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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 17371-1
DEPUTY PRESIDENT HAMILTON
BP2007/3224
s.430(9)(b) - Appl’n for order to suspend or terminate a bp (endangering life)
The Chief Commissioner of Police
and
Police Federation of Australia
(BP2007/3224)
MELBOURNE
10.25AM, WEDNESDAY, 05 SEPTEMBER 2007
Continued from 4/9/2007
Hearing continuing
PN98
THE DEPUTY PRESIDENT: Any changes to appearances?
PN99
MR W FRIEND: I now seek leave to appear as counsel for the Police Federation of Australia.
PN100
THE DEPUTY PRESIDENT: Thanks very much. Right. Directions were issued yesterday. In compliance with those directions I have the witness statements and outline of submissions from the applicant. Is there anything we need to address about that before I have got a few words about procedure?
PN101
MR PARRY: I'm sorry, your Honour?
PN102
THE DEPUTY PRESIDENT: I have a few words to say about procedure unless you want to deal with anything else first?
PN103
MR PARRY: Perhaps I'll go after you, your Honour.
PN104
THE DEPUTY PRESIDENT: A fair point. There's a fairly tight timeline for this matter imposed by the Act and I would like to raise with the parties the issue of endeavouring to deal with to hear evidence and written submissions from each side within say two days. I think the applicant indicated its intention to cooperate with the Commission procedurally and I thank them for that. It may not be possible but I would simply ask the parties to endeavour to deal with the matter in that way. That would provide for the matter to be heard and determined within five days, or would at least maximise the chances of that being done. Now, I just raise that with the parties, unless people want to address that at the moment, feel free to do so, but I just ask that an endeavour be made to expeditiously hear the evidence and submissions if that's possible. So is there anything anybody wants to raise?
PN105
MR PARRY: If your Honour pleases. We have, as your Honour has indicated, prepared, filed and served statements in accordance with your directions. As I also indicated yesterday, they were prepared in and finished in a short time frame and there will necessarily be some minor amendments and short further evidence called from each of the witnesses. I'd also indicate that the directions your Honour makes involve us calling evidence and preparing statements without any real idea of what's going to be said on the other side and accordingly we have really no idea about what will be said about our evidence or what other evidence will be called.
PN106
Ultimately that may necessitate the recall of some of our witnesses if things are said about them or things said about their evidence and indeed that appears rather likely if we are taken by surprise and also start understanding what's put against us. So I indicate to the Commission that that is a real possibility that there will have to be the recall of some witnesses.
PN107
MR FRIEND: Can I say in regard to that, your Honour, that obviously we received this material at 5 o'clock. There's only two of us here because everyone else is at this moment trying to prepare statements to give to my learned friends what statements we can at the end of day. I am going to do my best to put everything that I can to the witnesses but I was going to say in any event that I may not be able to achieve that aim. If it's a significant matter and my learned friend wants to recall the witness, well, then I don't know that I would stand in his way. But we will do our best to put our case in the course of cross-examination as of course we are ordinarily obliged to.
PN108
THE DEPUTY PRESIDENT: Yes.
PN109
MR FRIEND: It's unusual circumstances because of the time frames that are imposed upon us all.
PN110
THE DEPUTY PRESIDENT: Yes. I suppose the time frame of the Act and also the manner in which the application was made and sought to be proceeded with of course.
PN111
MR FRIEND: Yes.
PN112
THE DEPUTY PRESIDENT: Which eliminated I think two days in a sense from the process of hearing.
PN113
MR FRIEND: Yes.
PN114
THE DEPUTY PRESIDENT: I make no criticism. It's simply a fact of the way it happened. Well, would it be of assistance, Mr Parry, if Mr Friend made some sort of preliminary outline of submissions, if he's in a position to do that?
PN115
MR PARRY: That would be of a fair bit of assistance, your Honour.
PN116
THE DEPUTY PRESIDENT: All right. I take it, Mr Friend, you've had the opportunity to read the outline of submissions and the witness statements?
PN117
MR FRIEND: I've read them.
PN118
THE DEPUTY PRESIDENT: I can't say I've read every word of the attachments. Are you able to give us an outline of how you intend to respond?
PN119
MR FRIEND: I can do something along those lines, your Honour, but I must say I've paid more attention to the witness statements than the outline at this stage of the proceedings.
PN120
THE DEPUTY PRESIDENT: Yes.
PN121
MR FRIEND: But can I do it really by talking about the bans, the particular bans that are the focus of the evidence of the applicant.
PN122
THE DEPUTY PRESIDENT: And they were said to raise an issue of safety.
PN123
MR FRIEND: Of endangerment, yes. There will be issues, your Honour, and I think my learned friend will be aware of the arguments. I think we've certainly had them before about what endangerment and all of that is so we probably - - -
PN124
THE DEPUTY PRESIDENT: I think it's safety not health -
PN125
Endanger the life, the personal safety or health or the welfare.
PN126
MR FRIEND: Yes, yes.
PN127
THE DEPUTY PRESIDENT: I think that's what the evidence goes to.
PN128
MR FRIEND: Yes, that really is going to be as I apprehend it the substantive point between the parties and likelihood of these matters.
PN129
THE DEPUTY PRESIDENT: Yes.
PN130
MR FRIEND: Each of the bans, as a general point, each of the bans that are complained of and they are 4, 10, 12, 13, 14, 16, 17 and 21, each of those was the subject of an identical, or for all intents and purposes, identical ban in the negotiations in 2001. So we'll be making that point and we'll be making points about what happened in 2001. Dealing with the seriatim and I'm doing this in just a brief opening way - - -
PN131
THE DEPUTY PRESIDENT: Sorry, could you just give me those numbers again?
PN132
MR FRIEND: Yes. The ones that are raised in the evidence are 4, 10, 12, 13, 14, 15, 16, 17 and 21.
PN133
THE DEPUTY PRESIDENT: Understood, okay.
PN134
MR FRIEND: Okay. Number 4, does your Honour have a copy of the - they're in the application. The current bans, the copy I'm looking at is the ballot prepared by the AEC.
PN135
THE DEPUTY PRESIDENT: A copy of the ballot, yes, the declaration of result, protected - - -
PN136
MR FRIEND: Yes.
PN137
THE DEPUTY PRESIDENT: I have got that.
PN138
MR FRIEND: Number 4 is the ban on the preparation provision on statistical information.
PN139
THE DEPUTY PRESIDENT: Yes.
PN140
MR FRIEND: I wonder if you could order witnesses out of court, your Honour?
PN141
THE DEPUTY PRESIDENT: That included evidence about hot spots and so on.
PN142
MR FRIEND: I'm sorry?
PN143
THE DEPUTY PRESIDENT: That included evidence about hot spots and so on I think.
PN144
MR FRIEND: Yes, I think there's some evidence in that regard. I wonder if witnesses out of court while I do this, your Honour?
PN145
THE DEPUTY PRESIDENT: Yes. Would that be acceptable, Mr Parry?
PN146
MR PARRY: I don't oppose that, your Honour.
PN147
THE DEPUTY PRESIDENT: Right. Would all witnesses please leave the court. Thanks very much. We won't be long. Mr Friend.
PN148
MR FRIEND: Statistical information, your Honour, there's no ban on statistical information - sorry, there's no ban on reporting or preparing the material that is related to operational matters. The ban is on statistical information simpliciter. That's one point. The second point in regard to that, and this is speaking broadly, is that in terms of practical operational policing the statistical information that's referred to in Mr Ashby's statement and the way it's used has very little if any effect, and we'll be calling evidence in this regard obviously. The next is number 10 -
PN149
Members only make themselves available for recall to duty if they are in receipt of availability or on call allowance.
PN150
THE DEPUTY PRESIDENT: Sorry, so operational duties mean everything affecting the public in the sense of policing?
PN151
MR FRIEND: Policing, yes.
PN152
THE DEPUTY PRESIDENT: Right. There's no statistics, there's no been
on - - -
PN153
MR FRIEND: There's no ban on information that is relevant to operational policing.
PN154
THE DEPUTY PRESIDENT: So if there's hotspot of larceny, theft from cars, that will be revealed and - - -
PN155
MR FRIEND: Well, there will be information about that collected and what's more, your Honour, the way in which that works is that it happens at the local level.
PN156
THE DEPUTY PRESIDENT: All right. Go on, sorry.
PN157
MR FRIEND: Number 10 -
PN158
Members only make themselves available for recall to duty if they are in receipt available or on call allowance. Minimum of two members to be recalled on any occasion.
PN159
Your Honour, that's really the case in regard to that is that that's a financial constraint.
PN160
THE DEPUTY PRESIDENT: It's a what?
PN161
MR FRIEND: A financial constraint. It has a financial effect on the employer but no effect on operational policing. Number 12 -
PN162
Members not to attend court as informant or witness other than in reply to a subpoena.
PN163
Is the same. It's a question of organising the subpoenas. 13 -
PN164
Members not to serve subpoenas or - - -
PN165
THE DEPUTY PRESIDENT: I think the point was made in the evidence, correct me if I'm wrong, that this will divert resources of the police which otherwise would be engaged in operational policing. There'd be more forms to fill out, more time taken, and that's the same with a number of those.
PN166
MR FRIEND: I don't have that recollection of that evidence, your Honour.
PN167
THE DEPUTY PRESIDENT: No, I might stand corrected on that.
PN168
MR FRIEND: Well, I might too and we're all working with incredibly high speed.
PN169
THE DEPUTY PRESIDENT: Yes.
PN170
MR FRIEND: But it's our case that it won't have that effect.
PN171
THE DEPUTY PRESIDENT: All right.
PN172
MR FRIEND: Similarly 13 - - -
PN173
THE DEPUTY PRESIDENT: So there'll be no diversion of resources away from operational policing to paperwork?
PN174
MR FRIEND: No, and your Honour, 12, 13 and 14 is all - sorry, I should deal with 14 separately. 12 and 13 - sorry, 11 and - sorry, 12 and 13 are matters that were subject of bans on the last occasion and we know what happened then. We can tell your Honour about that. 14 is also something that happened on the last occasion, although the bans were broader on the last occasion. They're narrower this time. We could tell your Honour happened there. 14 is the subject of some expert evidence. We'll produce some evidence in relation to the reality rather than the opinion of what might happen because we can tell what happened last time and we'll also be giving some evidence about how the infringement notice system works and I'll be able to put this to Mr Ashby later this morning.
PN175
15, which is shop lifting and drug offences by summons only, is a resourcing matter in terms of it will put matters into the court by summons. We say it won't have any of the relevant deleterious effects.
PN176
THE DEPUTY PRESIDENT: So a refusal to caution which takes lesser time, so I'm told in one of the witness statements, say 30 minutes instead of 90 minutes for a summon, won't divert, won't police engaging in operational matters or lessen resources?
PN177
MR FRIEND: No, your Honour.
PN178
THE DEPUTY PRESIDENT: Diverted to operational matters?
PN179
MR FRIEND: No, your Honour, we say it won't.
PN180
THE DEPUTY PRESIDENT: It won't, okay.
PN181
MR FRIEND: Not in the way that's - and remember, your Honour, is not lessening resources. It's endangerment and that's a very important word in this case.
PN182
THE DEPUTY PRESIDENT: Yes, threatening.
PN183
MR FRIEND: But you have to threaten to endanger. Endangerment applies to every aspect of the harm that's got to be either happening or threatened. Similarly execution of warrants is a matter that we say won't affect anything in a relevant way. Performing voluntary duties is not an issue, and we'll take your Honour to this in due course, police - - -
PN184
THE DEPUTY PRESIDENT: I think sporting facilities - - -
PN185
MR FRIEND: Yes, this is the football and what have you.
PN186
THE DEPUTY PRESIDENT: Yes, spring carnival.
PN187
MR FRIEND: What normally happens is that police are asked if they wish to volunteer. People volunteer, they attend and they're paid at ordinary time rights.
PN188
THE DEPUTY PRESIDENT: Right.
PN189
MR FRIEND: They're off duty police. There is nothing at all to stop the Commissioner rostering those police or any police who off duty, on duty to do those tasks.
PN190
THE DEPUTY PRESIDENT: So it's a procedural change?
PN191
MR FRIEND: Well, it has another effect because if they're rostered on duty they're paid at overtime rates rather than at ordinary time rates which is what they get if they volunteer. It's a financial impost upon the Chief Commissioner.
PN192
THE DEPUTY PRESIDENT: I see.
PN193
MR FRIEND: But that's what industrial action is about, your Honour. 21, we will give evidence that in practical terms there'll be no difference to the way matters are conducted now, except that it may be police stations. Pardon me a moment, your Honour. There'll be perhaps some financial issues in relation to 21. That's a very brief summary, your Honour.
PN194
THE DEPUTY PRESIDENT: So nobody will be diverted away from operational policing?
PN195
MR FRIEND: No, no.
PN196
THE DEPUTY PRESIDENT: All right.
PN197
MR FRIEND: That's not the intention and it's certainly not the intention to endanger the health, safety, life or welfare of the community at all with any of these bans and they've been very carefully crafted. As I said to your Honour before, they were used on the last occasion, each of those, and we'll go to that in due course.
PN198
THE DEPUTY PRESIDENT: All right.
PN199
MR FRIEND: If your Honour pleases.
PN200
THE DEPUTY PRESIDENT: Thank you very much. Mr Parry.
PN201
MR PARRY: If your Honour pleases. Perhaps I could indicate what I would propose doing is indicating the order of witnesses that we would propose calling and I would propose tendering some documents and then going through our outline of submissions. Obviously your Honour has read it but we want to go through and highlight some aspects and so forth. Your Honour, we have Assistant Commissioner Noel Ashby who will give evidence first. We had proposed following him with Dr Newstead, the expert, but at the request of my learned friend we've put him off until tomorrow. The second witness will be a Deputy Commissioner Kieran Walshe. The third will be Findlay McCrae and the final witness who is available tomorrow, Assistant Commissioner Ken Lay.
PN202
THE DEPUTY PRESIDENT: So two witnesses tomorrow, is it?
PN203
MR PARRY: Yes, your Honour.
PN204
THE DEPUTY PRESIDENT: All right.
PN205
MR PARRY: Now, we've filed the application, your Honour, and attached to the application are some documents.
PN206
THE DEPUTY PRESIDENT: Yes.
PN207
MR PARRY: And perhaps to run through them.
PN208
THE DEPUTY PRESIDENT: All right.
