‘COP THAT’

January 31, 2011

On November 11, 2010 I submitted a complaint to the OmbudsmanNT about Northern Territory Police accessing my personal telephone records.

The police investigation was part of a ‘witch hunt’ to try and identify the anonymous NT Police sources I quoted while reporting for the NT News on a drug squad raid at Darwin Lord Mayor Graeme Sawyer’s house.

The report can be downloaded by clicking on this link:

OmbudsmanNT final report

Or read the an edited version of  OmbudsmanNT report below.

Commissioner John McRoberts

Dear Mr O’Brien

RE: Complaint against Police

I refer to your written complaint to this Office dated 11 November 2010, regarding the Northern Territory Police accessing your mobile phone records without your permission or knowledge and your request to investigate whether that conduct was unlawful or not.

I accepted your request not to have the Ethical and Professional Standards Command (EPSC) deal with your complaint and my office made enquiries.

BACKGROUND

As you are aware on 20 October 2010 the Northern Territory Police executed a search warrant at a house situated in Wagaman. An NT News article written by you about this search, published on 21 October 2010, stated that information had been provided to the media by a police source.

That information included the identity of the owner of the house at Wagaman which was information not released to the media by NT Police.

The Police received a complaint from the home owner dated 27 October 2010 regarding leaked information. The EPSC had prior to that date launched an investigation to find the

Darwin Lord Mayor Graeme Sawyer

Darwin Lord Mayor Graeme Sawyer

Police Officer responsible. The Ombudsman was notified of the complaint from the homeowner on 5 November 2010.

The actions of a police officer providing information to you was a breach of Section 155 of the Police Administration Act. It was also potentially an offence under Section 76 of the Criminal Code:

’76 (1) Any person who, being employed in the public service or engaged to do any work for or render any service to the government of the Territory or any department or statutory body thereof, unlawfully communicates confidential information coming to his knowledge because of such position is guilty of a crime and is liable to imprisonment for 3 years.

(2) If he does so for purposes of gain he is liable to imprisonment for 5 years.’

If an offence was committed by a police officer providing information to the NT News the person obtaining that information could also have been guilty of the same offence as an accomplice, inciter, abettor or procurer.

A155 Communication of information

(1) A member shall not, without reasonable cause, publish or communicate any fact or document to any other person which comes to the knowledge or into the possession of the member in the course of his duties as a member and which the member has not been authorised to disclose.

Justin B. O'Brien - Multimedia Journalist

Multimedia Journalist - Justin O'Brien

Penalty: $1,000 or imprisonment for 6 months or both

First CCR search — 19 October — 22 October

On 21 October 2010 a Senior Constable from the Operational Intelligence Section (015) completed a Request form which was allocated to another Senior Constable from the Drug and Intelligence Division. The Request was for CCR and RCCR records for the period

19/10/2010 to 22/10/2010 for your mobile 0401442440. On 22 October 2010 the acting Officer in Charge of 015 authorised the request.

The Authorisation was electronically sent to Optus on 22 October 2010. Unfortunately the officer completing the electronic request made a clerical error and entered incorrect information into the document citing that the CCR and RCCR information was for an investigation into offences contrary to the Misuse of Drugs Act.

This incorrect information appears to have no effect on the Police meeting the Commonwealth requirement for Authorisations. The request accurately recorded the enabling legislation (Section 178(2)).

Subsequently, Police noted their error and corrected their records identifying section 155 of the Police Administration Act as the reason for seeking the carrier (Optus) records. They also advised Optus of the mistake to ensure that no record existed linking your phone number as having some connection with the misuse of drugs.

The Police on obtaining your phone records determined the name of a Police officer believed to have breached section 155 of the Police Administration Act. Details for phone numbers showing on your records were sought from the carrier to identity the subscriber to that number.

The search of your charge records to this point was limited to a four day period during which it appeared that a Police officer provided information to you. Your records identified a Police officer’s phone number. The records showed two calls from your number to the officer’s and one call to you from the Police officer.

The first call on the records between the two numbers showed that the contact was initiated by you.

Ms Richards found NT Police acted 'unreasonably'.

