10. Inquiry / Investigation Process

This chapter only relates to matters classified as:

  • Complaint 2, ED 2, IRM 2, or Pursuit 2 (mostly handled in districts); or
  • Complaint 3, ED 3, IRM 3, or Pursuit 3 (mostly handled by Professional Standards).

Members must not perform the role of inquirer / investigator in a matter where they are a subject officer or witness officer as this is an insurmountable conflict of interest.

10.1. Process Summary

  1. The inquirer / investigator is given written direction contained on BlueTeam on the overall approach to the matter (i.e. to be dealt with as a potential breach of the Code of Conduct or as a potential offence, serious offence or crime; or both) when they receive the matter. The direction is to include a clear statement on the avenues/behaviours that are to be examined and those that are not, if any.
  2. The inquiry / investigation phase commences.
  3. The inquirer / investigator contacts the complainant and subject officer (if it would not jeopardise the matter).
  4. The inquirer / investigator handles the matter in the same manner and completeness as any matter reported to police involving a civilian subject. The extent of inquiry / investigation must be proportionate to the allegation or conduct.  Over-investigation is discouraged.  Inquirers / Investigators will be required to explain (in writing) any over-investigation of matters in terms of length of reports and time taken for completion.
  5. Inquirers / Investigators must identify all avenues of inquiry / investigation (such as witness accounts, CCTV footage, receipts, forensic evidence) and document these on the IAPro/BlueTeam running sheets. However, not all avenues need to be followed up if there is sufficient reason not to.  The reasons not to follow up must also be documented on the IAPro/BlueTeam running sheet in the interest of accountability.  For instance, if a decision is made not to obtain a witness account this must be recorded on the running sheet with an explanation.
  6. If an inquirer / investigator believes that a matter that is being dealt with as a Code of Conduct matter should, given the evidence, be dealt with as a potential offence, serious offence or crime, they must advise their manager. Advice from Professional Standards (including legal advice) can be obtained.
  7. The inquirer / investigator writes a Provisional Report. The Provisional Report must take into account any matters raised by the subject officer in mitigation, their service history, conduct history, and must include a values statement.
  8. The inquirer / investigator submits the Provisional Report to their line manager (a member of or above the rank of inspector) as the ‘authoriser’ of the matter. An inquirer / investigator, irrespective of rank, cannot be an ‘authoriser’ for that matter.

10.2. Timeframes

Tasmania Police is held accountable to the public and to members for the length of time taken in the inquiry / investigation process.  It is in the interests of all parties involved that matters are resolved in a timely manner.  It is expected that all matters will be resolved promptly and within the maximum timeframes stipulated which are:

  • Registration to issuing of Provisional Report to subject officer in a level 2 matter = 70 calendar days
  • Registration to issuing of Provisional Report to subject officer in a level 3 matter = 6 calendar months

In extraordinary circumstances a timeframe extension may be available.

10.3. Nature of Inquiry / Investigation: Code of Conduct or Criminal?

Abacus - Section 46(1) Decision & Method of Resolution table

If, during the course of an inquiry / investigation evidence is identified that indicates the matter should no longer be examined purely as a Code of Conduct breach, an inspector or above is to decide whether it is to also be dealt with as an offence, serious offence or crime.  Consideration will also need to be given to re-categorising the matter.

This is to be determined on a case-by-case basis and may necessitate the seeking of advice from Professional Standards.  If legal advice is required it is to be facilitated by Professional Standards unless otherwise approved by the Deputy Commissioner.

Members who make a voluntary disclosure must be given due credit for doing so.

10.4. Expected Extent of Inquiry or Investigation

Inquirers / Investigators need to apply the principles of procedural fairness at all times.

10.4.1. Proportionality

The extent of inquiry / investigation must be proportionate to the allegation or conduct.  The more serious the outcome is likely to be, the more extensive the inquiry / investigation and robust the evidence needs to be.  An audio interview is appropriate in conduct matters where the matter is complex and/or questioning will enable the breadth of issues to be covered efficiently.  Audio interviews should also be conducted if a more serious outcome is likely.  If a caution is to be given to a subject officer, the interview is to be audio-visually recorded as required by legislation and the Tasmania Police Manual (TPM).

