This article, by HUGH SELBY, is about a recent, all too clear instance of police thuggery in Canberra and the failure of AFP management to respond appropriately.

To be a competent police officer requires good training, sound supervision, and an attitude that reflects a daily intent to uphold the law as it applies to all those with whom an officer interacts; that is, complainant/victims, witnesses, and suspects.

If any of those conditions are absent then policing can descend to thuggery.

This article is about a recent, all too clear instance of thuggery in Canberra and the failure of AFP management to respond appropriately.

Sadly, this saga does not bring kudos to our Prosecutions office (ODPP) either.

Here’s what happened, up to a search and arrest

In early August last year Mr Smith (I am using fictitious names because of present and future court proceedings) faced three charges arising from Ms Smith making allegations to police.

One of those charges was that he, when face-to-face with her, made a threat to kill. Despite repeated requests by his solicitor the details of this alleged threat were never provided.

Following Mr Smith’s arrest (which is usual these days in domestic violence cases) bail was opposed by the Office of the Director of Public Prosecutions. The magistrate granted bail.

In early September Mr Smith pleaded not guilty to these three charges.

In the second week of October Ms Smith made a series of complaints to a specialist Family Violence team. These were not the police who dealt with the three August matters. It seems that she went to see the specialist team more than once.

For the first time she made allegations of being assaulted by Mr Smith going back several years. She also alleged what became a second “threat to kill” charge, his words being set out in a phone message of mid-September: “You fucking pig. You’re next, cunt”. (those words do not amount to a “threat to kill”).

Ms Smith apparently told the police that Mr Smith kept a weapon in his home and was an associate of bikie criminals.

At this point it is important to note that Mr Smith has a minor criminal record that includes fines for speeding and offences proved, but no conviction recorded. There is no offence of violence. There are no weapon offences.

Experienced police, properly supervised, would have seen the red flags and stopped to consider what to do next.

What should have happened is inquiries to verify Ms Smith’s allegations. That didn’t happen.

What should have happened is that the police contacted Mr Smith’s solicitor asking Mr Smith to attend for an audio visual recorded interview. They did not contact either Mr Smith or his solicitor.

What should also have happened is that police made inquiries within their own organisation’s intelligence data to check the likely truth or falsity of those allegations. They didn’t do that.

Instead of behaving sensibly. the police obtained a warrant from a magistrate to enter and search Mr Smith’s home.

There are many ways to conduct “enter and search”. The right way depends upon having good background intelligence to assess risk, that risk including that evidence might be destroyed or moved, the suspect might flee, or the suspect might be armed and a danger to the officers.

With nothing other than the unchecked assertions of Ms Smith (who the police knew to be in an unpleasant Family Law dispute with Mr Smith) the police broke down Mr Smith’s front door at 3am with around 10 officers.

Then they dragged him outside in his underwear and kept him in that undressed state for around an hour.

He suffered broken ribs.

I have these questions for the AFP:

• Where is the justification for a warrant when nothing has been verified?

• Please justify the use of 10 or so officers for this enter and search.

• Please justify the need for a pre-dawn entry.

• Please justify the humiliation and injury to Mr Smith. 

The searching police found some fireworks, a work knife, and a taser-like object. They had no evidence that these belonged to Mr Smith. They did not find any weapon, nor did they find evidence that Mr Smith had criminal bikie associates.

Here’s what happened after the arrest

Mr Smith was taken to the Alexander Maconochie Centre where he stayed 12 days until his application for bail was heard at the end of October. 

That he had to wait for his bail application reflects the seriousness of the offences with which he was charged, and the courts’ sensible policy that bail applications should be made well, and once only.

When Mr Smith’s bail application was heard, he was represented by his solicitor Peter Woodhouse, of Coda Law, and barrister Anthony Williamson SC, formerly the Deputy DPP and unsuccessful applicant to succeed former DPP Shane Drumgold who had to resign in the aftermath of the Sofronoff Inquiry.

Suffice to say, his legal team knew more about bail applications than the prosecutor from the ODPP. Mr Williamson took the court to the likely sentences if any of the charges were proved. He showed that if Mr Smith remained in custody that his pre-hearing imprisonment would be longer than any sentence he was likely to receive.