MR PARRY: Now, I would propose tendering these documents. I indicate that we have two copies of the two certified agreements that are currently in existence, the general agreement and the commander's agreement. I don't propose handing them up to your Honour because they don't seem to take the matter a lot further, but if your Honour seeks a copy of those we can provide them at an appropriate stage. Your Honour, there is the first attachment there is the notice to initiate bargaining period. I would tender that document.
EXHIBIT #POLICE1 NOTICE TO INITIATE A BARGAINING PERIOD
PN210
MR PARRY: Perhaps Mr Ashby could be permitted to come back in, unless there's - - -
PN211
THE DEPUTY PRESIDENT: Yes.
PN212
MR PARRY: There's some uncertainty at our end whether there's a POLICE1.
PN213
THE DEPUTY PRESIDENT: Yes, you're quite right, it was in the other proceedings. Good point. So the notice to initiate a bargaining period will be POLICE1.
PN214
MR PARRY: I hope it's not the best point I've got.
PN215
THE DEPUTY PRESIDENT: I very much doubt it, but anyway.
PN216
MR PARRY: So that would be POLICE1, bargaining - - -
PN217
THE DEPUTY PRESIDENT: Notice to initiate a bargaining period is POLICE1, yes.
MR PARRY: And then there is the next document is the attachment 2 which is the clarification of the industrial action proposed. Now, during the secret ballot proceedings there was discussions between the Police Federation and the Commissioner about the industrial action that was to be voted on and there was an agreed position as to the understanding of the ban reached at that time and this was a document that was tendered in those proceedings to represent that. So I would tender that.
EXHIBIT #POLICE2 CLARIFICATION OF INDUSTRIAL ACTION PROPOSED
MR PARRY: The third attachment is the outcome of the protected action ballot, I tender that.
EXHIBIT #POLICE3 OUTCOME OF THE RESULT OF THE PROTECTED ACTION BALLOT
MR PARRY: The next document, attachment 4, is a notice of intention to implement industrial action dated 13 August 2007, I tender that.
EXHIBIT #POLICE4 NOTICE OF INTENTION TO IMPLEMENT INDUSTRIAL ACTION, DATED 13/08/2007
PN221
MR PARRY: And your Honour will note that that gave notice of the intention to commence bans 1 to 11 from 26 August 2007. There is another document following that.
PN222
THE DEPUTY PRESIDENT: I'm sorry, that's POLICE4, I'm getting out of order. POLICE4 is the notice of intention to implement industrial action. There's two notices there, is it?
PN223
MR PARRY: Yes, your Honour.
PN224
THE DEPUTY PRESIDENT: Okay.
PN225
MR PARRY: Well, no, the first notice is dated 13 August and gives notice of the first set of bans.
PN226
THE DEPUTY PRESIDENT: That's POLICE4, okay.
MR PARRY: The next document is notice of the second set of bans which are to commence on 8 September, being the Saturday.
EXHIBIT #POLICE5 LETTER DATED 29/08/2007
MR PARRY: Now, not strictly following a chronological order, your Honour, the next attachment deals with a document circulated by the PFA giving further meaning or re-clarifying the bans further and your Honour will note that - well, I tender that document.
EXHIBIT #POLICE6 PFA CLARIFICATION DOCUMENT, DATED 17/08/2007
PN229
MR PARRY: And your Honour will see that you have the second page refers to the various bans and then has what this means and what is in that right hand side varies from what was on the document tendered during the secret ballot proceedings.
PN230
THE DEPUTY PRESIDENT: So it varies from the agreed position?
PN231
MR PARRY: Yes.
PN232
THE DEPUTY PRESIDENT: Right.
MR PARRY: Now, then the next document, attachment 6, is dated 28 August 2007 which again appears to vary some of the bans and I tender that document.
EXHIBIT #POLICE7 FURTHER CLARIFICATION FROM THE PFA, DATED 28/08/2007
MR PARRY: And the next document is 29 August and it is a further re-clarification of some of the bans.
EXHIBIT #POLICE8 FURTHER CLARIFICATION FROM THE PFA, DATED 29/08/2007
MR PARRY: And then there's another document dated 30 August, again re-clarifying the scope of some of the bans and I tender that.
EXHIBIT #POLICE9 CLARIFICATION DOCUMENT FROM THE PFA, DATED 30/08/2007
PN236
MR PARRY: Now, your Honour, there is then the submissions, if I could take your Honour to our outline of submissions.
PN237
THE DEPUTY PRESIDENT: Right.
PN238
MR PARRY: Does your Honour have a practice of marking outlines of submissions with exhibit numbers?
PN239
THE DEPUTY PRESIDENT: Yes, that would be useful.
MR PARRY: If your Honour pleases, I then so tender our outline of submissions.
EXHIBIT #POLICE10 OUTLINE OF SUBMISSIONS
PN241
MR PARRY: Now, obviously your Honour has read these. Perhaps I'll just go through and give an overview of what we say the relevant approach is. In the first paragraph referred to the agreements and the Police Regulations Act. I don't hand those up to your Honour but I indicate that we can so provide them. On the second page it's said that there has been a bargaining period initiated. I've told your Honour about the protected action ballot. In paragraph 5 of the outline there is reference to an email sent to members informing them of the Chief Commissioner's obligations under the Workplace Relations Act to dock pay. I will tender a copy of that email at some future stage, your Honour.
PN242
Then there was a ballot and your Honour will note that there was a fairly high proportion of voters and there was a significant proportion in favour of the proposed industrial action. There is then reference to the notices which I have tendered. Now, your Honour, the outline of submissions goes on and sets out section 430 which I won't repeat. The outline goes on to deal with the legislative background and your Honour would be familiar with section 170MW(3) of the previous Act which dealt with circumstances and there are some, obviously, a number of parallels between the previous Act and the present. There are significant differences which I'll take your Honour to shortly. But in paragraph 16, as we say, your Honour needs to be satisfied and there is a degree of subjectivity or value judgment, although there does need to be an evidentiary base.
PN243
The concept of is threatening to, is to be given its ordinary meaning, being the source - of giving an indication of being the source or cause of a relevant danger. There is then reference to the ordinary meaning of the word welfare, your Honour, and that's been dealt with by Full Benches of this Commission and Senior Deputy Presidents and the general approach is to apply, as is said therein -
PN244
A state of bearing well or wellbeing, happiness, wellbeing, good health or fortune of a person, community -
PN245
et cetera. Now, over the page, as has been made clear, there is no requirement to find a significant threat. So it doesn't have to be a significant threat. One shouldn't mix up the terms of the legislation, or that the threat to be an important part of the population. Now, the final two dot points of course are relevant to part of what my learned friend has already submitted, that is, if we spend a whole lot more money or conduct our operations differently, then we might be able to ameliorate some of the effects of this. That sort of argument is not uncommon in these cases and it was indeed run in the South Australian and CEPU case and it was also run in the ambulance case that was of some significance a couple of years ago.
PN246
Of course the respondents often stand up and say, well, if you spend a whole lot of extra resources you can ameliorate the effect of the threat to endanger. That's not an answer. The answer is whether the circumstance objectively exists. Also my learned friend in his submissions talked about what was intended. He said we don't intend to endanger the public welfare or threaten to endanger the public welfare. There's no requirement there be intent. Intent is not a part of this. It is simply whether the circumstance exists. For the assistance of your Honour we've set out some of the cases that have dealt with broadly analogous circumstances, bans on red light cameras and these cases that we've referred to therein hopefully, your Honour, are in a folder that your Honour will have access to and there is the hospital bypass bans of the ambulance unions, bans on gas maintenance equipment and so forth.
PN247
So that's a sort of a broad overview of the preceding legislative scheme. Now, what's changed with section 430 is that the legislative scheme now provides that the Commission can terminate or suspend not only when industrial action is being taken but when it is threatened, impending or probable. So the Commission is now when faced with an application such as this, required to consider whether if the industrial action that is threatened, impending or probable is taken, whether in that circumstance it would threaten to endanger the life, the personal safety or health or the welfare of the population or part of it. So it doesn't require that there be as of today that the existence of the threat of endangerment, we are looking when the bans are implemented. Now, we will of course - well, I deal with that shortly.
PN248
THE DEPUTY PRESIDENT: Just one issue if I could, do I need to look at this issue of the population or part of it? I vaguely recall something in the Coal & Allied definitional approach to that. Do I define the population or part of it? Come back to it if you need to. It's just something that I noticed reading. You drew my attention to the Coal & Allied observations of Giudice J and threatening to for example.
PN249
MR PARRY: Yes.
PN250
THE DEPUTY PRESIDENT: And he goes on then to deal with the population and a few other aspects and I'm just wondering if that's relevant here. I suppose it is.
PN251
MR PARRY: Well, it will be relevant but of course the Coal & Allied circumstance dealt with, in large part, with the population of the Hunter Valley and debates about the impact of the industrial action on that part of the economy.
PN252
THE DEPUTY PRESIDENT: Yes.
PN253
MR PARRY: And if we could remember I think, your Honour, the best I recall that was a case about significant damage, economic damage.
PN254
THE DEPUTY PRESIDENT: Yes.
PN255
MR PARRY: I don't think that was a concerned that the threat to the welfare, threat of endangerment to welfare. But your Honour, I'll follow that. But ultimately our case here will be that we're really dealing with those parts of the Victorian population that are either involved in or will be involved in crime, traffic matters and will be affected by crime or traffic accidents and that with respect, is just about everybody is at risk of that.
PN256
THE DEPUTY PRESIDENT: Yes.
PN257
MR PARRY: So in a way our case doesn't involve on picking out a small part of the population, just dealing with those that are at risk broadly.
PN258
THE DEPUTY PRESIDENT: No. For what it's worth, at page 33 of the case, I mean you don't need to go to it, it just says:
PN259
A collective welfare is in peril or danger.
PN260
It seems to be what's meant.
PN261
MR PARRY: Yes.
PN262
THE DEPUTY PRESIDENT: Is one interpretation of what's said there and that seems to be what you've just said in slightly different words.
PN263
MR PARRY: Yes. Well, I prefer the President's words than mine, your Honour.
PN264
THE DEPUTY PRESIDENT: I generally do as well.
PN265
MR PARRY: Now, the legislative scheme now requires your Honour to look to the future and ask whether something would threaten and we've put in authorities in paragraph 20 about what would, or how would should be approached in a legislative or statutory interpretation manner and perhaps it's more likely than not that something will occur. We don't have to prove that these threats of endangerment are certain but just they're likely and that will fit with the legislative scheme. Your Honour, the case for termination, as paragraph 21 says, we've set out some of the requirements. That is, industrial action is being taken or is threatened, impending or probable. Well, I'm not sure how contested that would be given that we have notices, we have various public pronouncements.
PN266
It appears rather certain that there will be industrial action taken and the most significant industrial action will be taken this Saturday and given the overwhelming vote in favour and giving the high return, it would appear rather likely that it will be a very broad implementation of these bans. As for the second requirement that industrial action is adversely affecting or would affect the employer, well, the Victorian Police do have requirements and provide services and it's our position that the implementation of the full set of bans will restrict, impact and curtail a number of these essential services and that would be an adverse effect on the employer.
PN267
Finally, obviously probably the substantial part of this application, that the industrial action would threaten to endanger the life,
the personal safety or health or the welfare of the population or a part of it. Now, it is the nature of a police force to prevent
crime. They investigate crimes that do occur, bring offenders before the legal system and generally keep public order. In that
context it's inevitable that bans that delay or restrict such functions will have adverse effects at least on the welfare of the
population as so defined by cases and that
impact - - -
PN268
THE DEPUTY PRESIDENT: So welfare is the main one, is it, or do you rely on all of them?
PN269
MR PARRY: I rely on all of them but welfare is the main one because in some circumstances there will be an increased threat of endangerment to people on roads, but in other cases people in the criminal justice system, we're looking at the welfare of those that have been charged, the welfare of witnesses and so forth. Now, we do make the point that there are no separate rules or tests here for employees such as police officers, ambulance officers or those providing transport services to the public. It is simply the issue is whether the implementation of the bans would have the - or creates the circumstance and we don't have to show that each and every ban has that effect.
PN270
It's sufficient even if one of the bans when implemented would threaten to endanger the welfare of some Victorians. That would be our case at its lowest.
PN271
THE DEPUTY PRESIDENT: Yes.
PN272
MR PARRY: Now, we've attempted to summarise - - -
PN273
THE DEPUTY PRESIDENT: Or it's a collective threat, to use the words of Giudice J.
PN274
MR PARRY: That's so, your Honour, and overall putting it all together and indeed there will be - your Honour will hear evidence about one aspect, for example, voluntary duties and other aspects about not working two up. Clearly there's going to be an overlap and an exacerbation of the effects by the bans operating together and that's the intent but it's the effect that we're concerned with. We've set out some of the bans, the main bans that we rely on and we've attempted to just put a dot point next to them which comes from the witness statements, your Honour, that we've provided to the Commission.
PN275
We do make the point, I won't go through each of those, your Honour will hear evidence about them, but some of these impacts will be immediate, others will manifest themselves over time. But the position is that the advice we have and the position we would say the Commission should accept is that the industrial action will continue indefinitely. Once it starts it will continue.
PN276
THE DEPUTY PRESIDENT: So there's no time limit mentioned?
PN277
MR PARRY: There's no time limit. Your Honour is being asked to consider a position where we have notice of 22 bans that are to commence fully this Saturday and continue indefinitely and we'll produce evidence from four experienced and high ranking police personnel and an expert witness, your Honour. So that's our broad position. Now, I would propose calling now, subject to anything your Honour wants - - -
PN278
THE DEPUTY PRESIDENT: No, no, thank you very much for that outline,
Mr Parry.
PN279
MR PARRY: Your Honour, before putting Mr Ashby in the witness box, we have provided a copy of his statement.
PN280
THE DEPUTY PRESIDENT: I have it, yes.
PN281
MR PARRY: Before marking that, your Honour, I've been instructed this morning that we would want to make an application that evidence regarding paragraphs 25, 26 and 27 be dealt with in-confidence and to make that application I would want to make that application consistent with what is set out in section 839 of the Act. Your Honour, I would seek to make that application in closed court.
PN282
THE DEPUTY PRESIDENT: Right, all right. Unless there's any objection to that I propose to close the court now. No objection? Close the court. If there is anybody in the room apart from those associated with either side in this case, thank you.
CONTINUED IN TRANSCRIPT IN CONFIDENCE
CONTINUED FROM TRANSCRIPT IN CONFIDENCE
PN355
THE DEPUTY PRESIDENT: So you propose now to call your first witness, do you?
PN356
MR PARRY: I do, your Honour.