Over-investigation is discouraged.  Inquirers / Investigators will be required to explain (in writing) any over-investigation of matters in terms of length of reports and time taken for completion.  The inquirer / investigator is to make a reasoned decision as to the extent of the inquiry / investigation taking into account the direction they have received and[43]:

  • the nature and degree of seriousness of the alleged behaviour;
  • the public interest and community confidence in Tasmania Police;
  • the requirement to ensure procedural fairness;
  • the resources required to conduct an inquiry / investigation measured against the potential outcome;
  • the liability of Tasmania Police or any other person or body to compensation or litigation; and
  • whether the member is willing to accept responsibility for their actions.

Examples

  • Level 2 Complaint – excessive force
    • speak to complainant
    • speak with subject officer – depending on the circumstances a conversation may suffice, a subject report may be required or an interview may be warranted
    • review Use of Force report
    • prepare concise inquiries report with determination and/or recommendations for section 43(3) Action, Continuing Professional Development, or no further action
  • Level 3 Complaintunauthorised access to, and release of, confidential information resulting in a perversion of the course of justice
    • speak to complainant
    • collect and examine evidence including audit of systems access
    • assess suitability or requirement for covert inquiries
    • interview witnesses
    • interview subject officer
    • prepare investigation report with determination and/or recommendations for section 43(3) Action, CPD, or no further action

Inquirers / investigators must identify all avenues of inquiry / investigation (such as witness accounts, CCTV footage, receipts, forensic evidence) and document these on the IAPro/BlueTeam running sheets.  However, not all avenues need to be followed up if there is sufficient reason not to.  The reasons not to follow up must also be documented on the IAPro/BlueTeam running sheet in the interest of accountability.  For instance, if a decision is made not to obtain a witness account this must be recorded on the running sheet with an explanation.  The inquirer / investigator is entitled to exercise discretion, but if in doubt, should seek advice from their manager.

Example

Charge-room incident – circumstances in which it would not be necessary to interview all members present

  • Constable X was one of six police officers in the charge-room.
  • A complaint was made and the CCTV footage viewed. Constable X was in frame but clearly not involved.
  • There is sufficient evidence available to deal with the complaint without the need for a statement from Constable X.
  • The running sheet should note that Constable X was present but that there is no need to interview her as the CCTV footage indicates she was off to the left and unable to see the incident.

10.4.2. Consideration of Investigation Plan in Some Matters

Inquirers into level 2 matters may include an investigation plan, however only if they consider it necessary or helpful for them in resolving the matter.

Investigators of level 3 matters should consider the inclusion of an investigation plan on the basis of the complexity, extent and nature of the intended investigation.  An investigation plan is not mandatory.

10.4.3. Running Sheets

Running sheets must be maintained for all matters involving inquiries or investigation.  Running sheets can be created on IAPro/BlueTeam or created separately and uploaded to IAPro/BlueTeam.

10.5. Contact with Subject Officer and Complainant

When speaking with, or obtaining evidence from any person, it is essential that any questions asked do not display partiality, prejudgement, predisposition or bias – ignoring or dismissing evidence without good reason can be evidence of bias.

10.5.1. Initial Contact with Subject Officer

The subject officer may be contacted by the inquirer / investigator (unless it would compromise the investigation) directly or through the subject officer’s manager. If the subject officer is contacted directly, their manager must be notified as a professional courtesy.  Depending on the categorisation of the matter the method of contact may be in person, by telephone, e-mail or in writing.  Although indicative outcomes are not able to be provided to the subject officer, they may be referred to the matrix below showing the potential outcomes for level 2 (inquiry) and level 3 (investigation) matters:

Abacus - Initial Contact with Subject Officer - Potential breack of Code of Conduct table

The subject officer will be reminded of Members’ Rights & Obligations.  An inquiry or investigation will be conducted in accordance with the principles of procedural fairness.

Subject officers will be provided with the allegation prior to interview unless not appropriate (e.g. likely to jeopardise the inquiry / investigation).  In a small percentage of level 3 matters subject officers may not be notified that an investigation is occurring as notification would hinder the investigation. Subject officers should be notified in a timely manner and their manager advised so that they can provide appropriate welfare support.  Care is to be taken to ensure that the subject officer is aware that they are not to speak about the matter to any witnesses or to take any action that might hinder the inquiry/investigation.

