Memorial 1: Memorial Tree planted at NSW Police Academy, Goulburn
Memorial 2: Memorial plate on the front outside wall of Leeton Police Station. Dedication done on 30 November 2015. Photos below.
About 2.15pm on 30 November, 1988 Constable Wilson was on duty at the Leeton Police Station when she suffered a severe gunshot wound to the head when another member’s service revolver discharged. Although treated at the scene by colleagues until the ambulance arrived, she passed away at the Wagga Base Hospital at 5.45pm the same day.
The constable was born in 1968 and joined the New South Wales Police Force on 9 May, 1988. At the time of her death she was stationed at Leeton.
Sharon is mentioned on the Police Wall of Remembrance
2 December 1988
“CHARGES POSSIBLE OVER SHOOTING
SYDNEY: The NSW Police Commissioner, John Avery, will decide whether charges should be laid against a constable allegedly involved in the shooting death of her 20 year-old colleague on Wednesday.
A police spokesman said yesterday a team of detectives was waiting to interview the young officer over the death of policewoman Sharon Wilson at the Leeton Police Station, in the state’s Riverina district.
He said results of the investigation would be forwarded to Mr Avery for consideration.
A police spokesman said the detectives — including two from Sydney’s Internal Affairs department, two from homicide, a ballistics expert and a police psychologist — were waiting to talk to the 19-year-old constable.
Probationary Constable Wilson was shot in the head by one bullet from a service revolver while on duty at Leeton Police Station, at 2.15pm on Wednesday.
She was rushed to Wagga Base Hospital, but died 3 1/2 hours later.
The policewoman awaiting questioning had been treated for shock and was being cared for by friends and welfare personnel, the spokesman said.
Detectives hoped to talk with her last night.
Miss Wilson, of Uralla, in the Northern Tablelands, was well known in the small community. She was regarded as a fine athlete and her 188cm frame was well known in the local basketball league.
Miss Wilson was studying visual arts at the Riverina Murray Institute of Higher Education in Wagga.
Her body will be transported to her home at Uralla, where a funeral will be held at 1pm on Monday.”
SYDNEY: Junior police officers could be made to leave their guns at work after a young constable accidentally killed his best friend while cleaning his service revolver at home on Monday.
An internal police investigation into the shooting would look at the controls on probationary constables’ possession of weapons, the NSW Minister for Police, Ted Pickering, said yesterday.
Constable Andrew Pearce, 20, was cleaning his .38 service revolver in the bedroom of his Greystanes home in Sydney’s west at noon on Monday when the gun discharged and hit his friend Andrew James McDonald in the chest.
Mr McDonald, a 20-year-old bank teller from Greystanes, died an hour later in Westmead Hospital.
The incident was the second fatal shooting by a probationary constable in the past four months.
Last November Probationary Constable Sheree Schneider, 19, ( ProCst # 60370 ) accidentally shot Constable Sharon Wilson in the head at Leeton police station in the Riverina region. The young constable now faces a manslaughter charge.
Acting Police Commissioner Angus Graham refused yesterday to comment on Monday’s shooting and was unable to say whether Constable Pearce, an officer with one year’s service, would be charged over the incident.
He said the fatal shooting was the subject of a full investigation by the police’s Internal Affairs Department.
“When we have these incidents we always review our arrangements,” he said.
A policewoman fatally wounded a colleague with a shot from her service revolver which she believed was empty, the Leeton Local Court, in south-west NSW, heard yesterday.
Sheree Ann Schneider ( ProCst # 60370 ), 20, of Pine Avenue, Leeton was charged with the manslaughter of Constable Sharon Louise Wilson, 20, at Leeton Police Station on November 30 last year.
Constable Wilson died of head injuries at the Wagga Wagga Base Hospital as a result of the shooting.
Constable Harvey McRae told the court that he was sitting at a computer terminal when he heard the firing pin of a police revolver strike the empty chamber. Constable Wilson had said, “Oh God, don’t do that. You scared the living daylights out of me”.