I am satisfied that the records and evidence show that the first search of your call charge records was lawful and was reasonably necessary for the investigation of suspected offences. Those offences could have been breaches of Section 155 of the Police Administration Act, a breach of Section 76 of the Criminal Code and possible breaches of Sections 12, 43BG, 43BH, 43B1 or 104 of the Criminal Code. Further investigation by NT Police to find out who used the phone sets matching the subscriber numbers was warranted.

The Second CCR search — 22 September 2010 — 27 October 2010

On 28 October 2010 a Senior Constable from 01S, sent another request for your records. The request was only for your CCR records, ie, records of whom you called, not who called you. However the period was expanded seeking records from 22 September 2010 to 27 October 2010. The authorising officer was the Territory Intelligence Coordinator (TIC). The electronic Authorisation for your records was sent on 01/11/2010 to Optus. The Authorisation was given by a Senior Sergeant whom I am satisfied had a lawful delegation under the Telecommunications (Interception and Access) Act.

Also on 28 October 2010 the Police applied for and obtained CCR’s (22/09/10 to 27/10/10) for a Police officer believed to have been responsible for the information leak.On 5 November 2010 this officer was interviewed and on 8 November 2010 the officer was disciplined (section 14(c) of the Police Administration Act) for not reporting contact with you.

Investigation Outcome

This investigation revealed that the Police made two (2) applications to Optus to obtain your CCR’s, the initial application included obtaining your RCCR’s.

I have seriously considered your view that Section 180(4) of the TIAA – Authorisations for access to prospective information or documents – applies to Section 178. Section 178 is the section of the TIAA that Police relied upon to obtain your records.

Prospective information (as referred to in section 180) is not defined within the Act, however it was described by NT Police as accessing real time data. In researching a 2007 submission to the Senate Legal and Constitutional Affairs Committee I found prospective data being described as information that comes into existence during the life of an authorisation. The Telecommunications (Interception and Access) Act 1979 Annual Report for the year ending 30 June 2009 describes prospective data as data that comes into existence during the period for which the authorisation is in force. It does not include data that came into existence before the authorisation was in force. The disclosure of prospective data may be authorised by a criminal law-enforcement agency when it is considered reasonably necessary, by an authorising officer, for the investigation of an offence with a prison term of at least three years.

The seeking of your phone records in the second instance (starting from 22/09/2010) was in my view unnecessary. At the time of this second request the Police Officer believed to be responsible for the ‘leak’ had been identified. You had identified yourself in the article you wrote as a possible accomplice.

The Police informed me that the second search of your CCRs was to find out what communication occurred between the Officer and you before and after the calls on 20 October 2010. They said that you and the officer connected to the number you called on 20 October might have been close friends regularly in touch which would tend to dilute anything sinister about the calls on 20 October. I was also told that it was necessary to have the records to be ready to challenge the officer concerned when he was interviewed in case he claimed to be regularly in touch with you as a friend. I reject that latter explanation as a sufficient reason justifying the extent of the records requested.

The officer concerned was interviewed three days before Optus provided the CCRs which causes me to discount the “friendship” defence as a sufficient reason. I also consider that even if the CCRs for a five week period showed that your phone and the officer’s phone were connected often, such records would not prove who made the calls and what was said. Those records for a five week period were not capable of disclosing anything of probative value beyond what  had  already been obtained by the first search.

Although I am satisfied that the second search of your CCRs was lawful and authorised under Section 178 of the Telecommunications (Interception and Access) Act that search was “unreasonable” within the meaning of Section 101 of the OA. Police have powers and they have a discretion to decide when and how to exercise those powers. They also have a duty to respect the human rights and dignity of the citizens they serve and protect. There must be a balance maintained and intrusive powers ought not to be exercised unless it is reasonably necessary to do so. In the instance of the second search of your CCRs for a period of five weeks it is my opinion that the intrusion into your privacy was not reasonable even though it was lawful.

The Commissioner of Police disagrees with my view. His view is that the second request to Optus was in accord with “standard investigative techniques … to establish whether contact between parties is an ongoing occurrence and whether there is a pattern to the conduct…”.