PN357
THE DEPUTY PRESIDENT: While that's being done I'll take a short break.
<SHORT ADJOURNMENT [11.19AM]
<RESUMED [11.30AM]
PN358
THE DEPUTY PRESIDENT: Right, we're in open court again.
MR PARRY: If your Honour pleases. I call Assistant Commissioner Noel Ashby.
<NOEL ASHBY, SWORN [11.31AM]
<EXAMINATION-IN-CHIEF BY MR PARRY
PN360
MR PARRY: Assistant Commissioner, you hold the rank of Assistant Commissioner with the Victorian Police?---That's correct.
PN361
And the address of the Victorian Police is 637 Flinders Street, Melbourne?---Yes, that's the police headquarters.
PN362
And you've provided or prepared a witness statement for these proceedings?
---Yes, I have.
PN363
Which has a number of attachments. Do you have a copy of that statement before you?---Yes, I do.
PN364
Are the contents of that true and correct?---Yes, they are.
Subject to the orders that your Honour made, I tender that statement.
EXHIBIT #POLICE11 STATEMENT OF NOEL ASHBY, SUBJECT TO PARAGRAPHS 25, 26 AND 27 BEING THE SUBJECT OF CONFIDENTIALITY DIRECTIONS
PN366
MR PARRY: If the Commission pleases. Assistant Commissioner, there has been tendered in these proceedings a number of documents which go through the clarification of the bans. If I could provide to the Assistant Commissioner a copy of those, I want to take the Assistant Commissioner through the bans and have some of them explained to your Honour.
PN367
THE DEPUTY PRESIDENT: The clarifications, yes.
PN368
MR PARRY: Yes. Now, you've been handed the application and then attached to the application is a notice to initiate a bargaining period which you don't need to worry about and following that is a document which is exhibit POLICE2 which has application for order for protected action ballot, 17 July 2007?---Clarification of industrial action is it?
PN369
Yes, that's right. Now, dealing with number 4, the banning of the preparation provision of statistical information of the Victorian Police Force, force management and government, on the right it has understanding of ban and it refers to division intelligence management units. What statistics are prepared by DIMUs?---Divisional intelligence management units provide a variety of statistics and data that devolves principally around crime occurrences, emerging crime trends, public disorder matters in and around the division concerned and bearing in mind within the five regions, there's 23 divisions across the state, and it also provides traffic analysis data.
**** NOEL ASHBY XN MR PARRY
PN370
Right?---So they address public disorder, crime and emerging road policing or traffic issues.
PN371
And what are regional information management units and what statistics do they prepare?---The regions, as I said earlier, there are five regions within the state. There is an overarching regional information management unit that really that binds together the whole of regional response and makes the connection with the whole of the organisation corporately through the Regional Assistant Commissioner, whereas divisional level they are managed by - a division is managed by a superintendent who are responsible for the service delivery in that division particularly.
PN372
All right. And it says that these statistics prepared for them are to be banned for use by tasking committees in regions and departments. What are tasking committees?---They're tasking and coordination committees and they're established at PSA level or police service area level which really is an area defined along local government areas and they provide all the targeting for police operational activity at police service area level. So it is those committees that target, provide the information and intelligence to target our operational police activity both in the prevention of crime and to reduce and detect crime and to improve public confidence in public occurrence and public disorders, so reduce public disorder, have the police at the right place at the right time and also to improve the road policing response right across the state.
PN373
How often broadly would such tasking committees meet?---They vary according to particular local management areas but they certainly meet weekly as a general rule and they are constantly updating the operation of police that will be performing a duty in the following shifts and days with their latest up to date activity in terms of crime, traffic and public disorder.
PN374
All right. Now, if we can move from that document, the clarification of industrial action, the next document is a protected action ballot which we could move on past. The next two documents are notices to implement industrial action which we can also move past and then we get to a document of 17 August 2007 with It's Time Government Felt The Pinch at the top?---Yes.
PN375
And the second page of that deals with what's banned and it has down to
number 4 -
**** NOEL ASHBY XN MR PARRY
PN376
Banning of preparation provision of statistical information, what this means.
PN377
And it then has the various bans that you've just gone to and it's also added in:
PN378
Members should not complete statistical data, running sheets, official diaries or area forms.
PN379
Now, what are running sheets?---Running sheets are a form kept by patrol units in the conduct of mobile and foot patrols, whether they be plain clothes or uniform, and it is a contemporaneous record of what they do during the course of that shift and it encompasses who they talk to, areas that they have patrolled, calls they have received, arrests they may make and infringement notices for a whole range of things that they may issue. It's a contemporaneous word picture if you like of the activity on that shift, your Honour.
PN380
And the second - I'm sorry. There's also a reference there to official diaries?
---Yes.
PN381
What are they?---Official diaries are diaries that are kept by specialist policing units, particularly criminal investigation units, and other members of the force at inspector and above rank. It is again a contemporaneous record of what occurs at the time of their duty, bearing in mind criminal investigation units in the conduct of their duties do not prepare running sheets as uniform police do. So it provides a contemporaneous record of what their activities are in the course of one of their shifts.
PN382
Now, the next document is area forms. Perhaps if I could hand you this document. I'll have a copy of copies, one for the Commission and one for the Assistant Commissioner. In fact I have very many copies. Now, what have I just handed you, Assistant Commissioner?---This is an activity return and enforcement analysis form which is a snapshot as opposed to a contemporaneous record that records a blow by blow description if you like of the activities of members while they are on - while they are performing a particular mobile duty or foot patrol duty.
PN383
Is that an area form?---This is an area form, yes.
I tender that.
EXHIBIT #POLICE 12 AREA FORM
**** NOEL ASHBY XN MR PARRY
PN385
MR PARRY: Now, Assistant Commissioner, you were explaining to the Commission when this was filled in?---These are filled in at the completion of a mobile patrol shift and they are then provided with the running sheet to supervisors and subsequently they are provided to divisional intelligence management units and provided for a broad range of statistical data that is kept as to the activities of our people.
PN386
I'm sorry, are they filled in how often each day?---They are filled at completion of shift, so in the last half an hour of someone's rostered duties. This is one of the last things that a patrol unit will do.
PN387
Right. Perhaps if I could return to the clarification documents and move onto the next - - - ?---If I might say just to add one thing with the area form, there is a number of ways people actually fill them out. Some do them contemporaneously with their running sheet, others do them at the end of the shift and that may well depend on the demands on their time at a given point in time. But there is a requirement at the end of shift that these forms are submitted.
PN388
Right. And if I could go back, there is a document, attachment 6, which is a re-clarification of frequently asked questions bans advice?---Frequently asked questions, yes, I have that, thank you.
PN389
And there's reference to I think the first part of the - - -
PN390
THE DEPUTY PRESIDENT: That's POLICE7, is it?
PN391
MR PARRY: Yes, your Honour, exhibit POLICE7.
PN392
THE DEPUTY PRESIDENT: Yes.
PN393
MR PARRY: And dealing with ban, the first part remains the same and then thee is:
PN394
Do I complete the LEAP forms, TIS or CJEP?
PN395
If I could hand to the Assistant Commissioner a document headed Incident Field Report and I'll hand one up to your Honour as well. Now, Assistant Commissioner, what have I just handed you?---This is a printed hard copy of essentially what is our LEAP reports that are filled out in response to a range of police activity ranging from reported crime ranging to family violence issues and there's a range of occasions when these forms are completed. They are officially the crime report if you like of an incident that occurs.
**** NOEL ASHBY XN MR PARRY
PN396
All right. I tender that document, your Honour.
EXHIBIT #POLICE13 INCIDENT FILED REPORT
PN397
MR PARRY: And I think the first page refers to various general matters. The second page has Offence Against a Person. I take it that's filled in when there has been an offence against a person?---Yes.
PN398
The officer would fill that in and attach it to the front part of the form?---Yes, and commonly related with violent related offences, assaults, robberies, things of that nature.
PN399
Right. And the form has the names of the victim?---Yes.
PN400
And their addresses?---Yes.
PN401
And then there's a number of boxes to be filled in below that?---Yes.
PN402
And what are those boxes below that used for?---They indicate the type of - the way a particular crime was committed or alleged to have been committed and it provides for a whole range of, if you like, individual data specific to that particular crime.
PN403
And where does that data go?---That data, firstly the reported crime is recorded both divisionally, regionally and centrally. The data in the many boxes is distributed again to each regional and divisional information intelligence units. It is also centrally provided to our intelligence management department, so particular profiles can be built around occurrences to essentially link crimes to one another.
PN404
Now, the ban in exhibit POLICE7 refers to completing only the information in the LEAP forms that is non statistical in nature.
PN405
THE DEPUTY PRESIDENT: This is a LEAP form, is it?
PN406
MR PARRY: That is a LEAP form, yes, your Honour.
PN407
Now, what do you understand that to be, Assistant Commissioner?---Well, I understand that to be simply to complete the initial data and the completion of the specific data about how crimes were particularly committed on a given occasion. So those boxes on the second page in offence against person would not be completed.
**** NOEL ASHBY XN MR PARRY
PN408
THE DEPUTY PRESIDENT: So you say they're banned, okay.
PN409
MR PARRY: And for example, the following document, the third document, an offence against property or statute, again that would relate, as you would understand it, to the bottom number of boxes on all this?---Yes, and the bottom number of boxes in the offence against property or statute is again the same.
PN410
THE DEPUTY PRESIDENT: So you say that's banned?---Yes, I do, your Honour.
PN411
MR PARRY: And the impact of that information not going through?---That information is absolutely critical to casting and coordination, the building of intelligence files and to ongoing operational police activity to address emerging issues and to enable us to predict crime and disorder patterns.
PN412
Now, to return exhibit POLICE7, it has in that do I complete LEAP forms, TIS, what are TIS?---That's the traffic information system. That is an IT based system where members are asked at the conclusion of a traffic incident or a motor vehicle crash particularly to enter the data electronically onto the TIS system, so the traffic information system, and that information is then again used locally. It is also provided more broadly to the partners in road safety, particularly VicRoads and Transport Accident Commission for analysis and to work out responses within the various accountabilities of those agencies. In the police case that's the enforcement activity that we will engage in. In the Transport Accident Commission case that is to design ongoing public information and education strategies such as some of the commercials we see and in VicRoads that's infrastructure development.
PN413
And what statistical information is on that, TIS?---Well, it has a range of details and information that is provided relevant to a particular crash on a given occasion and those crashes can be all classes of road trauma from fatal crashes to simple reported non injury collisions and everything within them.
PN414
And the consequence of not filling in that statistical information?---Well, it's absolutely critical in terms of developing counter measures from the policing perspective to respond to road safety. It's critical from VicRoads perspective so they can design infrastructure changes and development and it's also critical to TAC to design the information and education programs in an ongoing sense for the public, for pubic dissemination.
**** NOEL ASHBY XN MR PARRY
PN415
Now, exhibit POLICE7 also refers to CJEP, what are CJEP?---It's the criminal justice enhancement program. The criminal justice enhancement program is an IT program that manages the handling of people in custody at a given time and people that are brought into police facilities for questioning for a range of alleged breaches of the law.
PN416
What is purely statistical on those forms?---The particular importance of the CJEP is not only the management of the person who may be in custody at a given point in time but it also involves around their health and welfare, particularly in respect to medications that may or may not be taken at a given point in time or be needed and it also is a highly accountable mechanism that ensures a person is appropriately checked while in custody by supervisors and senior managers to ensure for their welfare in those circumstances.
PN417
All right. Now, finally if I could take you with regard to this document I think it's to the third last page of the bundle I've handed
up with application for an order?
---Is that attachment 8 documentation - - -
PN418
It is, yes.
PN419
THE DEPUTY PRESIDENT: Police exhibit 9, exhibit POLICE9.
PN420
MR PARRY: Vehicle log books?---Yes.
PN421
Are they considered statistical information?---They could be. They are - a vehicle log book is a book that exists for operational police vehicles that advises of a particular vehicle in possession or custody of a particular police member at a given point in time and encompasses the amount of kilometres travelled for the purposes for they're using the police vehicle on that occasion.
PN422
All right. Well, I'll leave that document now. Perhaps if I could go back to your statement, Assistant Commissioner, you have of the impact of ban 14 on road safety and you commence at paragraph 18. You have attached to your statement NA4 a copy of the Auditor-General's report?---Yes.
PN423
Now, that Auditor-General's report, are you familiar with it?---I am, yes.
PN424
And if I could take you to a couple of parts of it and ask you for your comment on it, perhaps in the executive summary. The executive summary is about - there's a part headed Executed Summary, if I could go to the first page of that, I think it's page 4?---Yes.
**** NOEL ASHBY XN MR PARRY
PN425
And if we move down on that page it has just above 1.3, it has a paragraph starting:
PN426
Road crashes are multi causal and many initiatives are underway -
PN427
I'm paraphrasing it quickly -
PN428
The greatest reductions in trauma have been in the lowest speed zones which are the most intensively enforced.
PN429
?---Yes.
PN430
There has also been significant reductions in pedestrian trauma.
PN431
?---Yes.
PN432
And finally ending up with these factors suggested, improved compliance with speed limits has a major contributor to trauma reductions.
PN433
?---Yes.
PN434
What do you say to that?---Well, there's absolutely no doubt at all that the reduction in speed across the whole network has significantly impacted on all classes of road trauma.
PN435
And if I could take you to one other part, page 29.
PN436
THE DEPUTY PRESIDENT: Sorry, this is NA3, is it?
PN437
MR PARRY: I'm sorry, your Honour, yes. NA4.
PN438
THE DEPUTY PRESIDENT: NA4?
PN439
MR PARRY: Yes.
PN440
THE DEPUTY PRESIDENT: All right, I have it.
PN441
MR PARRY: Your Honour, I've taken the Assistant Commissioner to part of the executive summary on page 4.
**** NOEL ASHBY XN MR PARRY
PN442
THE DEPUTY PRESIDENT: 1.3 was it
PN443
MR PARRY: Above 1.3.
PN444
THE DEPUTY PRESIDENT: Above, right.
PN445
MR PARRY: Yes, to that paragraph.
PN446
THE DEPUTY PRESIDENT: Right, thanks.
PN447
MR PARRY: And I was going to take also the Assistant Commissioner to page 49, are fewer drivers speeding. Do you have page 29,
Assistant Commissioner?
---I do. Yes, I do.
PN448
There's a heading Are Fewer Drivers Speeding?---Yes.
PN449
And there's reference there to specific deterrence?---Yes.
PN450
And general deterrence?---Yes.