He said Schneider pointed the revolver toward Constable Wilson and said: “No, it’s empty, see?” The gun then discharged.
Schneider said she went into the sergeant’s office and re-loaded her gun. The court heard that four live bullets and one spent one were later removed from the revolver.
ALBURY: A policewoman who fatally shot a colleague has been cleared of manslaughter after a hearing in the Albury District Court. Sheree Ann Schneider, 20, of Pine Ave, Leeton, was charged with the manslaughter of Sharon Louise Wilson, 20, of Leeton, who died from injuries received in the shooting.
Constable Wilson was shot in the head while speaking on the telephone in the communications room of Leeton police station on November 30 last year.
Miss Schneider gave evidence at the committal hearing on Friday.
She said she had gone to the sergeant’s office where she had unloaded her special issue five-shot .38 service revolver. She told the court she was sure five bullets had fallen from the revolver’s cylinder and into her hand.
Miss Schneider said she had left the bullets in the office and returned to the inquiry counter area.
Thinking the gun was empty, she “dry fired” it.
Miss Schneider said Constable Wilson had become frightened and said: “Oh God, don’t do that. You scared the living daylights out of me.”
She had said to Constable Wilson: “No, it’s empty, see” and then pulled the trigger “to reassure her she had nothing to worry about.” The gun had discharged.
Asked by her counsel, Mr John Dailly, what she had thought when the gun discharged, she said: “I couldn’t believe it! I was sure I had counted five bullets.”
It was not until she had returned to the sergeant’s office that she realised she had made a mistake.
Although Miss Wilson had been shot, Miss Schneider said she was unaware at the time the gun had been pointing at her colleague.
Miss Schneider said she had returned to help Miss Wilson, who lay on the floor bleeding profusely from a wound to the left temple.
She said she placed both hands over the wound to try to stop the bleeding.
The court was told Miss Schneider had received 200 minutes pistol training at the police academy and had been issued with the smaller five-shot revolver after failing her first shoot with the larger six shot model.
Mr Dailly said the shooting had been an accident.
“It was totally unintended, unexpected and unforeseen,” he said.
In discharging Miss Schneider, Magistrate Barry Wooldridge said she had made a “great mistake” when counting the bullets. But the fact remained that there was no intent on Miss Schneider‘s part, no animosity between the two and no evidence she had deliberately pointed the gun at Constable Wilson.
In New South Wales, at Leeton police station on 30-Nov-1988, a junior policewoman produced a pistol and shot dead another officer. Sheree Ann Schneider claimed it was an accident. Satisfied the pistol was unloaded, she pulled the trigger without looking where the gun was pointed. The charge of Felonious Assault was dismissed in the lower court on 28th July 1989 under section 41 (vi) – the presiding officer ruled that no jury would convict. Use Of A Firearm In Disregard For Another Persons Safety was dismissed on 27th April 1990. The female did not even lose her job, presumably her fellow officers hope she will be more careful in future.
Court Ignores Duty
It is axiomatic with all weapons training that they never be pointed at anyone unless they are intended to be used —even in jest. Deliberately pulling the trigger without looking where the .38 pistol was pointed was criminal irresponsibility. Sharon Wilson was killed as the result of criminal negligence; a failure that should not be tolerated from any citizen, much less a police officer. Not knowing the gun was loaded is no excuse for anyone, least of all a trained professional. For the courts to fail to penalise this action is to commit more crimes; the denial of the importance of duty and the magnitude of taking a life.
The Law Repeats The Role Of Indulgent Parents
Schneider escaped penalty by adopting the infantile excuse that she was merely the hapless victim of the inadequate police weapons training program; that this was accepted by the authorities is not an aberration. Trial for murder is no longer a matter of resolving fact; it has become a re-enactment of the spoilt child caught by their indulgent parents; if the miscreant can deflect blame while generating sympathy then all is forgiven.
