Reviewing Murder Investigations - And Room for Improvement in Tasmania
I found a very useful UK Home Office report entitled "Reviewing Murder Investigations: An Analysis of Progress Review from Six Police Forces" Home Office Online Report 25/04 by Catherine Nicol, Martin Innes, David Gee and Andy Feist. The report is of particular interest to me in the context of post-conviction reviews and the numbers of high profile Miscarriage of Justice cases involving murder. I am always keen to find out what seemingly went wrong in police investigations (where errors do become apparent) and hence the areas that I should pay particular attention to in the future.
One of the ways in which the police service in England and Wales has endeavoured to improve the quality of murder enquiries is by conducting reviews of investigations. In 1989, the Association of Chief Police Officers of England, Wales and Northern Ireland (ACPO) introduced a policy recommending that reviews be carried out on all murders that remain undetected after 28 days. The aims of the review process were to identify and develop investigative opportunities that will progress an investigation, to act as a form of quality assurance in relation to both the content and process of an investigation, and to identify, develop and disseminate good investigative practice. Further guidelines to enhance the conduct of reviews were issued in 1998 by the ACPO Crime Committee as part of the Major Incident Room Standard Administrative Procedures (MIRSAP). Whilst with WA Police, I was certainly aware of regular reviews being undertaken within that police service of major crimes. In fact, senior detectives from Internal Investigations under my Command were often used for such reviews.
In the UK, the concept of reviewing major crime investigations was developed from the Byford Report (1981) into the failures of the investigation into the series of murders committed by Peter Sutcliffe, the Yorskshire Ripper.
The 2004 UK report referred to above identified investigative weaknesses identified from the review documents and grouped them into a series of 6 themes:
- investigative response (initial actions at the scene; information gathering; witness and suspect management) (found to be by far the most commonly cited area of weakness);
- forensics (exhibit management and submission);
- record keeping (recording of Senior Investigating Officers' (SIOs) decisions, procedure and content; acquirement and storage of documentation);
- information management (document management and action adminstration);
- staffing and resources (staffing levels and the availability of a suitably trained and experienced team); and
- communication (internal, external and with the victim's family).
The report talks about investigative failures or system failures. It states that analyses of how, when and why serious systems failures occur, seem to support an account of flawed decision-making in high pressure situations, that are compounded by organisational norms and working practices (p.13). The report quotes Vaughan who suggested that certain "mistakes are systematic and socially organised, built into the nature of professions, cultures and structures".
The report talks about the two types of errors that occur in homicide investigations - "atypical high risk errors" and "recurrent low risk errors" (p.14). It states that errors and bad practice can creep into the work of investigators and in turn these can generate further errors and mistakes. This has been termed "compliance drift" (p.14), a concept which is said to be informed by "the normalisation of deviance". The report states (at p.14):
Vaughan identifies that complex organisations, operating in high-pressure environments, are particularly susceptible to a condition where, in order to meet goals and objectives, deviations from standard operating procedures are normalised and increasingly accepted as 'working practice' by the organisation's members. This process of normalisation is not malicious; it occurs as a matter of expediency and is about achieving performance targets and goals in difficult and pressurised situations. As a result, flaws can creep imperceptibly into the organisation's processes and tend to progressively compound each other.
Given my observations in more recent times, I was particularly interested in the report's observations in relation to record-keeping. The report stresses the importance of the Senior Investigating Officer (SIO) policy file or decision log, which should accurately reflect the important strategic and tactical decisions made by an SIO during the course of an investigation. It points out that the systematic recording of the SIO's policies is one of the most important aspects of the management of any murder investigation (p.31). It states that if policy files are skilfully prepared they should serve as a critical record of the rationale associated with each decision made, and the overall management of any major crime investigation (p.31).
In reviewing the judgement in the high profile Rayney case in WA in the last week or so, there are several references in Martin J's decison which refer to the WA Police "critical decisions log". WA Police have certainly done a lot in recent years to ensure best practice in major crime investigation.