If an inquirer / investigator has a conflict of interest that should preclude them from involvement in the matter, they must provide written advice to their manager detailing the conflict.  The manager will then consider the situation and, if it is believed that an insurmountable conflict exists, another inquirer / investigator is to be assigned.

10.5.2. Subject Officer and Witness Officer Welfare

Tasmania Police is committed to ensuring that members’ welfare and support needs are properly catered for and they are treated fairly.  Inquirers/investigators and managers should be mindful of the potential impact of an inquiry / investigation on a subject officer or witness officer.

Where concerns are held, the subject officer or witness officer should be referred for support. Inquirers/investigators and supervisors should be mindful of the potential impact of an Abacus inquiry / investigation on a subject officer, witness officer and their family.  Where a need is identified the subject officer, witness officer or family member should be referred for support as described in Support for Members (and their Families).

10.5.2.1. Welfare Protocol for Subject Officers affected by significant decisions

This protocol provides instruction for the management of the welfare needs and support of members subject to inquiries or investigations and affected by significant decisions administered pursuant to the Police Service Act 2003.  Where appropriate this protocol, in full or in part, should be applied during inquiries and investigations involving state service employees.

Where a subject officer is to be affected by a significant decision under the Police Service Act 2003, such as being stood down, suspended, asked to show cause why their appointment should not be terminated, demoted or dismissed, the decision is accompanied or followed by the service of particular documentation.  The document is known as a ‘Notice’.  The following notices apply:

  • Notice of Stand Down; or
  • Notice of Suspension; or
  • Notice to ‘Show Cause’ (consideration of termination of appointment); or
  • Notice of Demotion
  • Notice of Termination of Appointment (Dismissal).

If a subject officer is to be served with any of the above Notices, the following must occur:

  1. The Commander, Professional Standards or a nominated manager must notify People Support of the intention to serve a Notice on a subject officer.
  2. The Officer in Charge, People Support, will determine whether a support person or welfare person should be present when service of a Notice is to occur and make the necessary arrangements. An inquirer / investigator / authoriser cannot be a support or welfare person for the subject officer.  To do so would create an untenable conflict of interest and be procedurally unfair.  Clarity of role is essential.
  3. The Deputy Commissioner, Commander of Professional Standards or a nominated manager must notify the Police Association of Tasmania of the intention to serve a Notice on a subject officer.
  4. The Police Association of Tasmania will determine whether they will have a representative present when service of a Notice is to occur and make the necessary arrangements.
  5. The service of any Notice will be deferred, if requested by People Support and/or the Police Association of Tasmania, to facilitate the presence of a nominated support person, welfare person or Police Association of Tasmania representative.
  6. The Commander of Professional Standards or a Professional Standards inspector is to notify the commander of the subject officer of the intention to effect the service of a Notice.
  7. Wherever possible, the commander of the subject officer is to make arrangements for a senior officer, preferably of the subject officer, to be available for support and facilitation of any necessary actions or arrangements within this protocol.
  8. If a family member or support person is not present when the service of a Notice takes place, thereafter an opportunity must be extended to the subject officer to contact a family member or support person.
    If the subject officer makes such a request, the member/s serving the Notice are to remain with the subject officer until the nominated person arrives.  Once they are present, the member/s serving the Notice can leave.
    If the subject officer does not request the attendance of a family member or support person, the subject officer’s rights and entitlements take primacy and their decision is to be respected.  Thereafter, the member/s serving the Notice can leave.
    Should the subject officer make a request for a family member or support person to be notified of the situation but does not want them to attend, that notification is to be facilitated.
  9. Upon the service of a Notice the subject officer is to be advised if the Police Association of Tasmania and People Support have been notified (if a representative of either is not present). Any objection is to be noted.
  10. If, when a Notice is served, it is intended to take possession of a member’s private phone (whether voluntarily or pursuant to legislation), where it is feasible, arrangements are to be made beforehand to expedite any forensic examination of the telephone and return it as soon as possible.
    At the time of taking possession of the telephone reasonable opportunity is to be provided for the subject officer or an investigating officer to extract key contact telephone number(s) from the telephone – cognisant that a risk of evidence being deleted or altered may render the risk unacceptable.  In cases where the risk is unacceptable, subject officer are to be advised they will not be able to retrieve the contact numbers.
    Where a subject officer’s telephone is taken possession of opportunity shall be provided to utilise a nominated telephone to make and/or receive calls in private for a reasonable time.  The nominated telephone number is to be communicated to People Support and the Police Association of Tasmania if neither have a representative present.
    Should the subject officer make a request for someone to be notified, that notification is to be facilitated.
  11. Where the subject officer is required to leave police premises, they must be provided reasonable opportunity to collect personal belongings prior to leaving.
  12. In addition to any offer of support or other service, the subject officer must be offered transport to their home address or other nominated location that is reasonable in the circumstances. If accepted, transport arrangements are to be facilitated.
  13. Running sheet notes are to be maintained and records made of any decisions and rationale for decisions made under this protocol, including the rationale for any departure from this protocol.
  14. If there is a significant concern for the welfare of the officer or an employee, the Deputy Commissioner will determine whether a media release or any public comment will be made.