About 5.50pm on 25 October, 1988 Constable Sinclair suffered severe head and internal injuries at North Parramatta whilst attempting to arrest an offender following a domestic dispute. Earlier, police had been called to assist ambulance officers at the disturbance in Jeffrey Avenue. The offender, who was bleeding from the arm, had locked himself in his truck. While Constable Sinclair and Constable Cummins spoke with him, he continually threatened them while revving up his truck engine. As the police approached the offender wound up his window. The police then smashed the window and attempted to remove the driver from the cabin of the truck. With both police standing on the step of the truck, the offender began to drive along Jeffrey Avenue.
Constable Cummins was able to get off the step, but due to his falling to the roadway, was unable to assist his colleague.
The truck’s speed increased with Constable Sinclair still partially inside, and partially outside, the cabin. The offender then drove across the roadway where the vehicle collided with a tree, crushing the constable.
He was conveyed to the Westmead Hospital where he died a short time later. Constable Sinclair was awarded the Commissioner’s Valour Award for Bravery and Devotion to Duty.
The constable was born in 1959 and joined the New South Wales Police Force on 8 December, 1984. At the time of his death he was attached to the Parramatta Highway Patrol.
Pre Police, Brett worked for QANTAS
The Sydney Morning Herald 27 October 1988 p36
The relatives and friends of the late BRETT CLIFFORD SINCLAIR (Cons NSW Police Force), of Eastwood, are invited to attend his funeral, tomorrow (Friday), to leave St Anne’s Anglican Church. Church Street. Ryde., 11am.
At the conclusion of the service the funeral will leave for the Northern Suburbs Crematorium.
Crimes Amendment (Murder of Police Officers) Bill 2007
Extract from NSW Legislative Council Hansard and Papers Thursday 10 May 2007.
The Hon. MICHAEL GALLACHER
(Leader of the Opposition)
[4.30 p.m.]: I move:
That this bill be now read a second time.
I am honoured to introduce this bill on behalf of the Opposition, all New South Wales police officers and their families. The bill amends the Crimes Act 1900 to provide that compulsory life sentences are to be imposed by courts on persons convicted of murdering police officers. A compulsory life sentence is to be imposed if the murder was committed while the police officer was executing his or her duties or as a consequence of, or in retaliation for, actions undertaken by any police officer. This bill is one of the most important pieces of legislation that I have spoken on in my time in Parliament.
In recent weeks the deaths of police officers have been receiving publicity for all of the wrong reasons. The tragic suicides of our young officers, the attempted suicide of even the more senior and the very public breakdown of another young officer are a reminder to all of us of just how tough it is to be a police officer in 2007. Last year, along with the police commissioner, the then Minister for Police and many police, former police and their families, I attended the eighteenth annual National Police Remembrance Day memorial service and laying of wreaths at the Wall of Remembrance in the Domain next to the Art Gallery. The Wall of Remembrance marks the sacrifice of all police officers in the execution of their duties, and in particular the 248 officers whose names have been added to the New South Wales Police honour roll. On the night of Police Remembrance Day, as a mark of respect, Sydney Opera House was bathed in a blue light.
For members who are not aware, National Police Remembrance Day is held on 29 September, which is St Michael’s Day. St Michael is the patron saint of police and archangel to protect and defend people. Last September’s commemoration was even more significant with the official opening of the National Police Memorial by the Prime Minister in Canberra. The memorial is to all police officers throughout Australia who have served our community and have lost their lives in the execution of that service. The ceremony was tinged with sadness. Just the day before Police Remembrance Day, Sergeant Colin McKenzie, a highway patrol officer based at Ballina, became ill during rehearsals for the Canberra service and subsequently passed away. He was yet another officer to die while undertaking his duty.
