their interstate counterparts.

“They are a national network,” he said.

“They are involved in murder, shootings, violence, drug supply, extortion. You name it, they do it.

“And they’re just out and out criminals and the NT Police is really keen to keep on top of them.”

White will host a meeting of Australian and south-west Pacific Police Commissioners in Darwin this week.

As the spinners at the NT Police media unit describe it:

Commissioners from Australasia and the South West Pacific Region are making their way to the Top End for the Annual Police Commissioners Conference 2009. The Northern Territory Police are the hosts of this years Commissioners Conference entitled ‘Leading and Managing Change in Policing – Serious and Organised Crime.’

Topics including policing outlaw motorcycle gangs, alcohol issues, unsolved homicide and criminal property confiscation, will be discussed at this years conference.

My real concern here is that, perhaps more than anyone else in the NT, White should at least have a minimal appreciation of the distinction between hyperbole and fact – saying that all members of the HAMC and the sole Fink in the NT are involved in a panopoly of crimes from murder down seems to me to be well over the top in terms of hype and spin and more than likely factually wrong.

One novel approach that the NT Police has taken to ‘keeping on top of’ the members of the Hells Angels MC and their predeccessors in the NT, the Blonks MC, and apparently with the assistance of the Australian Crime Commission, is to hit the thirteen members of so-called Outlaw Motor Cycle Gangs (OMCGs) living in the NT in their hip pockets and to seize their land title.

Before the Hells Angels came to the NT, the NT’s only OMCG was a group known as the Blonks MC (Bike Lovers Only Need Kick Starts).

The Blonks MC kicked off in the early 1980’s based in Darwin and were the subject of a soft takeover by the Hells Angels MC in 1993 after a number of Blonks MC members became affiliate members of the Adelaide chapter of the HAMC.

The Blonks MC had a large property at Darwin River and the Blonks MC clubhouse at Howard Springs became Hells Angels property – at least in practice. But it appears that they failed to effect a legal tranfer of ownership of the larger block of land.

The Blonks were incorporated in 1986 under the NT Associations Act, section 65 of which allows the Commissioner of Consumer Affairs to dissolve an Association which ‘is not carrying out its objects or is not in operation‘. Section 68 of the Associations Act provides that, subsequent to that dissolution, the property of a dissolved association vests in the Commissioner, who may then sell it.

I’m unclear what has happened to the Blonks MC land at Darwin River but on 12 July 2006 the Commissioner of Consumer Affairs issued a Notice that the Blonks was dissolved.

Following that Notice the Public Officer of the Blonks MC, Paul Anthony Johnson, took action in the NT Court of Summary Jurisdiction challenging a related matter of a declaration by the NT Police Commissioner under section 40 of the Associations Act that he was a person ‘unfit to be an officer of an incorporated association’.

Johnson’s application was heard by Magistrate David Loadman, who, on my reading between the lines of his judicial language, was scathing of the actions of the NT Police and their apparent misuse of the powers in the Associations Act, describing the power to declare a persons ineligibility to be a Public Officer by the processes available as ‘draconian’ and that:

Extraordinarily the police whose certificate is the very basis for the decision the subject of the appeal cannot as is evident be compelled to even tell the court of the basis on which the certificate was given. Mr Anderson for the Respondents made the alarming submission that this statutory exemption extended to every officer in the Northern Territory Police Force which would seem to make a complete mockery of the process and severely offend the principles of natural justice or procedural fairness as it is also known.

Johnson gave evidence in which he stated that, contrary to the assertion that he was a person unfit to be a Public Officer he had never been convicted of a criminal offence and that he had been a member of the Blonks MC and later of the Hells Angels MC, a point that received a lot of attention during his cross-examination, the reason for such extensive cross-examination Magistrate Loadman found ‘was obscure’.

Character witnesses gave evidence that Johnson was a hard working family man that enjoyed riding motorcycles.