PN451
As to specific deterrence, in your experience what do you say to that aspect of road user behaviour?---Specific deterrence is absolutely critical to reducing speed and therefore all classes of road trauma and it targets individual people who are particularly more likely to engage in high risk behaviour.
PN452
And general deterrence?---It's a more broader theme that the general thought that a motorist will be detected speeding will have a deterrent effect on their likelihood to just push the speed a little bit higher and in those circumstances overall reduce the speed across the whole of the road network.
PN453
Now, your Honour, I was going to ask a question at paragraph 25 in accordance with your orders. I would seek that that be asked in closed court.
THE DEPUTY PRESIDENT: All right. We'll now move into closed court. So if there's any person in the room apart from those appearing with one of the parties if they could please leave for a short period. Thank you very much.
CONTINUED IN TRANSCRIPT IN CONFIDENCE
CONTINUED FROM TRANSCRIPT IN CONFIDENCE
<NOEL ASHBY, ON FORMER OATH [12.07PM]
<CROSS-EXAMINATION BY MR FRIEND, CONTINUING
PN501
THE DEPUTY PRESIDENT: No, no, go ahead. We're now in open court.
PN502
MR FRIEND: Mr Ashby, you talked about tasking in your oral evidence earlier this morning?---Tasking and coordination committee, yes.
PN503
Yes, and the tasking is, I think as you described it, sending particular patrols to particular areas?---It's targeting police resources to the areas of highest risk at a given point in time where they'll make the most difference to improve public safety.
PN504
So that might mean a particular shopping centre or - - - ?---It will certainly involve shopping centres and particularly points within shopping centres as opposed to shopping centre of itself.
PN505
So in order to do tasking properly you've got to identify those areas, where they are? You've got to know where those hot spots are, black spots, I think you called them?---Yes, hot spots, or black spots, yes. We'll go either one.
PN506
Yes, and you said that the area document was critical for tasking?---It is.
PN507
Have you still got a copy in front of you?---I do.
PN508
These are the ones that - - -
PN509
THE DEPUTY PRESIDENT: Twelve.
PN510
MR FRIEND: Yes, your Honour, 12.
PN511
These are the ones that are called Tattslotto balls, I think, aren't they?---Yes, they are called Tattslotto balls, loosely via the members.
PN512
Now, in relation to these, can you show me anywhere where it identifies where the black spot might be on this document?---No, but this document should not be read in isolation of the other information that is provided. If we read any particular document in isolation, then the essential linkages won't be made with other documents - - -
PN513
So in terms of this document it's not going to help to identify the black spots at all?---This document is part of the process that helps us effectively target out people.
**** NOEL ASHBY XXN MR FRIEND
PN514
It's not going to help you identify the black spots at all?---Well, we'd be diminished without it.
PN515
It's not going to help you identify the black spots at all, is that correct?---Yes, but we would be diminished without it. It's not a - - -
PN516
I understand your explanation, Mr Ashby, but I'm just trying to get to that point because - - - ?---You haven't asked me about it.
PN517
It's fairly obvious. It doesn't?---Of itself, no.
PN518
Thank you. The LEAP report.
PN519
THE DEPUTY PRESIDENT: Police 13.
PN520
MR FRIEND: Police 13. My instructions are that there's more to this document. This is on a computer generated set of forms now, isn't it?---Yes, it is.
PN521
My instructions are that there's more than this to a LEAP form. Do you disagree with that?---Well, this is a basic report of crime document as we know it. There can be more when people are processed for offences, et cetera. So there can be other additions, yes.
PN522
My instructions are that none of the material on this form would be regarded as statistical. So this would all be completed?---Well, that's not the message that we are receiving and without that it's quite critical, those boxes - - -
PN523
Well, this ban's been in place since - I think it's 30 August?---Mm.
PN524
So on any view, even on your view, some of these forms are being completed, correct?---Some have, and some haven't, yes.
PN525
Have you seen completed LEAP forms since the bans started?---No, I haven't.
PN526
You haven't looked at any of them?---No, but what I've done - - -
PN527
So you can't say whether or not this material is being completed, can you?---I can say on occasions it's not and on other occasions it is, which is precisely - - -
**** NOEL ASHBY XXN MR FRIEND
PN528
Mr Ashby, you haven't seen one?---It doesn't matter. I've received feedback. In fact, since the commencement of this ban I've actually had some assessments made generally in terms of compliance. From my perspective I had concerns about ban 4 at the outset, which is why I've had some work done around that particular issue.
PN529
And so you've had some feedback about the level of completion of leave forms?
---On the basis that some are being completed and some aren't.
PN530
Yes, and what's the sort of number that aren't being completed?---I don't know at this stage.
PN531
Well, is it one or two or one or two hundred?---No. There are hundreds of reported crimes a day - - -
PN532
How many are not being completed?---I'm unable to say.
PN533
You're unable to say?---I'm unable to say but other than the fact that any failure to complete some of this data has a significant - - -
PN534
Mr Ashby, you're going on to something else. What we're trying to get at is the number of these you say are not being completed and you can't say anything to his Honour about that, can you?---No, I can't say as to precisely numbers, other than what I said earlier, that there are a number not being completed.
PN535
And you don't know what that number is, whether it's insignificant - - - ?---No, I wouldn't say it's insignificant.
PN536
Well, how do you know, you've got no - - - ?---We're talking hundreds of
crimes - well, I'm saying on the advice that I've received from my areas, that's what I've been advised and it takes a little time
- - -
PN537
Mr Ashby, just - - -
PN538
THE DEPUTY PRESIDENT: Hang on. How we'll proceed is, the question will be asked by Mr Friend and Assistant Commissioner Ashby - sorry, it is Assistant Commissioner?---Yes, your Honour.
PN539
Assistant Commissioner will answer. Please proceed.
**** NOEL ASHBY XXN MR FRIEND
PN540
MR FRIEND: I think you said the districts have reported on this, is that right, on the compliance LEAP forms?---Sorry?
PN541
Just two seconds ago. Your source of information as to LEAP forms not being completed. What's that?---It's from other senior people in the organisation who manage the regions in terms of their making inquiries with their people and also in my own area, which is Transit Safety, as to the level of compliance.
PN542
And has everyone reported the same thing or have they reported different things?
---There's been a differing reporting that there are levels of information not being completed.
PN543
And you can't say how many LEAP forms are not being completed?---I can't say how many.
PN544
What's done with a LEAP form when it's completed?---It is centrally provided to the organisation, so statistical data in respect to reported crimes can be kept and retained and reported on. It is centrally reported and provided to our intelligence department, so State strategies can be developed, and information is also provided locally in the framework that I outlined earlier that allows the development again of localised strategies.
PN545
So this is done by drawing information from a computer record of the LEAP form, is that correct?---Largely, yes, but some of these can be filled out, if these aren't available, manually and quite often are.
PN546
Yes, and when, in regard to that, when is the first use made of the LEAP forms?
---I beg your pardon?
PN547
When is the first use made of them?---Well, at the time a crime is reported.
PN548
Yes, sorry. In terms of statistical purposes?---It depends how it fits in with existing information and intelligence holdings at that given point in time. So if there's a link made in terms of crime in a particular area, then it is obviously used much earlier.
PN549
Yes, and - - - ?---To fit into that pattern of behaviour, if you like.
PN550
How does that occur?---That occurs principally in the first instance at local level and it's the local level that informs tasking and coordination of our activities.
**** NOEL ASHBY XXN MR FRIEND
PN551
So it's the local level that says, look, there's an issue here, and then the LEAP form is used in relation to - - - ?---Generally it is at local level or at the highest level at divisional level where trends are particularly monitored.
PN552
Yes. It would be fair to say that patrol officers are familiar with their area of responsibility?---As a general rule, yes.
PN553
And intensively patrol the problem areas?---Yes.
PN554
And they know better generally where they should be going than anyone else?
---Yes, yes, I agree with that.
PN555
So the LEAP form can be used to back that up, to reinforce it?---It offers credible evidence in an evidence based environment about developments as they are emerging.
PN556
Now, there'll be some evidence given by a Sergeant John Harper, do you know him, from Oakleigh?---No, I don't know John.
PN557
He says that in the last two years since this new system was introduced he's had no black spot data given to him. Does that surprise you?---Yes, it does.
PN558
He says that he can't get crime maps although he's requested them?---Yes, it does.
PN559
He says that he relies on the local knowledge. That's what you'd expect, isn't it?
---You would expect local knowledge to be an integral part of police activity, absolutely no doubt, but there is a qualification
needed that there is nothing as comprehensive as evidence based tasking that has contributed to our reduced crime rate.
PN560
Now, in terms of what Sergeant Harper's going to say, if that's true generally, then the effectiveness of the new system has to be
called into question, doesn't it?
---There's 327 police stations in the State. Perhaps Oakleigh has a localised system, but I don't believe that's a general part
of the operating practice.
PN561
Mr Ashby, can I ask the question again because my questions aren't an invitation to make a speech about something. They're an invitation to give an answer to the direct question. If what Sergeant Harper says is true, then the LEAP system isn't really working, is it?---If what he says is true - - -
**** NOEL ASHBY XXN MR FRIEND
PN562
Generally, generally?---If that's what he says, yes.
PN563
Now, if you look at paragraph 8 of your statement, please, you talk about the strategic plan?---Yes.
PN564
And one of the areas in the strategic plan being "intelligent policing" and then you describe what that is. "Intelligent policing is aimed at developing an organisational culture and strategic capability to identify merging issues and opportunities." And you then say it has something else, "It also aims to introduce integrated systems to acquire, store, use and secure information"?---Yes.
PN565
And then you explain the purpose of that?---Mm.
PN566
"The purpose of those systems is to support the collection, collation and dissemination of statistics and data that's essential to determine appropriate resource allocations to areas of need"?---Mm.
PN567
Okay? Now, you've set out there - you've said intelligent policing is an important part of the way ahead?---Yes.
PN568
And you've set out there what intelligent policing is, have you?---Yes.
PN569
That's a full description of intelligent policing?---In the context of The Way Ahead, which is a strategic planning document.
PN570
Can you turn to your first attachment which is The Way Ahead?---Yes.
PN571
Intelligent policing is dealt with on page 11?---Yes, I have it here, yes.
PN572
That talks about employing additional experts, crime analysts, crime scene investigators?---Yes.
PN573
Forensic officers to improve the solution rate of crimes?---Yes.
PN574
That's a bit broader than what we were talking about before, isn't it?---Yes.
PN575
"Build and equip additional forensic facilities"?---Yes.
PN576
That's broader too?---Yes.
**** NOEL ASHBY XXN MR FRIEND
PN577
"Enhance our information technology infrastructure to a real time data collection." That's perhaps what you were talking about?---Yes.
PN578
"Introduce integrate information systems to store, use and secure information"?
---Yes.
PN579
Now, I suggest to you that if you read all of that intelligent policing is about a lot more than what you put in paragraph 9 of your statement. Would you agree with that?---At the organisational level, yes.
PN580
And that in fact in paragraph 9 what you've really done is exaggerated the matters you're talking about there because that helps the case, correct?---No, I reject that.
PN581
Now, in paragraph - I think I said paragraph 9 then, and I meant paragraph 8?---I think you did.
PN582
For the purpose of the transcript, I apologise, Mr Ashby. If we go on to paragraph 9?---Yes.
PN583
You make the statement that there's been a reduction in the crime rate?---Yes.
PN584
And you then say, "A significant factor in achieving the objectives relates directly to the gathering and analysis of statistical and related data"?---Yes.
PN585
How do you draw the connection between those two statements?---The - on the basis largely that the way we have gone about coordinating our activities is a clear indication of the success of targeting to high risk locations and putting our resources in places at the right time to not only detect crime, but prevent crime. So it's based around, again, the ethic of having our people in the right place at the right time.
PN586
Well, if I have understood what you've just said, Mr Ashby, you said it's because that's what we intend. How do you - have you done any statistical studies to show the connection, is there any information apart from what you think?---No, not that I'm aware of at the moment that I can draw other than the fact that there has been a reduction once the clear tone of the organisation was set and tasking coordination committees were developed and removed to a more knowledge management footing. These were the outcomes that we saw.
**** NOEL ASHBY XXN MR FRIEND
PN587
And that will depend upon the success of the tasking operation itself, of
course - - - ?---It depends on a range of things. It will depend on a range of things including the effectiveness of the tasking
and coordination.
PN588
Can I ask you about the examples you've given in paragraph 15?---Yes.
PN589
Can you tell me the date approximately of the first one, 15(a)?---Each of these examples are in the last 12 month period.
PN590
Can you be more precise than that?---No, I can't.
PN591
How did you get these examples?---We - I spoke with people in some operational areas and asked for examples of work they had performed and how they went about performing that work.
PN592
Well, in respect to (a), who gave you that one, who gave you that information?
---That information was given to me by the people in the EB Liaison Team, who I asked to contact a range of people.
PN593
Who did you ask them to contact?---Superintendents at divisional level, both including Transit Safety Division, which reports to me, and also other commissioned officers in the metropolitan area.
PN594
So can you give us, apart from what happened in the last 12 months, can you tell us the geographical location of this incident?---I was reluctant to release particular locations.
PN595
Well, you see the difficulty for us, Mr Ashby, is that we can't find out about this ourselves?---No, okay. Look, I - - -
PN596
Because we don't know?---In those circumstances I will be happy to take some advice in respect of that because I don't want to compromise anything ongoing.
PN597
Yes, I understand that and I don't want to be popping in and out of confidential hearing, but maybe a better way to handle that, your Honour, would be that I won't force the issue at this moment but my learned friend may be able to give the information to me rather than having it in open court.
PN598
THE DEPUTY PRESIDENT: All right. Would that be acceptable?
---Absolutely, your Honour, absolutely.
**** NOEL ASHBY XXN MR FRIEND
PN599
MR FRIEND: By that I mean then my clients would make their own inquiries about these matters?---Absolutely, yes, I understand.
PN600
THE DEPUTY PRESIDENT: Well, that could be done at the cessation of your evidence, perhaps?---Yes, it can, your Honour.
PN601
A list and handed to you?---Yes.
PN602
MR FRIEND: Yes. The sooner it can be done - well, your Honour, I won't be able to cross-examine Mr Ashby about it just by knowing the dates and places.
PN603
THE DEPUTY PRESIDENT: Indeed.
PN604
MR FRIEND: We'll have to get some information about that which we may or may not want to call evidence in regard to and then we'll take it from there, but the sooner we get it, the better, obviously.