As honourable members would be aware, I joined the New South Wales Police Force in 1980. It is a sad fact that since then the names of 73 New South Wales police officers have been added to the New South Wales Police honour roll. The honour roll commemorates those members of the New South Wales Police who have paid the ultimate sacrifice in the execution of their duty. These officers gave their life to protect us. This bill acknowledges that police play a unique role in protecting the community. As the law currently stands, there is not a sufficient deterrent to attacking and murdering a police officer in New South Wales. Police put their lives on the line every time they walk or drive into a situation that they do not have control of and in which they seek to gain control and effect the arrest of an offender or offenders.
Since 1995 at least 18 police officers have died as a result of duty-related incidents. These include five who were murdered in the course of carrying out their duty. Another four police officers are assaulted every day. It is unacceptable that people involved in some of these murders are now enjoying freedom. That should change and this bill seeks to effect that change. There can be no clearer justification for this legislation than the fact that since 1980, 11 officers have lost their lives as a result of the actions of offenders who have attacked police executing their duty to protect the community. They are Sergeant Keith Haydon, shot by an offender on 24 November 1980; Constable Pashalis Katsivelas, shot by an escaping prisoner on 4 April 1984, from recollection at Concord Hospital; Sergeant Paul Quinn, shot by an offender following a pursuit on 30 March 1986; Constable Brett Sinclair, from in juries sustained whilst affecting an arrest on 25 October 1988; Constable Allan McQueen, shot whilst affecting an arrest of a fellow attempting to break into a motor vehicle only a few hundred metres from where we are now on 5 May 1989; on 9 July 1995, two officers, Senior Constable Peter Addison and Senior Constable Robert Spears, shot by an offender at Crescent Head as they got out of their vehicle to enter a home; Constable David Carty, stabbed during an affray in Wester n Sydney on 18 April 1997; Constable Peter Forsyth, stabbed whilst affecting an arrest on 28 February 1998; Senior Constable James Affleck, struck by a motor vehicle whilst deploying road spikes to stop a stolen car on 14 January 2001; and Constable Glenn McEnallay, shot by an offender at Matraville following a pursuit on 3 Apr 2002.
Honourable members should be aware that in response to this bill, which was introduced into the other place by the New South Wales Liberal leader in May last year, the New South Wales Police Association issued a circular to their members throughout New South Wales, which stated:
Members are advised that, following discussions last evening with the State Opposition, your Association has determined to support the Bill which proposes mandatory life sentences for anyone convicted of murdering a police officer.
In light of the recent decisions relating to the murders of David Carty and Glen McEnallay it is apparent that there is strong community support for police and for the introduction of measures which would deter offenders from assaulting and killing members.
Delegates elected to attend your Association’s Biennial Conference commencing on 21 May will be asked to endorse a campaign for 3,000 additional police and to strengthen laws aimed a protecting members. In the interim members are asked to contact their local member of state parliament and express their support for this legislation.
It is only by hearing first hand the concerns of constituents that politicians will be motivated to act. The circular was signed by Bob Pritchard, President of the New South Wales Police Association. I have no doubt that some member s will argue that police should not be given special consideration. The simple fact is that police have a legislated duty to go to the assistance of community members who are in need or to confront offenders, whether they are on duty or not. Twenty-four hours a day, whether they are wearing the uniform or not, they have a legislated duty to act.
Coming to the assistance of the community at any time, whether they are on or off duty, is not something that they have a choice about. This House needs to acknowledge that being a police officer brings with it a different set of dangers than any other occupations or professions.
As I mentioned earlier, Senior Constable Jim Affleckwas run down when he tried to stop an offender’s car during a high-speed pursuit in south-western Sydney. He was attempting to deploy road spikes designed to deflate the tyres of speeding vehicles and bring them to a stop. The offender who ran down Senior Constable Affleck received only a minimum sentence of 12 years. Today is an opportunity for all honourable members to vote in support of our police. This bill inserts a new section into the Crimes Act 1900 after section 19A. It reads:
19B Compulsory life sentences for murder of police officers
1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder of a police officer if the murder was committed:
(a) While in the execution of the police officer’s duty, or
(b) As a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of the officer’s duty.