Magistrate Loadman then considered the evidence of the NT Police in support of the declaration that Johnson was an unfit to be a Public Officer. That evidence came in the form of an affidavit and sworn testimony from Detective Sergeant Jamie Andrew Chalker, then a 12-year veteran of the NT Police.

Magistrate Loadman’s construction is a bit clumsy but nonetheless he is scathing of Chalker’s evidence and the NT Police case, which amounted to nothing more than wild assertions masquerading as facts that Johnson was unfit to be the Blonks MC Public Officer. It is worth quoting at length:

The significant observation by the Court which will be made repeatedly is that there is no evidence provided by him to support that statement and the proposition which was the subject of some comment by the Court after he had finished his evidence that the second Respondent was firstly not compellable or to give evidence, but could come along make that sort of statement not supported by any evidence, is regarded by the Court as extraordinary.
He describes an extensive knowledge or alleges an extensive knowledge derived from intelligence reports and other sources, but again doesn’t in fact disclose that knowledge which indeed he consistently refused or declined to do.
He alleges that as an investigator he is possessed of a thorough understanding of HAMC; the roles and responsibilities of its members, but again was not prepared to disclose the basis upon which he was able to make the statements that he did. Relevantly he said that since 1993 Blonks Motorcycle Club Inc was used solely for the convenience and the advantage of the Darwin Chapter of HAMC. The statement is made without any supporting evidence being called and it seems that the Court, at least in his perception, is supposed to accept whatever he says as having been proven by admissible evidence.

Much of his evidence was related to the undisputed fact that the Appellant was a full member of HAMC and nothing significant turns on that. Annexure JAC4 to Chalker’s affidavit is a list of members of “Blonks Motorcycle Club Inc” provided by the first Respondent. The Appellant was not sure whether he was a member of that organisation, but the fact that he is in fact a member is neither in dispute or in anyway remarkable. He never denied he was such a member.

He then asserts criminal records and activities pertaining to James Scott Parnell Knight and Ian Grant Hogan both members of HAMC. Quite why that should prove the Appellant is an unfit person for the job or not a fit and proper person for the job of public officer is at least remote in this Court’s perception. He gave oral evidence that although the Appellant denied being involved in the cultivation of cannabis, possession of stolen property and possession of illegal firearms (pistols) he maintained his involvement, but gave the same reasons for the absence of any evidence namely he was unable or unwilling to reveal the basis for his contrary view and the Court remarks in a like manner as it has in respect of concomitant assertions by him.

…

As Mr Powell [for Johnson] correctly says absolutely no procedural fairness has been observed. The allegations are made without any supporting evidence.

Magistrate Loadman then proceeds to reject outright a number of submissions made to him by Counsel for the NT Police. In respect of the last of these he notes that:

It is extraordinary in this Court’s finding to hear a submission from Counsel to the affect that when a witness claims privilege against self incrimination it ought alone to suffice to enable the Court to find he is not a fit and proper person to hold public office. The Court emphatically rejects that proposition and finds it quite alarming.

He then proceeds to put the NT police case, based upon no facts, in an historical context:

It is also significant that section 114(6) of the [Associations] Act specifically cites “the Court may make its decision only on the evidence given by a party to the appeal” what could be more clear. Without evidence the Court cannot make a decision and is certainly not prepared to make the decision on the basis of statements by police officers, this smacking of that hoary old chestnut, “trust me I’m a lawyer” in this case “trust me I’m a policeman”. We do not any longer have courts functioning in the manner of the Star Chamber. That reference is a reference to the Court of Star Chamber which by the time of the reign of Charles I of England had become synonymous with misuse and abuse of power by the King and his circle.

Unsurprisingly, Magistrate Loadman granted Johnson’s appeal against the declaration that he was a person unfit to be the Blonks MC Public Officer.

Round Two in the fight by the Blonks MC against the NT Police was fought in the NT Supreme Court, where Johnson made application to overturn the Notice of June 2006 to dissolve the Blonks MC. At stake here was the valuable property of the Blonks at Darwin River.