PN605
THE DEPUTY PRESIDENT: Well, at the cessation of evidence, perhaps Assistant Commissioner Ashby can compile a list and hand it to your instructor, unless there's a difficulty with that. Yes, we'll proceed on that basis.
PN606
MR FRIEND: If your Honour pleases.
PN607
Now, if you look at that 15(a)?---Yes.
PN608
"Problem profile compiled with and analyse dates, times, type of property stolen, location"?---Yes.
PN609
I take it the location was all in the same area?---Yes, fairly localised.
PN610
It was the same cinema?---Yes.
PN611
How did it come about that someone decided to prepare a problem profile, are you able to assist us with that?---It emerged as a context of not only reported crime within the complex, but also particular types of how the crime was committed. We say that it emerged that there was a likelihood that there was a link between a series of crimes, bearing in mind in shopping centre areas and cinemas there's a large percentage of reporting of crime generally. I think it's 27 per cent of crime in and around shopping centres.
**** NOEL ASHBY XXN MR FRIEND
PN612
Yes. I'm just trying to get at the question of who initiated the creation of the problem profile?---Okay, yes, yes. It was initiated at local level and was identified through the - by the - at supervisory level in the - I think it was the divisional management unit.
PN613
So that was initiated at local level, then there was analysis of some data - - - ?
---Sorry, then?
PN614
Then there was an analysis of data you said and that shows cars in the vicinity of the cinema?---Yes.
PN615
I assume there's nothing on your area relief forms that records half price ticket office from cinemas?---No.
PN616
So that was probably local knowledge too?---Yes, perhaps.
PN617
Perhaps. And then you say, about two-thirds of the way down, "Police spoke to a number of people during these patrols and the statistical information together with the information from the public identified a group of offenders"?---Yes.
PN618
Now, are you able to enlighten us as to how the statistical information identified the offenders?---It was information about the way people spoke, about what they wore, about times.
PN619
Show me - would we be looking at the area form for that at all?---You may overlay with the area form.
PN620
Show me on the area form where you get that sort of information?---Well, the area form is reported activities that have occurred at a given point in time and the type of duties performed.
PN621
So that really won't help us with that task, is that right?---In respect to that, no. It might give us an indication of where our police were working.
PN622
THE DEPUTY PRESIDENT: So the police form isn't relevant, okay.
PN623
MR FRIEND: Okay. Go to Police 13. Show me where - - - ?---Is that the LEAP form?
**** NOEL ASHBY XXN MR FRIEND
PN624
LEAP form?---Sorry. Obviously I've got it.
PN625
Where's the statistical information collected here which will help to identify the group of offenders?---The information that would be relied upon would be in terms of from methods of entry, which can often be consistent - - -
PN626
No, no, the group of offenders, we're identifying the group of offenders, not showing that there's a spate of car thefts?---Sorry.
PN627
Yes, that's all right?---Sorry, that's what I thought you were talking about, yes.
PN628
So where's the statistical information here that helps identify the group of offenders?---On LEAP of itself, no.
PN629
Well, you see, you've said here, "Statistical information, together with information from the public identified a group of offenders." So what statistical information were you talking about?---What I was meaning is that this mass of information here is overlaid to then go back and look at our existing holdings, our existing information held centrally to say who may commit a crime like this in this area and we then go back and look at existing persons of interest to start with, if you like, to see who may be around at a given point in time. We then overlay that perhaps with a running sheet to say, yes, that person was checked at that - or that group of people were seen in the vicinity by another patrol unit a couple of days before. So we're then putting the people at the location and it's built up in that nature. So any one of these of themselves doesn't - well - - -
PN630
I just couldn't follow the first part of that chain. Just describe to me the body of statistical information that helped identify the offender in this case?---We're talking about the type of - the way the crime is committed at a given point in time.
PN631
So now explain to me how that helps identify the offender?---Because we then go and look at our persons of interest folder or our criminal records to see who may be committing crime in a similar way and particularly locally, we tend to find they stay locally. We then search other data bases, or intelligence analysts do, and say, yes, X, Y and Z were actually in the Dandenong Plaza or the Narre Warren Plaza at that given point in time and so on.
PN632
Yes, and the modus operandi recorded in the case progress narrative, you've been pointing at that, I think?---Yes, yes, down the bottom.
**** NOEL ASHBY XXN MR FRIEND
PN633
And that's something that's been completed?---As far as I know, yes.
PN634
Thank you. Now, in (b) - - -
PN635
THE DEPUTY PRESIDENT: Is that the kangaroos?
PN636
MR FRIEND: This is the kangaroo one, your Honour, yes.
PN637
THE DEPUTY PRESIDENT: Right.
PN638
MR FRIEND: What's the existing statistical data you refer to in the fourth line there?---Sorry, the?
PN639
The fourth line of paragraph (b)?---That's information that comes from the traffic information system. So that's the system that records all the data surrounding motor vehicle collisions. Fatal right down to non fatal.
PN640
And what form was filled in in relation to that?---There is material entered on to the TIS database by the members who attended the crash, or go to the crash and may enter that on to the database.
PN641
And the outcome of this was that education procedure - - - ?---I beg your pardon?
PN642
The outcome of (b) was education for people about kangaroos in the drought?
---Local media approach to beware, to reduce in that area and to be taken to other similar PSAs where necessary.
PN643
Now, TIS forms are being completed, apart from statistical information, correct?
---Yes.
PN644
And so that information would still be available about the kangaroos?---Well, we would hope so.
PN645
Now again with (c), this is the particular police service area, what do you mean when you say - I'm not asking you to identify, but what do you mean when you say police service area?---A police service area is generally defined by local government boundaries. So it's a police service area. Now, within a police service area, which the only complication, generally there is the one police station which is a large police station, but on occasions there are others in police service areas. A good example of that, just for clarity, is Greater Dandenong. There is Dandenong Police of course, but Springvale Police form the one police service area.
**** NOEL ASHBY XXN MR FRIEND
PN646
It's the same service area, all right?---And there are a few other examples.
PN647
How did this issue of theft of motor vehicles arise in that particular police service area, what brought it to attention?---Well, firstly there was the increase in the reporting of the incidents.
PN648
And that's reporting through the LEAP forms?---Yes, it would be reported through the LEAP forms in the normal manner.
PN649
And that's material that you would still be expecting to get even on your view of statistical information on the LEAP forms, you'd still - - - ?---Yes. The incident field report, yes.
PN650
So you'd still know that and still come to attention?---Yes.
PN651
All right, and you'd still have the statistical information to identify the increase of 39.6 per cent obviously, because that's the same information?---Yes. Bearing in mind there is, you know, a large number of cars being stolen at a given point of time and so that's why we search down from particular points to connect one with another and so on.
PN652
Yes, but the LEAP form, even subject to the bans as you describe them, would still allow you to identify the times, days, types of vehicle, modes of entry, location and types of property stolen?---Yes.
PN653
Now, moving on to (d). That was initiated by the transit police?---Yes, it was.
PN654
Now, the information about times would have been made available by them or available as a result of reports to the police, is that right?---Yes.
PN655
And the reports to the police would have - the information would have been on the LEAP form even if it was completed subject to the bans, correct?---Yes, the information would have been.
PN656
Thank you. I'm going to ask you something about tasking. That is now done by response zone, is that correct?---Yes, and it can be broader in certain circumstances but as a general proposition, and response zones are really are service centres.
**** NOEL ASHBY XXN MR FRIEND
PN657
Service centres?---Yes, they are really now - they are police service centres, or PSAs.
PN658
In terms of ban 14, can I ask you some questions about that?
PN659
THE DEPUTY PRESIDENT: It's paragraph 24 of he witness statement, is it?
PN660
MR FRIEND: Yes, well, I'm looking at paragraphs 18 and following of the statement.
PN661
THE DEPUTY PRESIDENT: Sorry, yes.
PN662
MR FRIEND: But I'm not going to go to 25.
PN663
You are aware that - can I ask you this. When the image, either a film image or more commonly, I think it's a digital image now, isn't it, of a car that's been speeding?---There are still a number of - of speeding?
PN664
Yes?---Yes, yes.
PN665
When the image is received it's viewed by an employee of Tenix?---At the present time still Tenix, yes.
PN666
But not by a sworn member of the Police Force?---No.
PN667
And all of the images are viewed and the registration checked and vehicle details obtained and in effect the traffic infringement notice is prepared?---Yes.
PN668
By the Tenix employee?---Yes, they're processing, the back end, I think they call it.
PN669
And then a sworn officer then, in relation to a group of photographs, will check a sample?---Yes.
PN670
Not check all of them?---No.
PN671
And if the sample are okay, then all of them are issued?---Yes, and if there is a problem found, there is a greater search done.
**** NOEL ASHBY XXN MR FRIEND
PN672
A greater search done of the sample?---Yes, that's right.
PN673
Is there anything that mandates the size of the sample?---No. Just it's a local operating practice that - - -
PN674
So it could be - - - ?---We leave that really up to the local area.
PN675
It could be very large?---It could be very large.
PN676
Yes?---And it's usually done by session, largely.
PN677
If you would pardon me a moment, your Honour. I'm sorry, your Honour, there is one question I need to ask in confidence.
THE DEPUTY PRESIDENT: The court will close for a moment. Transcript in confidence.
CONTINUED IN TRANSCRIPT IN CONFIDENCE
CONTINUED FROM TRANSCRIPT IN CONFIDENCE
<NOEL ASHBY, ON FORMER OATH [12.44PM]
<CROSS-EXAMINATION BY MR FRIEND, CONTINUING
PN695
MR FRIEND: Now, Mr Ashby, people commonly come in and contest their infringement notices?---To view them?
PN696
Yes?---To view them, yes. Actually I was surprised that - a significant number do, but I thought it would have been greater.
PN697
And those that view them, a number contest their notices?---Sorry?
PN698
A number contest them or - - - ?---Yes, they do.
PN699
Yes, and we're going to call evidence that, subject to certain guidelines which I'll go to in a minute, 60 to 70 per cent of those who contest the notices get a caution instead of a penalty, would that be right?---That could be about right, particularly under the liberalised model that we now operate under.
PN700
Yes, and the model now is that if you're five to 10 k over, you admit the offence and you haven't had a previous offence in the last
two years you get a caution?
---You do, yes, and that's in from I think five years, recently.
PN701
And 10 to 15 k over and if it's no offence in the last three years you get a caution?---Yes.
**** NOEL ASHBY XXN MR FRIEND
PN702
You would accept that that caution operates as a deterrent?---Absolutely.
PN703
So a caution given at any time in relation to speeding could operate as a deterrent?---Look, there's no doubt that, you know, to receive a letter signed by someone with a Victoria Police badge quite clearly has an impact, no question.
PN704
And in those cases it's thought to be as much a deterrent as getting the penalty?
---Yes, because it reminds people in the first instance.
PN705
And that's all you need?---Yes, at that time.
PN706
Now, of course if a person accumulates more than, I think it's 12 points over three years, their licence is suspended?---Yes.
PN707
Subject to various conditions?---Yes, and a number of those demerit points also apply to a range of other infringements. It's not just camera based infringements. It's infringements by police and P plate offences and things of that nature.
PN708
Not seeing a No Right Turn sign is three points, I think?---Yes, that's right.
PN709
It still hurts. The period of suspension starts automatically after the 12 points are received, does it not?---They receive a letter. They're advised and people then surrender their licences at a given point of time. It can be up to 28 days.
PN710
And they have to be given - I'm sorry. On occasions the period of suspension is served out before the driver becomes aware, are you aware of that, that VicRoads don't send the cancellation or the suspension notice at that time?---I'm not sure that that's a general practice, but that does occur.
PN711
That does happen?---Absolutely.
PN712
You're aware of that happening?---I've heard of that happening, yes.
PN713
Have you taken any steps to do something about that?---Well, we have, yes. We constantly are dealing with VicRoads in respect to getting notices out to people promptly. On occasions where people might be driving unwittingly we take no action against them, for obvious reasons, if it's unwittingly.
PN714
But your statement, you say that this is a serious problem, could be a serious problem. Is that all you do about it as it exists at the moment?---In regards to? I don't follow.
**** NOEL ASHBY XXN MR FRIEND
PN715
People driving while they're suspended?---Well, the management of the system is principally VicRoads' responsibility. We don't manage that part of the system - - -
PN716
But your statement says that this is a serious issue about public welfare, it endangers public welfare. What are you doing about it with VicRoads?---We deal with Vic Road regularly in respect to this issue and we recognise, given 4.1, I think, million licensed drivers in Victoria, that it is a big network and a big system. So we err on the side of caution. An ideal system would be one without them for us, particularly in terms of drivers.
PN717
So it's not something that you propose to take any especially strenuous steps about, is that right?---Well, it depends on your definition of strenuous steps. It's something that constantly needs to be managed between us and VicRoads.
Yes, all right. I have nothing further from Mr Ashby.
<RE-EXAMINATION BY MR PARRY [12.49PM]
PN719
MR PARRY: Assistant Commissioner, in paragraph 15 of your statement you were taken to a couple of these matters and you were taken, I think it's on page 5, to 15(c) where there was reference to theft of motor car offences and the identification of the times, days, types of vehicles, modes of entry, location and types of property stolen?---Yes.
PN720
You go on and say other information sources were analysed to obtain further information including offenders who had committed similar
offences in the past?
---Yes.
PN721
What other information sources are you referring to there?---We refer to a whole range of information sources, both that are held officially by Police and also known by members. At tasking coordination committees, they're not prescriptive, they're two way and people are - and members are also asked to tap into their local knowledge. It is a range of - it is not any one single thing we do that provides a holistic picture.
PN722
Who conducts that analysis?---It's conducted by analysts, crime analysts and public disorder analysts at local level.
PN723
Right?---So they are employed with the divisional intelligence management units and they're also employed regionally as well, in the central regional office.
**** NOEL ASHBY RXN MR PARRY
PN724
Right, and similarly in (d), who conducts that analysis of the reported incidents there referred to in (d)?---Yes. That was identified through the transit divisional intelligence management unit in consultation with the regions.
PN725
And who conducted that - - - ?---Or region - - -
PN726
And that again, an analyst?---An analyst, yes.
PN727
Now, you were asked about area forms and black spots and you said that you don't have in the area forms the black spots information. Where does black spots information come from?---Quite often that black spot information is - look, black spots are traditionally used in road policing as opposed to the crime of public disorder because they're then identified in the context of crime and public disorder as hot spots. So where there is a merging issue in a particular area and that's identified through the growth or spike, if you like, of reported crime in a particular area and a particular class of crime, bearing in mind there's 27 categories of crime and in some of those, some sub categories.