2) A person sentenced to imprisonment for life under this section is to serve the sentence for the term of the person’s natural life.
3) This section applies to a person who is convicted of murder of a police officer only if the person was of or above the age of 18 years at the time the murder was committed.
4) If this section requires a person to be sentenced to imprisonment for life, nothing in section 21 (of any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or alternative sentence.
5) Nothing in this section affects the prerogative of mercy.
The concept of protecting police has support on both sides of the Chamber. In April 2002, just after Glenn McEnallay was murder ed, then Premier Carr said:
I want those who murder police officers to go to jail forever. I want those who murder police officers to go to the dingiest, darkest cell that exists in a prison system …
In May last year one of those involved in Glenn’s murder had his conviction for murder quashed. A few short days later, his parents spoke out in favour of this bill when it was introduced into the other place. Bob McEnallay said:
They support us in our time of need but when some thing goes wrong there’s no one there to support them.
Bob and his wife, Judy, were joined by the father of David Carty in support of this bill. Member s would remember the tragic murder of Constable David Carty, who was stabbed to death after being brutally assaulted in the car park of the Cambridge Tavern at Fairfield in April 1997.
These parents know that this bill will not bring their sons back. And, unfortunately, it will not keep their killers in jail. But it will keep future killers of police where they belong: behind bars—as the former Premier said, in the dingiest, darkest cell forever.
The quashing of the conviction of the driver of the car that carried the killer of Constable McEnallay highlights the important issue of joint criminal enterprise and whether people were jointly involved in an act of murder. The community and the Opposition—and certainly Glenn McEnallay’s parents—believe the driver of the car involved was implicated in the murder and should have stayed in jail for the murder of Glenn. The cases of those involved in the murders of David Carty and Glenn McEnallay highlight the soft stance taken in New South Wales against people who murder police officers. This bill is another step in providing a higher level of protection for police.
In 1997 former Attorney General Jeff Shaw spoke on the Crimes Amendment (Assault of Police Officers) Bill, saying:
The bill is predicated upon a belief that police officers are rightfully owed a measure of protection by the community. That is so for at least two reasons.
First, police officers place themselves in positions of risk on behalf of the community. Second, an attack on a law enforcement officer strikes at the core of our system of democratic government. Those who seek to harm the persons responsible for the enforcement of laws passed by our Parliament should be subject to special punishment.
That principle is already recognised in the Crimes Act. Section 58 of that Act imposes a higher maximum gaol penalty for the offence of common assault of a police officer than is imposed for the same offence against a civilian. Indeed, the relative maximum penalties are five years and two years respectively. Surprisingly, and anomalously, the principle is not carried through by the Crimes Act to apply to more serious assaults that in fact inflict injury.
In June 2002 the then Leader of the Opposition in the other place introduced a similar private member’s bill to this bill. At that time John Brogden wrote to the Premier foreshadowing the bill, and sought bipartisan support for it. When introducing the bill he said:
… this bill will require that anybody who murders a police officer acting in the line of duty will go to gaol for life. We believe that, because of the nature of the job, police officers in New South Wales should be afforded extra protection under the law when they are on duty.
When police officers are in uniform on duty or have recalled them selves to duty they put themselves forward when others step back. They put themselves in danger and do so to protect you, and me and the citizens of the State.
The law should recognise that to murder a police officer is one of the most serious crimes in the State.
In response the Parliamentary Secretary for Police, who led for the Government, said:
The Government wants people who murder police officers to rot in prison; we have never resiled from that position. Today Government members have the opportunity to stand by this commitment and that of former Premier Carr, who, I remind members, said:
I want those who murder police officers to go to gaol forever. I want those who murder police officers to go to the dingiest, darkest cell that exists in a prison system …
They have the opportunity to stand by the commitment of the Premier, who said on 11 May:
We want these people to rot in jail. Government members have the opportunity to vote for this legislation, which will mean that those who murder police officers will rot in prison. In conclusion, my experiences during more than 16 years of service shaped my belief that those who murder police officers should spend the rest of their natural lives behind bars. I do not anticipate that the use of this legislation will be required all that often—in fact, I hope that it is never needed. But it should be on the statute book to deter those who would consider, even for a second, acting to murder our police.