Before Justice Steve Southwood Johnson enjoyed none of the fortune he received in the Magistrates Court and in his decision in Johnson v Commissioner of Consumer Affairs [2009] NTSC 4 Southwood J found that the Blonks MC had in fact not been functioning since about mid-2006 and that Johnson’s application be dismissed.

In effect what this meant was that the valuable property at Darwin River would vest in the Commissioner for Consumer Affairs, i.e. the NT Government.

The Hells Angels MC and their associates in the NT had been the subject of considerable attention by both the NT Police and the ACC through the latter agency’s OMCG Task Force. In late 2004 and early 2005 the ACC issued a number of summons to NT Hells Angels MC members requiring that they appear before an ACC Examiner in Darwin and compelling them to give evidence in relation to their knowledge of the activities and finances of a person named Gary William Watt and the Hells Angels Motorcycle Club from 1995 and those of the Blonks Motorcycle Club Inc and the Blonks Trust from 1985.

All of the Hells Angels refused, apparently on legal advice, to answer the ACC’s questions despite being ordered to do so. They were all subsequently arrested and charged and all eventually entered guilty pleas (see R v Dunkerton, Wills and Eaton, R v Johns and R v Knight, Johnson and Murphy)

What is interesting in these matters is that in relation to the assumptions, current at the time that the cases being heard and also, per Commissioner White’s contemporary comments above, still alive in the minds of the NT Police to this day, that all members of the Hells Angels MC are inherently criminal.

Here it is clear that the Court had direct evidence relating to the character of each of those entering guilty pleas and that evidence shows that notwithstanding a few with serious criminal histories, most of the members of the Hells Angels MC charged by the ACC had no, or relatively minor, criminal histories.

Wills had several old and minor convictions and had been conviction-free since 1996. He was sentenced to 12 months imprisonment, to be released after two months on good behaviour and thence to be bound to a $5,000 good behaviour bond for two years.

Eaton similarly only had a few old and minor relevant convictions but was considered more culpable than Wills and was sentenced to 12 months imprisonment, to be released after three months on good behaviour and thence to be bound to a $5,000 good behaviour bond for two years.

Like Wills and Eaton, Dunkerton only had a few old and minor relevant convictions, though had received a suspended sentence for assault and was sentenced to 12 months imprisonment, to be released after three months on good behaviour and thence to be bound to a $5,000 good behaviour bond for two years.

In the separate proceedings of Knight, Johnson and Murphy, Johnson had no relevant or recent criminal convictions and was released on a bond of $5,000 to be of good behaviour for two years. Parnell was sentenced to 9 months imprisonment to be suspended after two months and thence to be bound to a $5,000 good behaviour bond for two years. Murphy, like Johnson, had no relevant or recent criminal convictions and was released on a bond of $5,000 to be of good behaviour for two years.Johnson had no relevant or recent criminal convictions and was released on a bond of $5,000 to be of good behaviour for two years.

Johns appeared in separate proceedings to the others before Justice Angel, most likely, as the judge noted, because he gave evidence that he had left the Hells Angels because he had ‘mentally outgrown the members of that club’. Johns was sentenced to ten months imprisonment but to be suspended on the rising of the court. Johns was also bound to a $5,000 good behaviour bond for two years.

What I think these cases show is that, despite wielding their best investigative and propaganda efforts and their considerable legal and administrative resources the NT Police and agencies like the ACC have, overall, been frustrated in their attempts to break the Hells Angels in the NT.

They have had several wins – several have Hells Angels received jail sentences, even if only for relatively brief terms, and the NT Government, through a flanking approach to the property rights and interests of the Blonks MC and Hells Angels MC, has been able to effectively seize a valuable piece of property – but the Hells Angels are still free to ride the roads of the NT – albeit, it seems, with an almost permanent NT Police surveillance effort.

What an absolute waste of good public money.