The UK report went on to state (at p.31):
Apart from SIO policy files, there are a number of standard procedures in place for recording the progress of an investigation, and administering lines of enquiry, as detailed in MIRSAP. These include dedicated logs (such as crime scene logs and family liaison logs); questionnaires (such as house-to-house questionnaires); and several other official forms and documents. There are nationally agreed formats to which these documents should adhere, and guidelines detailing when they should be used. There are also numerous guidelines in place regarding how these documents should be completed and maintained. For example, crime scene logs, family liaison logs, and incident management logs should all contain fly sheets detailing nationally agreed procedures for completion, such as the timing, dating, and signing of entries.
The UK documented and tested practices contrast sharply with the practices that I have observed here in Tasmania in my recent review of the 2009 Sue Neill-Fraser murder case. For instance, there is no computerised case management system in use such as the HOLMES system in the UK or PROMIS (Police Real-time Online Management Information System), which is used elsewhere in Australia. Here in Tasmania, a typewritten Investigation Log or running sheet appears to have been the primary record of a major investigation at that time. The copy provided to defence counsel has no signed or verified entries and no indications that the document has ever been read or checked by a supervisor. As a result of RTI requests, it would also seem that, in the particular case under review, handwritten running sheets (not disclosed to the defence prior to the trial) have not been faithfully transposed onto the typed running sheet, including details of a key eyewitness. More alarmingly, when I requested notes or records of key briefings that were noted on the Investigation Log I was advised in writing that no records were kept of such meetings and the decisions had been recorded on a whiteboard. The response from Tasmania Police dated 18 September 2012 stated:
All investigation team briefings were verbal and tasks allocated on whiteboard (no permanent record exists).
Clearly no policy files or critical decision logs were maintained here in Tasmania in 2009. In fact, this response reminded me of the infamous "Sports Rorts Affair" in 1993/94 when then Federal Sports Minister Ros Kelly was unable to appropriately explain the distribution of federal sporting grants to marginal electorates held by the governing Australian Labor Party. It would be pleasing indeed to hear that processes have been enhanced within Tasmania Police in the last few years.
The situation in the Sue Neill-Fraser case appears even more concerning in relation to the recording of phone calls made by members of the public to Crime Stoppers and Tasmania Police. After several RTI requests and approaches to both agencies, it appears that there are no complete or collated records of the calls made by members of the public in relation to high profile requests for information at various times in the media, other than a relatively small number of calls, the details of which are paraphrased in the Investigation Log. There are also very limited records in relation to the door-knocking or house to house inquiries that were conducted in the Marieville Esplanade foreshore and Battery Point areas immediately following the incident under review. It certainly appears that there was no standardised approach to the timely questioning of residents or businesses in the area and no systematic follow up.
I have also been informed in writing pursuant to RTI legislation that there was no written Investigation Plan in the case under review, contrary to accepted best practice. For instance, Evans J in delivering his judgment in State of Tasmania v. Johnston  TASSC 60 (5 August 2009) at para. 84:
Principles fundamental to the investigation of criminal conduct include:
- Preparing an investigation plan and following that plan;
It also appears that statements were not taken from some potentially critical witnesses or possible Persons of Interest in the immediate vicinity of the crime back in late January 2009. I can substantiate such statements through my extensive research into the case, correspondence with Tasmania Police, and the responses to my numerous RTI applications.
There also appears to have been no independent review of the Sue Neill-Fraser case during its course (Sue was not arrested until August 2009, some seven months after the alleged crime). Despite her request to the Commissioner of Police for such a review, this did not occur.
It appears that Tasmania Police should consider following the lead of the UK and other jurisdictions in Australia in improving their investigative practices, particularly in relation to record-keeping for major crimes. A range of investigative deficiencies in this case, based on my honest opinion of what I have observed and discovered and my 30 years' policing and Anti-Corruption Agency experience, will be included in my book Murderers Amongst Us which I hope to have published shortly.