I have not accepted that view in your case because any contact between you and a police officer prior to the execution of the warrant, on 20 October 2010, was of no relevance to an alleged offence of unlawful disclosure of an event which happened on one occasion only, on either 20 or 21 October 2010. I have given the Commissioner of Police my reasons for the view I hold and I include an extract of my letter to him:

“In my opinion to access phone call charge records for a period of three weeks before the event which precipitated the offence under Section 155 of the Police Administration Act was unreasonable. It was in my view unreasonable because any interaction or communication between Mr O’Brien and any police officer prior to the execution of the warrant on the house in question was not capable of producing any evidence that could logically have carried any probative value. Citizens of the Northern Territory have a human right to privacy, recognised by International Conventions and Declarations, and to some extent recognised by the Common Law.

There was no proportionality between the seriousness of the offence being investigated, the value of any information likely to be obtained and the degree of invasion of Mr O’Brien’s human right to privacy. It is the failure to balance the value of his rights against the outcome sought or potentially available that amounts to the exercise of the discretion to access his records being, in my view, unreasonable. In many other cases the investigative techniques you describe might well shift the balance and make the needs of law enforcement or prevention of harm reasonably override a person’s right to privacy. I do not believe it was reasonable to do so in this instance.”

RECOMMENDATIONS

I made four recommendations to the Commissioner of Police. The Commissioner of Police has accepted two of them as follows:

1. The Commissioner of Police will issue a general order to make it patent that access to a person’s telephone call records must be authorised by a member of the rank of Superintendent or above.

2. The Commissioner of Police will issue a new authorisation under the Telecommunications (Interception and Access) Act replacing the exiting authorisation of Commissioner Paul White authorising only officers of the rank of Superintendent and above only to make requests for telephone call records under the Telecommunications (Interception and Access) Act.

I note that you have approached my office concerning a response from NT Police to a request by NT News under the Information Act for the release of documents. It is correct that under the Information Act documents obtained by EPSC to investigate a complaint against Police that is covered by the Ombudsman Act are exempt from disclosure. That exemption arose first when NT Police notified the Ombudsman of the Lord Mayor’s complaint on 5 November 2010. No document before that date would be covered by the exemption of documents and information created or obtained under the Ombudsman Act.

Other exemptions may be applicable but not the exemption created by Section 49C of the Information Act. I do not know what documents were requested under the Information Act and I cannot investigate any matter arising under the Information Act unless it is referred to me by the Information Commissioner.

If you require any further information please contact the Assistant Ombudsman, Bert Hofer.

I advise that the notice served relating to disclosure of the draft of this report remains valid.

It does not apply to this report.

CAROLYN RICHARDS

Ombudsman

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‘NT POLICE SHAKE-UP’

May 14, 2010

Northern Territory Police Commissioner John McRoberts has moved to put his personal stamp on the organisation he took control of in December last year. Five months in and an

NT Police Commissioner John McRoberts

Northern Territory Police Commissioner John McRoberts

internal shake-up of the Northern Territory Senior Police ranks is underway.

’85 to 90 percent of people got what they wanted’ – said a source within the Senior ranks.

Commissioner McRoberts is an advocate of career development and the idea behind the shake-up is to give Superintendent’s the chance to nominate and prove themselves in jobs, they want to do.

‘You have to give the Commissioner his due’, a Superintendent said on condition of anonymity. ‘When McRoberts arrived he invited us in for a chat individually and said – What do you want to do? Tell me where you want to go.’

The style of McRoberts is in sharp contract to the former Police Commissioner Paul White. During the eight years Paul White was in-charge according to a source – ‘people were just tapped on the shoulder and told you’re going!’

‘Anything to do with White is out’ said another source. Some changes are obvious, the NT Police business cards have been changed to a more modern look, frontline Officers are now required to wear reflective vests at all times, Officers can now choose either to wear the ‘bush hat’ or traditional Police hat and six monthly ‘Operational Performance Reviews’ have been abandoned.

A winner in the restructuring is Superintendent Jamie Chalker. Currently the Officer in Charge of Darwin Police Station. Chalker is moving to become Commissioner McRoberts Chief of Staff.