10.5.3. Initial Contact with Complainant

Upon being allocated an Abacus matter the inquirer / investigator must contact the complainant or, if an IRM matter, the person reporting and inform them that they have carriage of the matter and provide their contact details.  This also provides an opportunity to clarify aspects of the complaint if necessary and to advise the complainant of the Abacus level at which the matter is being inquired into or investigated.

10.5.4. Updating Subject Officers and Complainants

Being kept informed of the progress of a matter is important for both subject officers and complainants or, if an IRM matter, the person reporting.  Inquirers / investigators are to update both complainants and subject officers every month.

Abacus - Updating Subject Officers and Complainants - diagram

Contact with complainants, the persons reporting and subject officers must be recorded on the IAPro/BlueTeam ‘Task’ (note this is only available once the matter has been routed back to the district from Professional Standards).  Members must adhere to the contact requirements unless it is clearly inappropriate because it may hinder an inquiry / investigation.

10.6. Methods of Obtaining Subject Officer and Witness Accounts

Accounts of events, including from the complainant and civilian witnesses, can be obtained by whichever method is deemed appropriate, e.g. via telephone, in person, by subject report or signed statutory declaration, audio or audio-visually recorded interview. Reference should be made to the sections directed interviews, Subject Officers’ Rights and Obligations and Witness Officers’ Rights and Obligations.  Templates are available here.

10.6.1. Interview Format Guides

Interview templates have been written to assist inquirers / investigators conducting interviews of subject officers (including criminal interviews, Code of Conduct interviews and directed interviews); complainants (including complaint interviews); and witnesses.  They are available here.

10.6.2. Complaints about Handling of Interviews

As with any investigative interview, at the conclusion the interviewee must be asked “Do you have anything to say about the manner in which you have been treated by any police officer involved in this inquiry/investigation?”

If the person has a complaint about the manner in which the interview was conducted one of the interviewing officers must take the person to a senior officer who is not directly involved in the matter. That senior officer is to complete the Register of Persons Interviewed and to take any other immediate action necessary, including taking a complaint if required in accordance with Abacus procedures.  The investigating officer is to update their IAPro/BlueTeam running sheet to reflect that a complaint was made and referred to another officer.

10.7. Inquirer / Investigator Absence

If the inquirer / investigator has an impending absence from their usual duties (e.g. to participate in lengthy courses or to take leave) they must consult with their manager regarding the progression of the matter in their absence.  Leave or extended absence will not be accepted as an excuse for inaction or a failure to meet the measurable time points.  If a matter is to be reassigned (temporarily or otherwise) then the inquiring / investigating member should contact the complainant and inform them of the change in circumstances.

  • Level 2 matters: must be reassigned if absence is greater than two weeks.
  • Level 3 matters: must be reassigned if absence is greater than four weeks, unless the exigencies of Tasmania Police do not permit it.

Conflict of interest factors must be considered.  If the new inquirer / investigator or the subject officer believe a conflict of interest exists they must notify their manager.

10.8. Obtaining Specific Advice

10.8.1. Operational Skills Unit

If an inquirer / investigator is seeking advice or is requesting a file review from the Operational Skills Unit (OSU), the following applies:

  • They may contact members of the OSU for verbal advice.
  • The officer in charge of OSU may require a written request for ad hoc or general queries involving written advice.
  • Requests for reviews or formal advice are initially discussed at inspector level to determine the nature of the request and its likely impact on OSU.
  • Advice provided by OSU that forms the basis of critical decision-making should be made in writing.