PN728
And what statistical information underpins the identification - - -
PN729
MR FRIEND: That's a leading question, your Honour. That's what my learned friend was after, but the statistical information has not been established in the identification of black spots or hot spots.
PN730
MR PARRY: What information?
PN731
MR FRIEND: Well, it's too late.
PN732
MR PARRY: Well, what information allows the identification of hot spots or black spots, I'm sorry?---It is the information that comes from our recorded crime statistics at local level, report of the crime, and then the further extrapolation of information of how particular crimes occur.
PN733
And that further extrapolation of how crimes occur, what information is that extrapolation based on?---Well, that's in some of the boxes that we have reported in the incident and field reports and that's precisely the reason many of them are there.
PN734
Do you still have the LEAP form before you?---Yes.
**** NOEL ASHBY RXN MR PARRY
PN735
THE DEPUTY PRESIDENT: Police 13.
PN736
MR PARRY: Now, you say the boxes?---Yes.
PN737
When you say the boxes, what are you referring to?---The area that's in this case, I'll have to go to the crime, offences against person, modus operandi, cross applicable boxes. That's how the crime is committed.
PN738
Right?---Modus operandi on the property or statute crime. Again, cross applicable boxes.
PN739
And included things such as - - - ?---Prejudice motivated crimes, it's again, because we need more information to target particular emerging - - -
PN740
All right. And the very end of that LEAP form it has "physical restrictions"?
---Yes.
PN741
What's that?---Well, that's a description of someone who may or may not be a suspect or someone that may even want to be able to take the information further. So it could be an associate from someone who may be a suspect, but generally it's the suspect.
PN742
Is that statistical information?---Quite clearly it is.
PN743
And with regard to vehicle theft, I think there's a document headed "vehicle theft" about three-quarters of the way through that?---Yes.
PN744
It has, halfway down the page, "locality stolen from", or three-quarters of the way down the page?---Yes.
PN745
And is that statistical information?---Yes, quite clearly it is.
PN746
You said you heard about a Sergeant John Harper from Oakleigh who is going to tell the Commission that in the last two years he has not been provided with black spot information. You were asked if you were surprised by that. You said you were?---Yes.
PN747
Why would you be surprised by that?---Because I've never heard of that before. Previously I was a Regional Assistant Commissioner for South East Region which encompassed 89 working locations throughout the south east part of Victoria. There's 1680 police with tasking committees at local and divisional level right throughout the region. I've never heard of anything of that nature, and the South East Region runs from the border of Clayton and Springvale through Greater Dandenong, through the La Trobe Valley to the New South Wales border. It encompasses the back of the snow fields, from Baw Baw round to Falls Creek and also the Frankston and Mornington Peninsula area.
**** NOEL ASHBY RXN MR PARRY
PN748
He will apparently tell the Commission that in the last two years he hasn't been provided with any crime maps?---Mm.
PN749
I'm sorry. Remind the Commission and myself what are crime maps?---A crime map is a map of an area that overlays crimes as they're occurring in a particular and given area and it can be quite a simple computer generated map that has colours, crimes and times in different areas.
PN750
And you were asked in respect of that evidence, would you be surprised, and you said you would. Why would you be surprised?---Again for the reason I outlined just earlier in response to my experiences, the Regional Assistant Commissioner for the South East Region.
PN751
Yes. I have nothing further, if the Commission pleases.
PN752
THE DEPUTY PRESIDENT: Thanks very much. Do you wish this witness be excused?
PN753
MR PARRY: Well, only subject to something that would require his recall, but subject to that, I would ask him to be excused.
THE DEPUTY PRESIDENT: Yes. Thank you very much for giving evidence. You're excused, subject to possible recall, thank you?---Thank you and of course I'll be available.
<THE WITNESS WITHDREW [12.57PM]
PN755
THE DEPUTY PRESIDENT: Is now a convenient time?
PN756
MR PARRY: It is for us, your Honour, yes.
PN757
THE DEPUTY PRESIDENT: Right, and after lunch we'll deal with?
PN758
MR PARRY: Deputy Commissioner Kieran Walsh.
PN759
THE DEPUTY PRESIDENT: Same folder, right. Thank you very much, we'll adjourn.
<LUNCHEON ADJOURNMENT [12.57PM]
<RESUMED [2.18PM]
PN760
THE DEPUTY PRESIDENT: All right where are we?
MR FRIEND: Your Honour I think one of the directions is that we do, prepare an outline of submissions which we will hand up, two copies of that. I don’t think it takes it takes it any further than what I said this morning your Honour. I suppose your Honour would like to mark that?
EXHIBIT #FEDERATION 2 OUTLINE OF SUBMISSIONS
PN762
THE DEPUTY PRESIDENT: Right Mr Parry?
MR PARRY: If your Honour pleases we call Deputy Commissioner Kieran James Walshe.
<KIERAN JAMES WALSHE, SWORN [2.19PM]
<EXAMINATION-IN-CHIEF BY MR PARRY
PN764
MR PARRY: Deputy Commissioner your full name is Kieran James Walshe?
---That is correct.
PN765
You hold the rank of Deputy Commissioner with the Victoria Police?---I do.
PN766
The business address thereof is 637 Flinders Street, Melbourne?---That is correct.
PN767
You’ve prepared a statement for these proceedings Deputy Commissioner?---I have.
PN768
Do you have a copy of that before you?---I do.
PN769
Are the contents of that true and correct?---They are, yes.
I tender that statement.
EXHIBIT #POLICE 14 WITNESS STATEMENT OF KIERAN WALSHE
PN771
MR PARRY: Deputy Commissioner, if I could take you to paragraph 17 of that statement – I’m sorry paragraph 16?---Yes.
PN772
This is evidence you give in respect of clause 3.16 which deals with Police duties at sporting and special events. You refer in paragraph 16 to a number of major sporting and entertainment events that will occur in region 1 over the coming months. Do event s occur in other regions other than region 1 that are covered by clause 3.16?---Yes there are other events. There will be later on, there will be the motorbike GP down at Phillip Island which will be covered by that clause. Also other activities can occur, horseracing at Sandown Racecourse is outside of region 1 and would be subject to that clause. Other activities that occur are from time to time, are the air show, there could be other activities at Calder Park Raceway or there can be activities out in regions such as festivals, large agricultural shows et cetera that can be cleared as a voluntary duties event.
PN773
Who declares them as a voluntary duties event?---Well it’s up to the local manager to apply voluntary duties and request that voluntary duties be called for.
PN774
You have focussed on region 1 and you describe the process of the next couple of months where there are some 1348 instances called. Now when these voluntary – you’ve given examples of the voluntary duties, the Melbourne Show, the Grand Final Parade, and so forth, now when these voluntary, these events take place these a roster prepared and that roster is filled in part with voluntary duties persons and in part with others?---That is correct.
**** KIERAN JAMES WALSHE XN MR PARRY
PN775
What sort of proportion?---It depends on the response to the voluntary duties, but in most cases you will find with the exception of a small core of four or five people, who are familiar with the functionality and the activity of the venue, the remainder will be staffed by voluntary duties.
PN776
The vast majority?---The vast majority, yes.
PN777
Right and when that happens these people on voluntary duties as I understand it are on holidays, or on leave?---On recreational leave, or on rostered rest days.
PN778
Right and if and when this ban comes into place this Saturday and people don’t put their names down for voluntary duties, what’s going to happen about police present for example football finals?---Additional people, additional police will have to be resourced from the other regions and from the other parts of region 1. Region 1 has three divisions, division 1 is the central business district and around Docklands et cetera, and then there’s division 2 and division 3 are the other two divisions. So resources will be called from those divisions as well as resources will be called from the metropolitan divisions of regions 2, 3, 4 and 5.
PN779
In those regions where you say resources will be called, will that be officers that are on roster in those regions?---That will be the case yes. In most cases you’ll find in those regions and from my experience, formerly being an assistant Commissioner of region 4, where you have additional vehicles rostered for a Saturday evening, you’ll cancel those patrol vehicles and send the rostered people to the sporting event, thereby reducing your patrol and response capability.
PN780
So what will happen say this weekend and the following weekends in respect of those gaps created in the rosters in those other regions by people moving to the special events?---It will just leave shortfalls in those other regions, they will not have the capacity to provide the operational response and control that they would have had rostered. They will have to re-roster those people for the sporting events. I am aware for this weekend there’s been a request for 94 police from regions 2, 3, 4 and 5 to come in to police the sporting events in the football mainly.
PN781
Those 94 there will be gaps in the rosters in those regions?---Yes.
PN782
What will happen to those duties that those officers would normally
perform?---They won’t be undertaken as I said what – from my experience what normally would happen, local managers endeavour
to roster additional vehicles on particularly Friday, Saturday nights for public order issues, and what normally would happen in
the circumstances where they get a request now to provide resources for sporting events in the city, they will just take the people
off those vehicles, send them to the football or the sporting event and then they won’t have that roster capability back in
the region.
**** KIERAN JAMES WALSHE XN MR PARRY
PN783
If your Honour pleases, that’s the evidence of the Deputy Commissioner.
<CROSS-EXAMINATION BY MR FRIEND [2.26PM]
PN784
MR FRIEND: Mr Walshe you were the commander of region 4 in the latter half of 2001?---A short time towards the end of 2001 I was the acting commander, I became the acting commander of region 4 in January 2002 and I remained there until I was promoted there at the end of 2002 and I remained in region 4 until May 2004.
PN785
All right, after May 2004 where were you?---I went to the Ethical Standards Department.
PN786
I see at the time in the latter half of 2001 are you aware of the bans that had been imposed by police to that round of bargaining?---There were bans I can’t tell you exactly the detail of the bans, but I’m aware there were bans, yes.
PN787
Could you have a look at this document for me please? There’s a copy for his Honour. Now you may not recall whether that is the document – that is the document that represents the bans, do you recall that?---I don’t recall the document as such but from what it appears to me to be relevant to those bans.
PN788
Yes, well just in relation to them, we can go through all of the bans that are the same in due course, but just in terms of your evidence
have a look at number
17?---That’s 17 the ban on volunteering to be rostered to perform police duties at sporting and special events on days off.
PN789
Yes, so you are aware that that ban was in place during the bargaining in 2001?
---Yes.
PN790
It actually was acted upon by police members?---In some cases it was.
PN791
Yes?---My understanding back in 2001 there wasn’t a great take up in relation to voluntary duties as a ban.
PN792
Yes and all right, now at that time you were aware that the bans were in place for some time, all of the bans?---My recollection is that bans were in place for around about 13 weeks.
PN793
Yes, it was a good time wasn’t it?---It was a good time, yes.
**** KIERAN JAMES WALSHE XXN MR FRIEND
PN794
It was all of those bans?---My understanding yes.
PN795
You are aware of a lot of publicity about that at the time?---There would have been yes.
PN796
Have a look at this document please this is a report from the Herald Sun on
15 August 2001?---Yes.
PN797
There’s an article about the bans including the fact that drivers wouldn’t be fined for speeding as one of the bans?---That’s what it says, yes.
PN798
As one of the bans?---Yes.
PN799
If you look in the middle column under the inset there, there’s a quotation from the Premier Mr Bracks, he said the bans had not affected public safety over the administration. If public safety was at risk the government would seek to terminate the bargaining period?---I see that.
PN800
Do you recall that being an issue at the time?---My recollection as I said before was that there wasn’t a great take up with regards to the voluntary duties and therefore it hadn’t had an affect back at the police station.
PN801
Expanding it from voluntary duties, all of the bans, do you recall that being an issue, the government saying there’s no issue of public safety?---I don’t have any direct recollection other than what you put before me here.
PN802
All right, I tender that your Honour pleases.
PN803
THE DEPUTY PRESIDENT: Right you are tendering both of them are you?
PN804
MR PARRY: Your Honour, he can tender it but I’m not sure what the - - -
PN805
THE DEPUTY PRESIDENT: I think the point is one of weight and that will certainly be taken into account.
PN806
MR FRIEND: Yes, yes.
PN807
THE DEPUTY PRESIDENT: Are you tendering the first list, annexure A?
**** KIERAN JAMES WALSHE XXN MR FRIEND
PN808
MR FRIEND: Yes, I am your Honour I’m sorry.
EXHIBIT #FEDERATION 3 LIST OF BANS
EXHIBIT #FEDERATION 4 NEWSPAPER REPORT DATED 15/08/2001
PN809
MR FRIEND: Now can you look at this report dealing with voluntary duties, this is from 18 August again from the Herald Sun you see Assistant Commissioner Perry, conceding this is in the middle column again at the bottom, 49 officers will he taken from duties at suburban stations this weekend to help cover the shortfall?---I can see that.
PN810
Wouldn’t affect services to the public?---I see that.
PN811
Do you have any reason to doubt that that’s true? That was true at the time?---I can’t doubt what Mr Perry believed at the time, or what Mr Perry said.
I tender that your Honour.
EXHIBIT #FEDERATION 5 NEWSPAPER REPORT HERALD SUN SATURDAY 18/08/2001
PN813
MR FRIEND: Now were you aware at the time that Chief Commissioner applied to have the bargaining period terminated in 2001?---No, I’m not.
PN814
I’m not sure who else I can put this to. There were hearings at the Industrial Relations Commission at that time, you not aware of that?---No, I’m not.
PN815
That counsel for the Chief Commissioner asked for the hearing in relation to the parties failure to reach agreement that ground of termination to be dealt with before the health and safety ground, you are not aware of that?---No, I’m not.
PN816
We will produce evidence in relation to that in due course your Honour.
PN817
THE DEPUTY PRESIDENT: Are we taking that one as far as it can go for the moment?
PN818
MR FRIEND: I was trying to give them an opportunity.
PN819
Now Mr Walshe when you talk about in your statement in paragraph 19, 1348 police is that every weekend?---No, that’s the cumulative number or estimated number of police that would be required for operation – from to be located to region 1 from other operational duties to perform police patrol duties or duties at sporting events, for the months between September and November.
**** KIERAN JAMES WALSHE XXN MR FRIEND
PN820
All right now in any given case whether you have to relocate people will depend on whether there are sufficient volunteers?---That is correct, but we do get a lot of volunteers that come from non operational areas, that come from corporate areas.
PN821
Yes and if you don’t get enough volunteers then at the moment, you transfer people from another area do you, another region to do it?---What generally occurs at this time, if the volunteers don’t register then the resources are drawn from region 1. Region 1 has to take resources from other activities then to fill the roster where the gaps are left when people don’t – the number of voluntary duties are not met.