Superintendent Chalker is regarded as future Police Commissioner material. Chalker’s father, Robyn Chalker was at one stage the Commander of the NT Major Crime Unit. But, importantly like it or not – Jamie Chalker has the confidence of the lower ranks.

‘.. he’s switched on .. you’re not going to be able to pull the wool over his eyes .. he’ll be able to deal with a lot of the shit’ according to an Officer at the Darwin Station.

NT Police Chief of Staff, Superintendent Jamie Chalker

NT Police Chief of Staff, Superintendent Jamie Chalker

Chalker replaces Superintendent David Pryce, the current Chief of Staff who is joining the Australian Federal Police and will be promoted to the rank of Commander. Other notable moves include Superintendent Tony Fuller the current head of Disaster Victim Identification (DVI) who is moving to run Palmerston Station and Superintendent Kris Evans will take over the Major Crime Unit.

While the shake-up by McRoberts in the Senior ranks is significant, a review being undertaken by Assistant Commissioner Mark Payne and Commander Rob Kendrick has the potential to cause a mutiny within the serving ranks.

Payne and Kendrick are undertaking a review that will restructure the way Police in the Darwin Region operate. Ideas include: amalgamating the newly reformed traffic branch within another Unit, combing the Commanders Tactical Team, Youth Crime and Domestic Violence Unit into one Unit overseen by a Senior Sergeant who reports to a Superintendent and joining the Casuarina, Palmerston and Darwin Detectives into one Unit based in the City.

Creating one Detective Unit could undermine the street knowledge and experience of Investigators who would be required to chase bad guys in suburbs they’re not familiar with, thus undermining their effectiveness.

One Detective said the proposed changes ‘would share the work load at night, but it’s been tried before and it didn’t work.’

Assistant Commissioner Mark Payne has reportedly been on a listening tour around the three main stations – Casuarina, Darwin and Palmerston. Payne allegedly told one meeting – ‘.. we (the Commissioner) want to implement these changes in a month’. The response from a 15 year veteran was ‘hold on .. we’ll need six months at least’.

Commissioner John McRoberts has hit the ground running. So far it’s been a Carl Lewis performance over the first 100 metres, but only time and the clock will tell if he finishes the marathon without suffering a few blisters along the way.


DARWIN ‘FIRE BOMBING’

February 6, 2010

Link to a ‘Live Cross’ with Sky News Australia – while covering the ‘Fire Bombing’ of a Territory Insurance Office in Darwin NT, Australia.

=============================================================================================

'Firemen'

'Mopping Up After The Blast'

The first emergency workers to arrive were confronted with a horrible scene.  A dozen badly burnt victims .. clearly in a lot of pain.

(A woman screams) Ahhhh…. it’s hurting even more…

The concrete pavement became a make-shift medical clinic.

(Another woman with burnt arms screams) ‘…. I want to kill him .. ‘

 “I want to kill him” – yelled this woman .. as bystanders tried to comfort her .. frozen peas on her shoulders, trying to cool her down.

 (A Police Officer orders people back) ‘.. Behind over there behind the shelter ..’

 Around 11 o’clock .. witnesses say the fire and explosion occurred – when a man pushed a shopping trolley loaded with three ‘jerry cans’ full of petrol and fireworks through the front door of the TIO Office.

(Water is pouring out of the Territory Insurance Office sprinklers) ‘ .. Shhhhhhhhhh … ‘

The man .. lit the firecrackers and then ran.

(Tim Ryan – Witness) “It was like a number of fireworks going off, maybe like ten twenty like – bang bang bang.”

Six TIO staff and several customers were inside when the home made bomb went off.

Near-by Woolworths employees and shoppers raced to rescue those trapped.

(Steve Cordona – Witness) “.. hectic, hectic, people didn’t know what was going on just waiting for people to walk out the door ..”

Fire fighter’s using breathing apparatus searched the burning office – after reports, someone was still inside.

(Bradley Fong – NT Fire Service) “The jerry cans were still burning as we were entering the building.”

The Crime Scene

'The Crime Scene'

(Phil Rout – NT Fire Service) “Very limited visibility .. um probably only a foot in front of your face.”

St John Ambulance Officers transported 14 people to Royal Darwin Hospital.