Following an inquiry / investigation referrals that are made to the OSU (e.g. for facilitation of CPD) will require agreement from the Education and Training Commander.

10.9. Integrity Testing

Section 48 of the Police Service Act 2003 authorises the Commissioner to conduct integrity testing of members:

(1) The Commissioner may conduct, or require an authorised person to conduct, a test of the integrity of a police officer if there are reasonable grounds to suspect that the police officer has engaged in, or is engaging in, or is likely to engage in, conduct that – (a) may constitute an indictable offence or any other offence punishable by imprisonment; or (b) is corrupt or seriously unethical.

(2) An integrity test may only involve an act or omission that, but for subsection (3), would be unlawful if – (a) it is reasonably necessary for the conduct of the integrity test; and (b) it is authorised by a magistrate.

(3) Despite any other Act or law to the contrary and subject to subsection (2), any act done or omission made in conducting an integrity test is lawful.

(4) The Commissioner may issue a certificate stating that on a specified date or during a specified period a specified person was authorised to conduct or participate in an integrity test involving a specified act or specified omission.

(5) An authorisation under subsection (2) or a certificate issued under subsection (4) – (a) is admissible in any legal proceedings; and (b) is evidence of the matters specified in the authorisation or certificate.

10.10. Requiring Financial Statements

Section 49 of the Police Service Act 2003 authorises the Commissioner to require members to provide financial statements:

(1) The Commissioner may require a police officer to provide a financial statement if there are reasonable grounds to suspect that the police officer has engaged in, or is engaging in, or is likely to engage in, conduct that – (a) may constitute an indictable offence or any other offence punishable by imprisonment; or (b) is corrupt or seriously unethical.

(2) The Commissioner – (a) for the purpose of allocating duties may require a police officer to provide a financial statement; and (b) is to cause to be published in the Police Manual a list of duties to which this subsection applies.

(3) A financial statement is to include details of – (a) assets and liabilities; and (b) income and expenditure.

(4) The Commissioner is to ensure that a financial statement provided under subsection (1) or(2) – (a) is only used for the purposes of this Act; and (b) is kept confidential, secure and in accordance with directions issued by the Commissioner.

Requests for financial information must be specific as to what documents are, or evidence is, required; and must be specific to an allegation.

10.11. Impact of Court Proceedings

10.11.1. Court Proceedings Applicable to Member

It is not ‘double jeopardy’ for there to be both court proceedings and administrative (Code of Conduct) proceedings, even if the facts in consideration are the same[44]. In Hardcastle v Commissioner of Australian Federal Police it was found that “the two proceedings are essentially different in character and result”.[45]

Where an Abacus matter involves a member being charged, the Deputy Commissioner will decide on a case-by-case basis whether finalisation of the Code of Conduct matters will occur concurrently or be deferred pending the outcome of the court proceedings.

10.11.2. Court Proceedings Applicable to Complainants

Some complaints relate to matters in which the complainant is subject to prosecution, for example a charge of assault police.  The complaint should be taken in the same manner as any other complaint.  While they are dealt with on a case-by-case basis, there is nothing to prevent the resolution of the complaint prior to the court proceedings – although in some instances it might be appropriate to suspend an inquiry / investigation pending the court outcome (being mindful that a statute of limitations might apply).

If the complaint has not been resolved prior to court proceedings the prosecution can be monitored by setting a ‘Task’ in IAPro.  The IAPro file can remain open for the duration of the court process and after a court decision is made the matter can be reviewed and any required further action may then be taken.  Any comments relevant to the complaint, made during the hearing, or referred to in the decision, must be considered by the inquirer / investigator.

While the IAPro matter remains open the duration of time taken in court proceedings is not calculated in any measurable time points that are reported on internally and externally.


Footnotes: 

[43] Adapted from Queensland Police Service ‘Complaint Resolution Procedures’ section 4.3, 1 July 2013

[44] DLA Piper, ‘Report of the Review of allegations of sexual and other abuse in Defence’, p143

[45] Hardcastle v Commissioner of Australian Federal Police 1984 53 ALR 593 [11]