Lyons, Greg --- "Editorial: Ti Tree Revisited" [1982] AboriginalLawB 21; (1982) 1(4) Aboriginal Law Bulletin 2

• Editorial: Ti Tree Revisited
• Deficiencies In The Investigation
• Method Of Apprehension And Use Of 'Billies'

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Editorial:

Ti Tree Revisited

by Greg Lyons

On 20th July 1980, two NT Police Constables were returning to their Police Station at Ti Tree, some 180 kilometers north of Alice Springs. Shortly after dark, Constables Clifford and Warren stopped a car travelling in the opposite direction. They arrested the driver for driving whilst under the influence of alcohol, and they arrested several other Aboriginal people travelling in the car. A fracas ensued during which Clifford received a blow on the head and two Aboriginal people were shot, one fatally. Following a Coronial Inquiry into the cause of death of Johnny Ross Jabanardi, Constable L.R. Clifford was ordered on 12 August 1981 to stand trial on a charge of murder. He was also charged with the malicious wounding of Freddy Pepperil Jagamara. On 30 October 1981, an all-white jury acquitted Constable Clifford on both charges. So much for the bare outline of the Ti Tree Case. The matter has not however ended with Constable Clifford's acquittal.

On 14 December 1981, Mr.. G.P. Galvin C.S.M. who conducted the Coronial Inquiry into the death of Johnny Ross Jabanardi released a statement of his reasons for sending Constable Clifford for trial. (The statement was not released before the trial as it could have prejudiced the accused's chances of receiving a fair hearing). The statement lists serious deficiencies in the Police investigation of the Ti Tree incident. The purpose of this editorial is to focus attention on some of those deficiencies, and to ask whether the NT Police Commissioner and Attorney General have taken steps to ensure that in future, adequate investigatory procedures are adopted.

A preliminary point needs to be made. Where Police officers are duty-bound to investigate potentially culpable behaviour by other Police officers, there will always be an element of doubt as to the impartiality of the inquiry. Following the release of Mr Galvin's statement of reasons, CAALAS solicitor Henry Spooner commented: 'The problem of police investigating their own members is one which bedevils most police forces in most countries. The statement of reasons by Mr Galvin clearly demonstrates the problem is as far (if not further) from solution in the Northern Territory as it is elsewhere'. Leaving aside this comment and the almost intractable problem it highlights, deficiencies in the Police investigation identified by Mr Galvin require consideration.

Deficiencies in the investigation

• In a record of interview made shortly after his apprehension, one of the Aboriginal people travelling in the car made two allegations of assault on him by Constables Clifford and Warren. Mr Galvin comments: 'Despite these two quite clear and unsolicited complaints, there were no' follow up questions in the record of interview seeking to elucidate the allegations .. . In my view this lack of immediate follow up both by the interviewing officer and also the co-ordinating officer in charge was a cause of much later confusion . . . No satisfactory explanation was given for this very serious matter'.
• Police investigating the incident took no statement from Constable Warren's wife who was present at the medical clinic on the return of the Police. While statements were taken from two nursing sisters at the clinic, Mr Galvin notes that a statement from Mrs Warren would have been useful either to confirm or contradict the statements of the two nurses. 'This evidence, having regard to the fact that it is very close to the incident, should have been elicited'.
• While pointing out that there was no evidence of excessive consumption of alcohol by the Police officers prior to the incident, Mr Galvin points out that no effort was made to clarify a discrepancy in statements concerning the amount of alcohol consumed.

'This item was not followed up and yet considerable time and effort was made on behalf of the police in relation to the consumption of alcohol by the Aboriginals on that day and in comparison to the inquiries made in relation to the police, there is certainly a large degree of difference'.

• Investigating Police did not separate Constables Clifford and Warren when statements were taken from them. Mr Galvin considered that even though the Constables had been together for some time after the incident, they should have been interviewed separately, once a decision had been made to obtain statements from them. 'The separate verbal statements would then be available for assessment by the investigators'. Mr Galvin also notes that when instructed to make an entry in the Day Journal concerning the incident, Constable Warren did so while he had an opportunity of consulting with Constable Clifford. 'In fact the Day Journal entry contained many completely false facts regarding the movements, work and activities of the police during the afternoon. One is left to speculate on the reasons for these inaccurate statements'.
• Investigating Police failed to put various discrepancies to Constables Warren and Clifford during their interviews with the two constables. For example, explanations were not sought concerning variations in accounts of the number of warning shots fired, or whether any were fired at all. 'The failure to put these discrepancies to the witnesses for comment amounts to a serious failure in the investigation techniques'.

The Chief Stipendiary Magistrate also noted in his statement of reasons that there were `serious gaps in the forensic investigation of this incident'. One example will suffice: Constable Clifford's clothing was never examined, despite his claim that he had been dragged through dust during the incident. An opportunity for objective verification of a claim was lost.

Method of apprehension and use of 'billies'

In reviewing the incident, two further matters caused Mr Galvin concern. To stop the on-coming car, the Police 'took the most unusual course of driving onto the incorrect side of the road and with headlights and blue flashing lights on, drove into the projected course of the Holden vehicle. In fact this vehicle does manage to stop, and both vehicles halt facing each other with a very short distance between .. . The method of apprehension appears quite extraordinary and puts both the police officers and the driver and passengers in the other vehicle at considerable personal risk ... In my view there was no urgency about this situation which would have prevented a more orthodox method of apprehension. At no time has any satisfactory explanation ever been given for the course adopted'.

During the Police investigation, it emerged that Constable Clifford had been struck by a 'billy' or cut-down shovel handle which had been in his Police vehicle. At the Inquest, a Police officer gave evidence that 'billies' were commonly on Police premises and apparently available for use. Mr Galvin found this evidence disturbing. There was no provision for the use of 'billies' in Police Standing Orders, and Mr Galvin hinted at their potential to intimidate and perhaps provoke. He called on the Police Commissioner to 'investigate the need for their use' and for Standing Orders to be either amended accordingly, or for the Orders to prohibit the use of such weapons.

While stating that there could be no finding that the Police investigation was biased, incompetent or that it proceeded on the basis that Constables Warren and Clifford should be protected, Mr Galvin did find that 'the faults in the investigations, combined with forensic deficiencies are such that it is my view that the investigation was not of sufficient standard required by the situation'. Mr Galvin also called on the NT Attorney General to consider the deep problem already mentioned: whether it is appropriate for Police officers to carry out an investigation into the conduct of members of the same Police Force. Mr Galvin called on the Attorney General to 'formulate a plan of action should the need arise in the future'. One can only hope that the need will not arise. If it does, let us hope that lessons have been learnt from the Ti Tree Case.