Most suffering burns and severe injures to their lungs from inhaling the toxic smoke.

(Dr Len Notaras – Royal Darwin Hospital) “We have 4 people in the high dependency ward suffering burns, the worst to 15% of her body – another half dozen are being treated for smoke inhalation.”

As a precaution ..

(Sound of bomb detection robot driving along) ‘Vhhhhhh…..”

.. the Territory’s Response Section bomb detection unit inspected the area – and gave the all clear.

(Justin O’Brien – piece to camera) “Immediately after the explosion – a local man turned himself into Police at the near-by Darwin Station. He was uninjured – Investigator’s describe him as a disgruntled customer.”

(Commander Colleen Gwynne – NT Police) “This is not a terrorist incident – it was definitely a dissatisfied claimant. We have that person in custody at the moment.”

The Territory Insurance Office is reviewing it’s security procedures .. at the three other Darwin Offices.

(Richard Harding – CEO, Territory Insurance Office) “The key message I want to leave with people is this appears to be an isolated incident. It doesn’t appear to be any ongoing threat as the suspect is in custody.”

Late this afternoon .. forensic investigators removed the shopping trolleys used in the fire bombing.

Police are yet to question a 45 year old man in relation to the fire bombing.


‘THAT PEDOPHILE THING’

November 2, 2009

Hung-over like a mongrel three-legged dog with no tail – I stumbled into ‘Crazy Kim’ English language school

'The English Teacher'

'The English Teacher'

wondering what I had committed myself to the night before.

I’d been drinking at ‘Crazy Kim Bar’ in Nha Trang, a coastal holiday town in Vietnam. Now, 7 hours later I was the official beginner’s English teacher. Walking into the classroom the 30 plus students – aged between five and 50 years old were just as surprised to see me, as I was nervous and unsure what to do.

The regular Vietnamese teacher then handed me a thick book and said .. ‘just work from the text, write the exercises on the blackboard – don’t worry, they can’t understand you. It’s a beginner’s class .. they don’t understand English’. So, I was on safe ground!

The free English language school was established by a tough, confident woman with a flirtatious smile named Kimmy Le. Aka: ‘Crazy Kim’. Ever the businesswoman, attempting to teach the class how to read an English menu .. she yelled: ‘Make sure you teach them about the Government and restaurant taxes!’

'The Students'

'The Students'

Her story is one of survival, passion and smarts.

As a teenager she and her older brother fled Communist Vietnam onboard a wooden boat packed with fellow escapees. After three months at sea – the Le’s found dry land, refugee status and safety in Holland. A University education led to meeting a boy, a short marriage in Canada and a new passport.

It was past mid-night .. we sat chatting at the Bar when Kim said: ‘… I did it because of that pedophile thing!!!’. It didn’t need explaining.

Now in possession of a Canadian passport and no longer married Kim returned to Vietnam and started teaching Information Technology at the Nha Trang University. What caught her attention were the children living on the beach – selling what they could, sometimes themselves in order to get enough money to buy food.

According to Kim – her lunch times were spent at the beach, warning boys and girls about the men who gave them money for sex. It was one woman’s personal war on pedophiles. 

She soon quit teaching – and brought a rundown bar around the corner from a ‘woman holding a baby who was desperate to sell’, according to Crazy Kim – ‘She wanted four million dong .. I talked her down to 2 and a half million dong’  .. so began her career as bar owner and anti-pedophile campaigner. 

'Crazy Kim'

'Crazy Kim'

English classes were taught to the street kids inside the bar.

‘I slept on the pool table for a month and had a shower installed in the toilet’ .. Kim remembers: ‘.. I started playing music and the place became packed’.

Outgrowing her beginnings – the now Crazy Kim Bar has a dance floor, three bars, a garden area and two classrooms.  

“Hands off the kids” is her motto – as she rides around Nha Trang on her pink motorbike nicknamed the ‘PEDOPHILE BUSTER’.

But, I’m quickly reminded it’s still Vietnam and the old ways still exist. A police officer came in demanding to see the staff list. One new staff member wasn’t on the list – a fine, it was then decided the music was too loud and the lights too low. The police officer demanded $100 US – a sort of on the spot fine to clear up the breaches.