Mr Smith was granted bail.

Oh, what a tangled web she wove 

And there things would have rested until all the charges (from August and October) were heard sometime this year, except that Ms Smith had overplayed her hand and put it into a fire that should engulf her, but hasn’t yet.

What did she do? When she went back to the police in the second week of October she told them that she had injury photos and incriminating text messages from Mr Smith on her phone.

The police got this bit right. At their request she gave them her phone, which went off to technical services for downloading of all the data.

The results were not available when they searched Mr Smith’s home, nor at his bail hearing.

It’s rather obvious, in hindsight, that the investigating police should have asked for that download to be expedited before they sought a warrant.

Shortly after the bail hearing, in early November, Mr Smith’s solicitor lodged a complaint about the police conduct at the enter and search with AFP Professional Standards. 

Five months later they have not contacted either Mr Smith or his solicitor. Presumably they think that putting heads in the sand is the best way to resolve an instance of serious police thuggery.

That they have put their heads firmly in the sand is clear from their disinclination to follow through on the results of the phone download which were provided by technical services to the investigating police at the start of December.

The injury photos were not taken on the dates claimed by Ms Smith. Rather more interesting, to the point of being a serious criminal offence, was that the text messages allegedly sent by Mr Smith to Ms Smith were sent by Ms Smith to herself.

She’d fabricated the lot. She’d led the police on a merry dance. She’d lied to them repeatedly. That’s a crime. 

It’s a crime the police have known about for four months. They are yet to contact Mr Smith or his solicitor asking for a statement. So quick to act on unchecked allegations, so slow to act on a lay down misere.

Making it right, sooner rather than later

In a criminal justice system that is working smoothly, those phone download results with an accompanying memo of, “We’ve stuffed up and we need to fix it now” would have gone to the ODPP very promptly, possibly via the sidetrack of the AFP’s internal lawyers. 

Did that happen? Did Mr Smith get the happy Christmas to which he was entitled? He did not.

Somewhat belatedly, in the spirit of the end of year “do nothing”, the ODPP told Mr Smith’s solicitor just before Australia Day. 

The ODPP must share with us when it was told by the police. Did the police delay telling the ODPP? Did the ODPP delay telling Mr Smith’s lawyers?

It may be timely for the government to commission an independent audit of our ODPP for an objective assessment of its strengths and limitations. 

The ODPP must also share with us why it took so long to do the bleeding obvious: have all the matters before the court so that no evidence would be offered and they would all be dismissed, along with a discussion with Mr Smith’s solicitor on paying Mr Smith’s legal costs.

In case you are wondering why it is bleeding obvious: the evidence of every witness requires the fact finder to evaluate the content of the evidence and the believability of the witness. Ms Smith has zero believability.

It was impossible for any of the charges against Mr Smith to be proved beyond a reasonable doubt.

But they dragged on until late March when all charges were dismissed (no evidence was offered) and the Territory must pay Mr Smith’s legal costs

This saga, better called a debacle, could have been avoided if the police were properly trained, properly supervised, and always aware of their duties to those they are paid to serve.

“Doing the right thing” in a job that raises such a variety of challenges requires ready access to mentors, police with the experience and proven capacity to give good advice quickly.

I have a thought for police command: re-engage part time some of those career police officers that have been forced out these past few years, men and women who have served at all the ACT police stations, had a variety of roles, and were known for their quality mentoring of junior officers.

Avoid trouble by having them on call to guide today’s police. Ensure that serving police know about these mentors and use them.

The silence of AFP professional standards, and the delays within the ODPP to put things right, are disturbing: is it explained by acute embarrassment, by “it’s too hard”, or by, “let’s tough this out”? 

We must wait and see. 

I anticipate that this thuggery will cost us, ACT taxpayers, a tidy sum. An unjustified, trauma and injury-causing search, followed by 12 days of wrongful confinement doesn’t come cheap, especially when there’s no evidence, none at all.

Hugh Selby, a former barrister, is the CityNews legal columnist.