PN822
That’s not the only thing you can do is it? You can recall people who are on their days off for instance, you can get people to work overtime?---You can, yes.
PN823
You can recall, you can put them on recall and call them in can’t you?---You can.
PN824
But you choose not to do that at present if you haven’t got sufficient volunteers, you choose to take people off operational duties?---That’s correct, yes.
PN825
Because that as a management decision is a reasonable balance, correct?
---Reasonable balance and also there is an implication in relation to the effect on available overtime budgets.
PN826
Yes there is no reason in relation to the existing ban or the ban sorry – on volunteering why you couldn’t recall people?---There’s no reason why you couldn’t but if we adopted a process to do that, that activity in itself has an impact on the health, safety and welfare of the community because it actually reduces the capacity of local managers to use the available overtime budget to address specific public order and public safety issues in their own respective areas. I can give you an example quite clearly. Is the Werribee Police Station, there has been a number of issues within Werribee in the Wyndham police service area. Public order issues of recent times and local management, has been using some of its overtime budget to provide additional intense police presence to address those public safety issues. So if we were going to use overtime money to do sporting events, it then reduces the capacity for local managers to address public safety issues in their own areas.
PN827
Who pays for police to attend sporting events?---The – it will be the organizers.
**** KIERAN JAMES WALSHE XXN MR FRIEND
PN828
The organizers of the sporting events?---Yes.
PN829
So why does it come out of the overtime budget?---Because we don’t get that money it comes from the user pays money, it goes to government it doesn’t come to Victoria Police.
PN830
Well?---It does not come back into the Victoria Police budget.
PN831
That is an internal accounting choice isn’t it?---But it doesn’t come back into the Victoria Police budget.
PN832
All right, but there’s no reason why that money couldn’t be used to replenish overtime if it’s used for sporting events is there?---But it doesn’t come into the police budget. So we don’t get it back, we don’t get reimbursed, it’s remitted to government, not remitted to us.
PN833
So it’s a choice for government whether or not it funds the police force appropriately?---The government allocation is an allocation provided by government, yes. But we don’t get that money back, that money does not come back to supplement our overtime.
PN834
I understand that you said that three times. The government has a choice to replenish police funds?---That’s an option for the government.
PN835
Yes and it does on occasions when there are shortfalls does it not?---In respect to?
PN836
Any shortfalls, does it never replenish funds where there’s a shortfall?---Not on every occasion no.
PN837
I didn’t say on every occasion, it does on occasions is what I said?---There has been occasions and I can recall that the government has provided additional funding following submission to government, yes.
PN838
The government is involved in these negotiations isn’t it for this bargaining?
---Sorry?
PN839
These enterprise negotiations for a workplace agreement the government is involved in that isn’t it?---Well my understanding is the negotiations are between the Chief Commissioner and the Police Association.
**** KIERAN JAMES WALSHE XXN MR FRIEND
PN840
The Police Commissioner isn’t taking instructions from the government, is that your understanding?---I’m not involved in the negotiations so I can’t make any comment but my understanding is that the negotiations between the Chief Commissioner and the Police Association.
PN841
You are seriously sitting there and saying it’s completely up to the Chief Commissioner?---I’m not involved in it. So my understanding is that it is the Chief Commissioner and it’s the Police Association.
PN842
So you are seriously saying it’s up to her?---It’s up to her to reach an agreement with the Police Association.
PN843
And she doesn’t have any instructions or funding criteria placed upon her by the government?---Well there’s funding criteria - - -
PN844
Is that your observation?---Well that’s been – that’s public knowledge that the government has made it very clear that there is a wages policy of 3.25 per cent which the government is adhering to.
PN845
Yes, thank you.
THE DEPUTY PRESIDENT: Any re-examination?
<RE-EXAMINATION BY MR PARRY [2.41PM]
PN847
MR PARRY: If your Honour pleases. Deputy Commissioner you mentioned – you were asked about the uptake and if you didn’t get sufficient volunteers what in your experience is the – how often does it occur that you don’t get sufficient volunteers for major sporting events in area 1?---My understanding is that that is very rare that you don’t – it’s a very popular activity for members to engage in. It provides them an opportunity for some additional remuneration and particularly during the high areas of sporting activity it is quite sort after.
PN848
You mentioned the non operational corporate areas?---That’s correct yes.
PN849
How do corporate non-operational officers I take it, they are sworn officers?
---Yes, they are.
PN850
How can they be volunteer for operational voluntary duties?---They can do the same as anybody else. They can lodge their name with the special events office at region 1 providing they have a uniform and providing they hold a current Aust qualification they can work voluntary duties and these are people who work in corporate departments that are not actually involved in operational activity on a routine basis.
**** KIERAN JAMES WALSHE RXN MR PARRY
PN851
But they would still be PFA members and?---Yes, yes.
PN852
Yes I have nothing further of the Deputy Commissioner your Honour, may he be excused subject to the possibility that we might need to recall him if we are taken by surprise.
THE DEPUTY PRESIDENT: Yes, recall, yes thank you very much for giving evidence you are excused subject to the possibility of recall.
<THE WITNESS WITHDREW [2.43PM]
PN854
THE DEPUTY PRESIDENT: Right is there anything we can do next?
MR PARRY: I call Findlay McRae.
<FINDLAY MCRAE, SWORN [2.43PM]
<EXAMINATION-IN-CHIEF BY MR PARRY
PN856
MR PARRY: Mr McRae, your name is Findlay McRae, you are the director of legal services for Victoria Police?---Yes.
PN857
That is of 637 Flinders Street, Melbourne?---Yes.
PN858
Now there has been a – you’ve prepared a statement for these proceedings?---Yes.
PN859
Do you have a copy of that before you?---I do.
PN860
If I could firstly take you to paragraph 13 and you there refer to the clarification or re-clarification of ban 12 which is on attending court without a subpoena and I think you there refer to the question and answer session. I’m going to hand you a document which is exhibit P9, I’m handing the witness exhibit police 9.
PN861
THE DEPUTY PRESIDENT: Which one is that? Yes.
PN862
MR PARRY: Now you see there’s a reference there to ban 12?---Yes.
PN863
Is that the update that you are referring to when you refer to the – your understanding of the current state of this ban?---It is.
PN864
Now if I could then take you on to a bit further you then go on to ban 13 and perhaps for the assistance of the Commission you could explain the process whereby what’s required in respect of subpoenas in the Magistrates' Court and superior courts being the County Court and the Supreme Court?---In the Magistrates' Court the Act requires personal service of subpoenas. In that case either personally, or by leaving it at a business address and that service is arranged by the informant.
PN865
In the superior courts?---In the superior courts, service of subpoenas is again personal but by leaving with the person who is to respond to the subpoena, handing it to them while leaving it in their presence.
PN866
Now in respect of ban 13 this prevents members serving subpoenas for the OPP, what option is there for the OPP to engage process servers, do you have any understanding of whether that is to be the case or not?---My understanding is that the OPP is not going to engage process servers to serve subpoenas.
**** FINDLAY MCRAE XN MR PARRY
PN867
Now in respect of ban 13 to deal with the timeframes how far out from trial in say the County Court are subpoenas served?---The policy in the OPP is to serve - - -
PN868
THE DEPUTY PRESIDENT: Sorry, the OPP?---The Office of Public Prosecutions.
PN869
Thank you?---Is to serve subpoenas once a trial date has been fixed. That can be some months before the actual trial but we know in practice that due to the weight of work that they’ve got that the actual service can occur much later.
PN870
MR PARRY: When you say much later, you mean much closer to trial?---Within weeks of the trial.
PN871
Are there other circumstances where subpoenas need to be served at much shorter notice?---As the prosecution agencies look at the case and the relevance and the availability appropriate witnesses, it’s often the case that there’s a subpoena served close to the trial or even the day before the trial to get witnesses to court that are important to the case.
PN872
Is that civilian and police witnesses?---Both.
PN873
All right if I could take you on through your statement Mr McRae paragraph 26 is in part referring to the case of the R v Tran Van Tran, I think there’s a typographical error your Honour in paragraph 25, instead of Tan it should be Tran, in paragraph 26 you refer to this being a mention in the County Court. Do you wish to correct that?---It was actually a seven day trial that the transcript is referring to not a mention.
PN874
In paragraph 31 you refer to his Honour noting that he was aware this example was not an isolated incident, does that part of your
evidence there relate to the bottom of paragraph – I’m sorry page 5 of the transcript in attachment
FM3?---Yes it does.
PN875
And where starting with:
PN876
I am aware from contact I’ve had with the Office of Public Prosecutions that this is not a unique situation in other cases where it is likely to trial and not be able to proceed because the witnesses have not been served with subpoenas by the police.
**** FINDLAY MCRAE XN MR PARRY
PN877
?---Yes.
PN878
Do you also, I want to draw to the attention of the Commission what occurred at the end of this case, the application, the invitation to make an application for bail on page 9?---Yes, I think it’s important that the Commission notes that due to the circumstances of the matter at the end of the transcript Judge Jones invites the defence counsel, if counsel is considering to make an application for bail, presumably because of these new facts and circumstances that such an application should come back before Judge Jones and the circumstances of that case the defendants who are charged with armed robbery and other offences had been in custody for almost 12 months. In my experience that’s a benchmark time in the high jurisdictions for keeping people in custody because of the relevance between the rights of the individual and the likelihood of a sentence of imprisonment at the end of the day.
PN879
If I could move on through - - -
PN880
THE DEPUTY PRESIDENT: Sorry so they were released were they or they applied for bail and were released?---I don’t know what happened, the point that I’m making I suppose in my affidavit or adding to the affidavit, is that circumstances like these will bring a reconsideration of bail, they are new factors and circumstances that are relevant to the court if somebody has been in custody for a lengthy time.
PN881
MR PARRY: And that impacts on the prospects of bail?---It does because it changes the weight between prejudice to the accused and I suppose the other consideration being likelihood of re-offending and protecting the community.
PN882
If I could go on to paragraph 34 of your statement Mr McRae it says an average of 2850 matters a month are dealt with by caution. The PFA bans focus on shoplifting and minor drug matters. Is that a smaller subset of that?---Yes, it is.
PN883
What sort of numbers?---That would be 2500 children – Children’s Court matters and 4500 in the adult jurisdiction per year, so a total of 7000 approximately each year.
PN884
If I could take you to ban 16 - - -
PN885
THE DEPUTY PRESIDENT: Sorry what 7000 overall matters is it?---A total of 7000 that deal with cautions for shop theft of under $100 and use and possess drug, involving marijuana so it’s a subset of the total 34,000. I think the 34,000 is probably a reference to caution and diversion.
**** FINDLAY MCRAE XN MR PARRY
PN886
Yes, thanks.
PN887
MR PARRY: Why do you mention $100 in respect of the shoplifting I think it was?---That’s the sealing for cautions.
PN888
If I could take you to ban 16 paragraph 40:
PN889
But not executing warrants other than arrest warrants for driveable offences and search warrants.
PN890
What is the position with summary bench warrants?---Well the position is that summary bench warrants under these bans wouldn’t be actioned by members.
PN891
What are summary bench warrants?---The situation I’m contemplating is where someone – to give you an example, someone who’d been charged with drive whilst disqualified, which would normally attract a sentence of imprisonment if there were priors who is charged by way of summons. Doesn’t appear at the court, the magistrate knowing that a sentence of imprisonment is one of the considerations would issue a warrant to have that person appear before the court for two reasons. One is where imprisonment is likely the person should really be legally represented and given that opportunity as a matter of natural justice. Secondly, if there’s someone driving around the streets whilst disqualified and if that’s known, it’s important to get that person before the court as a matter of public safety. There are other examples people with multiple .05 charges might be summonsed to appear and not attend and the magistrate may consider that there is likelihood of imprisonment or intentional cause injury cases or common law assault and from time to time the Magistrates' Court issues summary bench warrants for those two reasons public safety and also ensure that the person has a fair hearing.
PN892
The effect of the ban on the issuing of those summary bench warrants?---Well my reading of it is that they wouldn’t be acted on and those people would continue in doing whatever they’re doing.
PN893
If I could go on to paragraph 45 you attach the code of practice in respect of the investigation of family violence and that has – that’s your attachment FM6 and at page 39 of that is that the part of the code of practice that is particularly relevant to this complaint and warrant process?---Yes, it is.
**** FINDLAY MCRAE XN MR PARRY
PN894
Thank you Mr McRae that’s the evidence of Mr McRae and I might ask if I can get my exhibit back if that were possible.
THE DEPUTY PRESIDENT: Mr Friend?
<CROSS-EXAMINATION BY MR FRIEND [2.58PM]
PN896
MR FRIEND: I will just deal with those summary bench warrants. Evidence will be given that when they are issued the members of
the local police force don’t rush out and try and execute them, you’d agree with that wouldn’t
you?---Well they fit it in with whatever their normal work program was.
PN897
Well if they run across the person and they know about it, they’ll take them in, but otherwise it doesn’t have a high priority does it?---Well it’s given the priority that a warrant of apprehension is given and that would be given a higher priority for example a summons. So I would say it is given a priority.
PN898
You would say that would you. Do you have any experience of operational policing?---Only in terms of my court experience and 16 years of that.
PN899
Just remind me, that’s the County Court?---Magistrates' Court, County Court, Children’s Court, Supreme Court.
PN900
Yes?---And also the now 16 months I’ve been in the Victoria Police.
PN901
So have you spent a day at a police station?---I’ve spent lots of days at police stations.
PN902
Following police officers around?---Yes.
PN903
Watching how they allocate their work?---Not – no I don’t spend my time doing that.
PN904
You are really just guessing about this aren’t you?---Guessing about priority for arrest warrants?
PN905
Yes?---Well all I can say is that arrest warrants are given a higher priority than another process because of the nature of the warrant.
PN906
When they’re executed when someone comes in they are given a court date and let back into the community aren’t they?---It depends, it depends on the nature of the warrant. I mean if it’s a matter of – the person could be bailed without conditions, bailed with conditions, or remanded. So the police will make an assessment of the risk and deal with it on that basis.
**** FINDLAY MCRAE XXN MR FRIEND
PN907
All right, drive while disqualified most of them would be sent back out to the community they wouldn’t be remanded would they?---They would be bailed, would be the normal course.
PN908
Yes and your other example I think, was someone with multiple .05 that would be the same?---Yes.
PN909
Right now you were I think the Registrar of the County Court during 2001 were you not?---Yes.
PN910
You familiar with this case of R v Tran Van Tran?---I’m familiar with the transcript.