By now the dozen female Dutch students in Vietnam to experience the culture decided with the European dance hits no longer playing, it was time to go and so followed the five Aussies blokes who had been gazing the girls. With the western dollars gone home, Crazy Kim stood her ground and refused to pay. The police officer left empty handed, we stayed and drank, no music and with the lights a little brighter.

'Saved'

'The Children's Wall'

The lights shone on a trophy wall of sorts at the entrance to the Crazy Kim Bar. Photographs and headshots of the children Kim had saved, the people who had helped and a brief outline of Crazy Kim’s story.

‘People want me to write a book and make a movie about my life’ she said. I asked what she would do with the money and without hesitation Crazy Kim answered: ‘.. I’d build a new English school for the kids’.

If Crazy Kim is willing to accept a hung-over mongrel three-legged dog with no tail like myself .. she’ll have no shortage of English teachers.  

 

 
'The Pedophile Buster'

'The Pedophile Buster'


‘WILDFIRE’

May 14, 2009

(An eyewitness account of the Santa Barbara Wildfire as strong winds threatened to blow the blaze into the City.)

Santa Barbara is best known as a weekend escape from the smog and traffic of Los Angeles. Two hours up Highway One .. SB – ‘White, Quite and Wealthy’ .. I’d never ventured far from the tourist strip until a Wildfire threatened to engulf the City this week.

Employed by CBS News to film, edit and transmit footage for Correspondents Manuel Gallegus and Hari Sreenivasan – it was a ticket to the frontline of the Wildfire.  

'Give me your left shoulder forward!'

'Give me your left shoulder forward!'

Unlike Bushfires (Australian’s call Wildfires, Bushfires) I’d covered in Australia – most notable by their constant hot strong winds, the Santa Barbara fire was different. It rested during the day and came alive with the afternoon breeze, Santa Barbara locals call ‘Sundowners’. In Hawaii it would the name of a cocktail.    

The odd thing about covering fires in the USA is the unlimited access given to the ‘media’. While police road blocks prevented residents from checking on their homes – a flash of a your media credentials in Santa Barbara and you were free to travel anywhere in the fire zone.

In Australia – a Police road block is a road block and no amount of ‘fast’ talking will get you through. Thank God for the First Amendment – Freedom Of The Press.

But it’s a Freedom you don’t abuse. Covering a Malibu Wildfire years ago – a Police Officer waved me through a road block saying: ‘You now have the right to go and get yourself killed!’ And he was right.

It’s not until you drive the winding backstreets, roads, terraces and drives in the foothills of Santa Barbara that you comprehend the City’s wealth. Old money, new money .. does it really matter, it’s still money. 

(A tour through the burnt out remains of two Santa Barbara homes.)

No matter how many Bushfires, Wildfires or House fires I’ve seen – it still amazes me what survives and what melts. I’ve seen letter boxes untouched while to house is reduced to a concrete slab.

'The Burnt-Out Remains Of Two Houses'

'The Burnt-Out Remains Of Two Houses'

 

'Cooked'

'Cooked'

 

 

But, one thing that’s forever constant is the brave determination of fire fighters to save property – houses, cars, boats, sheds .. whatever. Filming from a house threatened by the Wildfire on Day Two – a Fire Captain told me: ‘We’re going to stand here and fight it .. we’re not going to let it get this house.’ They were unforgettable words in the face of frightening uncertainty. We left as the sky turned black or  as we say ‘from day to night’. The house survived albeit a little smoky, but unscratched.      

Here unlies a Wildfire secret not spoken about. The decision on what house will be protected and what house will not. Officially, houses cleared of vegetation are easier to defend than ones surrounded by trees and grass – and professional fire fighters make that judgement. 

Personal involvement, friendship, influence and association also play a part. At one house surrounded by trees and grass in the SB foothills, the owner admitted the firemen were there because they were his friends. Fair or unfair .. if you’re going to risk your life fighting a fire, you’d prefer to do it for a friend. 

When I told this story to a mate whose house is in a known LA City fires zone, he said .. ‘Thanks, I’d better go and make friends with some fire fighters.’