PN911
You weren’t familiar with it at the time?---I wasn’t involved in the case.
PN912
You didn’t know anything about it what happened at that time?---I can’t remember.
PN913
You can’t remember?---Individual cases for someone.
PN914
Did you know that that case was listed for hearing on 1 October that year?---No.
PN915
You didn’t think to make inquiries before putting all this in your statement about what had happened?---Subsequent to the statement?
PN916
When you were putting this statement together?---Subsequent to the – sorry to the transcript?
PN917
Yes?---I was satisfied with the comments of Judge Jones.
PN918
You didn’t think to make inquiries about what had happened?---I didn’t think it was necessary.
PN919
Okay and of course you say you weren’t aware of this, someone has brought this to your attention to put in your statement, haven’t they?---Well it’s the transcript was on our file in regard to work bans. So on that basis it was relevant.
PN920
It was in the evidence in the last case wasn’t it do you know that? You didn’t know that? You’ll have to speak your answer I’m sorry, because they are recording?---No.
**** FINDLAY MCRAE XXN MR FRIEND
PN921
All right. When the last case was being heard, we weren’t aware of any other trials which had been adjourned in the County Court as a result of the bans? Are you aware of any?---I can’t remember the trials from 2001.
PN922
Well you’re making this allegation in your statement that this is going to lead to trials being adjourned and people being given bail?---I can remember discussions
PN923
Did you look to find out if they were adjourned?---No I didn’t do a forensic analysis because I was thinking about what is going to happen on this occasion.
PN924
All right is there any reason why this occasion would be different to the last occasion?---I can’t comment on that.
PN925
No so what happened on the last occasion would be a good predictor for what might happen on this occasion wouldn’t it?---Do you want my opinion on that?
PN926
Well I’m asking you?---Well I don’t think so.
PN927
What’s difference?---I don’t know.
PN928
So why don’t you think so?---Because the – I’d need to look at the circumstances of the previous bans.
PN929
Well they are the same, take it from me they are the same, assume they are the same, it would be a good predictor for what would happen
this time wouldn’t
it?---I can’t say that because the clarification I’m not sure is the same.
PN930
All right now you’re aware that the OPP have got procedures in place to deal with serving subpoenas?---With serving subpoenas?
PN931
Yes, we are dealing with the bans, are you aware of that?---I’m aware of their procedure, I don’t know of any procedure with serving subpoenas.
PN932
All right Mr McRae someone will give evidence from the PFA that they’ve spoken to a Steven Bird who’s said that OPP has contingencies in place. Would you dispute that if that’s the case?---I don’t dispute that they’ve got contingencies but I don’t think they are in regard to serving subpoenas.
PN933
You weren’t aware last time that they had contingencies in place to deal with it then I suppose 2001?---I don’t know what they did last time.
**** FINDLAY MCRAE XXN MR FRIEND
PN934
No, you see you were Registrar of the County Court and you don’t have any recollection from this from 2001 any independent recollection at all do you?---I can remember that there were work bans that lasted a long time.
PN935
Do you have any independent recollection of an interfering with the work of the court?---Only in the sense that there was discussion at a higher level about how to implement contingency plans.
PN936
So the only interference was that there were high level discussions?---Yes well that came to my knowledge.
PN937
I’m only asking you for your own knowledge. All right now if you turn to paragraph 14 of your statement you talk about subpoenas being served and you say in the last half:
PN938
If the police witnesses will not attend other than a reply to a subpoena then the burden of preparing and serving the subpoena will fall on the informant, an additional administrative burden.
PN939
Now just pausing there, if there’s a non police witness required in a case, who prepares the subpoena?---The informant.
PN940
You then say:
PN941
There is no way of knowing that this function will be carried out on all occasions given that it is a new and different function I expect it will not be carried out on all occasions.
PN942
?---Yes.
PN943
There is no reason to expect that a police informant won’t serve subpoenas to get all the necessary witnesses there is there?---I’m not sure that they will – they will even know to serve the subpoenas with – they’ve got to go through three tiers of paper work to take instructions to get to that and understanding that that’s their role. Because those - that instruction for informants to serve subpoenas on other police witnesses is in the questions and answers, frequently asked questions.
PN944
Do you know that it’s happening now people are being served with subpoenas, police officers in anticipation of the bans, not aware of that?---I’m sure it’s happening. I’m sure that police officers in good faith will follow the instructions under the work bans.
**** FINDLAY MCRAE XXN MR FRIEND
PN945
You aware of any difficulties in relation to this on the last occasion, the bans in 2001?---I’m not sure that last that this was the case, that the informants were to serve subpoenas my understanding it wasn’t a requirement.
PN946
Ban 11 a ban on attendance at the Supreme, County Courts capacity of the witness to announce a subpoena?---I’m sorry are you talking about the summary jurisdiction?
PN947
I think that might be right - - -
PN948
THE DEPUTY PRESIDENT: Sorry where are you reading from?
PN949
MR FRIEND: I’m reading from Federation (3) your Honour but I don’t think you need to trouble yourself with that.
PN950
THE DEPUTY PRESIDENT: Good.
PN951
MR FRIEND: Again in terms of the possibility of the delays in the Supreme and Country Courts, you don’t have any understanding of that occurring apart from that one case on the last occasion?---I don’t – I don’t know from the last occasion, it’s too long ago.
PN952
Too long ago, when you talk in paragraph 19 about delays leading to matters being dismissed for want of prosecution, that’s really just speculation on your part isn’t it?---I have no doubt that informants will not attend court in the higher jurisdictions, some police witnesses will not attend court. In regard to dismissal for want of prosecution, that would be an extreme case, but it’s certainly a possibility. That’s one of the options that the court has.
PN953
I suggest to you that it’s a fanciful possibility in the circumstances?---It’s highly unlikely.
PN954
Highly unlikely all right?---Yes, it’s more likely that it would be adjourned with costs.
PN955
Go back to your previous statement you’ve no doubt that police witnesses won’t attend. How often did that happen on the last occasion?---I don’t know.
PN956
Well why do you have no doubt that they won’t attend?---Because of the nature of the work bans. I’ve had – my office has had police members ring up and ask whether they should attend because of querying the nature of service of subpoenas. And we’ve referred them to the TPA, but there’s obviously uncertainty out there.
**** FINDLAY MCRAE XXN MR FRIEND
PN957
All right now you’ve told us on a number of occasions now that you are only aware of the one case being adjourned in the County Court in 2001, correct, and you’ve told us that the only disruption was discussion amongst high echelons, I think was your word, correct?---Well discussion of significant interruption - - -
PN958
Contingency plans?- - -?---Of criminal justice is what they were talking about.
PN959
Contingency plans for it was what you were talking about wasn’t it?---Yes, and contingency plans.
PN960
But - - -?---The contingency plan was to contact the Attorney and bring it to the attention of the government.
PN961
All right there wasn’t any significant interruption at that stage was there?---Well there was at the stage of that transcript at the trial.
PN962
One case, one trial apart from that?---I think you need to bear in mind that David Jones was the – at that stage a judge who had case management responsibilities for the court so he was speaking on behalf of the judiciary in regard to the criminal justice.
PN963
The transcript speaks for itself. Apart from that case you are not aware of anything are you?---I don’t have case names for you, no.
PN964
You are not aware of anything all right, so why did you say in paragraph 24 that when you were Registrar of the County Court the bans caused significant disruption and meant that a number of serious criminal matters were adjourned, why did you say that?---That’s what my memory was.
PN965
That’s directly contrary to the answer you gave me one minute ago isn’t it, were you lying then, or are you lying now. Can the transcript record a long silence after that question. Mr McRae there wasn’t anything else that you know of was there?---I’ve said what I knew. I knew about discussion.
PN966
24 that sentence I read to you from 24 is just wrong isn’t it?---Sorry what’s the sentence?
PN967
“I was a registrar of the County Court at this time, and I’m aware that this ban caused significant disruption to the administration of justice and it meant that a number of serious criminal matters in that court were adjourned”?---I’m not aware of particular cases, that was my belief that there had been adjournments. So that’s just a general statement as to my memory of 2001.
**** FINDLAY MCRAE XXN MR FRIEND
PN968
All right thank you.
THE COMMISSIONER: Mr Parry?---And in regard to significant cases they are all significant in the County Court because of the nature of them.
<RE-EXAMINATION BY MR PARRY [3.15PM]
PN970
MR PARRY: If the Commission pleases. Mr McRae you said these discussion were of significant interruption to the criminal justice system. These were the discussions at higher level as I understand your evidence. Do you recall any of the content of those discussions about the interruption to the criminal justice system?---The discussions were in regard to work bans being a risk to witnesses coming to court and the risk of major trials, and I categorise all County Court trials in that group, being adjourned. It’s as simple as that.
PN971
You mentioned the role that Judge David Jones has, what role did he have in the court at that time?---Judge Jones during the time that I was at the County Court was a criminal case management judge. He dealt with preparation of cases for trial and that’s why I made reference to him making statements on behalf of the court, in open court, although he made statements in regard to a particular case, he was sounding a warning I suppose, a public warning that there may be a risk to trials if this sort of approach to the work bans continued and my knowledge of that specific statement comes from a transcript.
PN972
Right if the Commission pleases I have no further re-examination.
PN973
THE DEPUTY PRESIDENT: Except for recall, I presume.
PN974
MR PARRY: Subject to the other caveats, your Honour.
THE DEPUTY PRESIDENT: Yes, further caveats, thank you very much for giving your evidence you are excused subject to possible recall.
PN976
THE DEPUTY PRESIDENT: Right that leaves does it one more today or no, you said two tomorrow?
PN977
MR PARRY: No we could have called Dr Newstead but we’ve agreed to put him off until tomorrow at the request of my learned friend and Commissioner, Assistant Commissioner Lay will be available first thing tomorrow morning.
PN978
THE DEPUTY PRESIDENT: Is there anything else you can usefully do today? I mean we have some time.
PN979
MR PARRY: I’m just not sure when we’re ever going to find out what the other – I mean the outline of submissions is far from at least - - -
PN980
MR FRIEND: My learned friend will appreciate that these matters were done in an enormous hurry. I don’t think this material was prepared in 24 hours. We’re hoping to get material to the other end of the bar table, at least some, or perhaps the substantial portion of our materials by the end of the day, we are doing our best your Honour and then when my friend has the witness statements, we’ll have a much better idea. I think that cross-examination probably in terms of each of the issues as raised below the matters that we seek to agitate by way of evidence.
PN981
THE DEPUTY PRESIDENT: How many witnesses do you intend to call?
PN982
MR FRIEND: I’ve got no idea other people have been working on it all day, it will be three or four.
PN983
THE DEPUTY PRESIDENT: You’ve been otherwise engaged.
PN984
MR FRIEND: But as soon as we have anything we’ll not only send it to my learned friend, we’ll send it to your Honour as well.
PN985
THE DEPUTY PRESIDENT: All right so expect a significant number of witness statements to be provided to the other side and to us.
PN986
MR FRIEND: That was my expectation.
PN987
THE DEPUTY PRESIDENT: No, no.
PN988
MR FRIEND: That was my expectation when I left this morning.
PN989
THE DEPUTY PRESIDENT: I see.
PN990
MR FRIEND: And people have been on it during the day.
PN991
THE DEPUTY PRESIDENT: Well I don’t think there is anything more we can usefully do today is there, no? Well thank you very much for your submissions and evidence and we’ll adjourn until 10.15 tomorrow.
<ADJOURNED UNTIL THURSDAY 6 SEPTEMBER 2007 [3.19PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #POLICE1 NOTICE TO INITIATE A BARGAINING PERIOD PN209
EXHIBIT #POLICE2 CLARIFICATION OF INDUSTRIAL ACTION PROPOSED PN218
EXHIBIT #POLICE3 OUTCOME OF THE RESULT OF THE PROTECTED ACTION BALLOT PN219
EXHIBIT #POLICE4 NOTICE OF INTENTION TO IMPLEMENT INDUSTRIAL ACTION, DATED 13/08/2007 PN220
EXHIBIT #POLICE5 LETTER DATED 29/08/2007 PN227
EXHIBIT #POLICE6 PFA CLARIFICATION DOCUMENT, DATED 17/08/2007 PN228
EXHIBIT #POLICE7 FURTHER CLARIFICATION FROM THE PFA, DATED 28/08/2007 PN233
EXHIBIT #POLICE8 FURTHER CLARIFICATION FROM THE PFA, DATED 29/08/2007 PN234
EXHIBIT #POLICE9 CLARIFICATION DOCUMENT FROM THE PFA, DATED 30/08/2007 PN235
EXHIBIT #POLICE10 OUTLINE OF SUBMISSIONS PN240
NOEL ASHBY, SWORN PN359
EXAMINATION-IN-CHIEF BY MR PARRY PN359
EXHIBIT #POLICE11 STATEMENT OF NOEL ASHBY, SUBJECT TO PARAGRAPHS 25, 26 AND 27 BEING THE SUBJECT OF CONFIDENTIALITY DIRECTIONS PN365
EXHIBIT #POLICE 12 AREA FORM PN384
EXHIBIT #POLICE13 INCIDENT FILED REPORT PN396
NOEL ASHBY, ON FORMER OATH PN454
CROSS-EXAMINATION BY MR FRIEND, CONTINUING PN454
NOEL ASHBY, ON FORMER OATH PN678
CROSS-EXAMINATION BY MR FRIEND, CONTINUING PN678
RE-EXAMINATION BY MR PARRY PN718
THE WITNESS WITHDREW PN754
EXHIBIT #FEDERATION 2 OUTLINE OF SUBMISSIONS PN761
KIERAN JAMES WALSHE, SWORN PN763
EXAMINATION-IN-CHIEF BY MR PARRY PN763
EXHIBIT #POLICE 14 WITNESS STATEMENT OF KIERAN WALSHE PN770
CROSS-EXAMINATION BY MR FRIEND PN783
EXHIBIT #FEDERATION 3 LIST OF BANS PN808
EXHIBIT #FEDERATION 4 NEWSPAPER REPORT DATED 15/08/2001 PN808
EXHIBIT #FEDERATION 5 NEWSPAPER REPORT HERALD SUN SATURDAY 18/08/2001 PN812
RE-EXAMINATION BY MR PARRY PN846
THE WITNESS WITHDREW PN853
FINDLAY MCRAE, SWORN PN855
EXAMINATION-IN-CHIEF BY MR PARRY PN855
CROSS-EXAMINATION BY MR FRIEND PN895
RE-EXAMINATION BY MR PARRY PN969
THE WITNESS WITHDREW PN975
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