I ask all members to carefully consider this bill and vote to support our police officers, and indeed their families, who every day they go to work kiss their loved ones good-bye knowing the dangers that confront them.
A series of gunshots fired at close range killed 26-year-old police officer Glenn McEnallay in his highway patrol car after he responded to a report of a stolen car in Matraville in March 2002.The man who pulled the trigger, Sione Penisini, was sentenced to 36 years in prison, but his accomplices escaped with much shorter sentences after they pleaded guilty to manslaughter. A public outcry followed and the murdered officer’s father, Bob McEnallay, described the seven-year jail term handed to one of them as “an absolute bloody joke”.
But this week he made it clear he does not believe his son’s life was worth more than that of any other citizen. He says the state government’s plan to introduce mandatory life sentencing for people who murder police is unfair to other victims of serious crime. Bob McEnallay says the life of his surviving son, Troy, not a police officer, should not be valued less than that of Glenn. He believes there should be a minimum sentence for murder, regardless of who the victim is.
“I wouldn’t like to think my son’s case would attract more attention from the courts than some other citizen,” he says. “I know the [government’s] intentions are good, but I would rather see a system where the maximum possible sentences for murder are issued for any citizen who is murdered.”
The NSW Attorney-General, Greg Smith, says the bill to be introduced in Parliament this week was developed in response to the murder of police officers David Carty in 1997 and Glenn McEnallay. His office confirms the new law will not apply to accessories to murder, such as the Taufahema brothers who were involved in the McEnallay killing. The new law will mean only the murderer would serve the term of his natural life in prison.
The Premier, Barry O’Farrell, says the Coalition has been committed to the policy since 2002 and will “ensure that those who murder police officers spend their lives behind bars”.
But in 2010, Mr Smith denounced those who called for mandatory sentencing as “rednecks”, who were indulging in a “law and order auction”. He now says police killings are an exception. “The murder of a police officer is a direct attack on our community and warrants exceptional punishment,” he says. “It sends a serious message of support to our police, but I hope it is never used.”
Mr Smith prosecuted two trials in relation to the murder of Carty and he conducted the committal hearing. “I gave my blood, sweat and tears to that case in honour of that policeman. I then appeared in the appeals to the Court of Criminal Appeal and the High Court, both of which were dismissed,” he says.
Mr McEnallay says he can appreciate the support of John Carty, David’s father, for the new law, but does not agree that police officers should be treated differently. “I am very pro-police,” McEnallay says. “But I just hope some good legislation comes out of this for everybody.”
Mary Cusumano, whose husband Angelo was shot dead in his Penshurst computer store 15 years ago, leaving her to raise four children on her own, says she is angry with the new law. This week she learnt her husband’s murderer is up for parole.
“It just infuriates me,” she says. “My husband was a wonderful human being and he served his community. It is as if the government is saying his life is worth less than somebody else’s.
“With all due respect to the police, they make a choice to enter that career, with all the risks it involves. They are armed, my husband wasn’t. My husband never thought he would go to work and that a person would put a rifle to his head.”
Martha Jabour, who represents the Homicide Victims Support Group, says the new law will divide families. “If the government is thinking of making it mandatory life, why not mandatory life for every life. I cannot say that one occupation is far more worthy than the life of a nurse or a vulnerable child.
“If my son was murdered I would want his murderer to get life, but my son isn’t a police officer.”
The vice-president of the Victims of Crime Assistance League, Howard Brown, says ambulance and other emergency service personnel will not be treated equally under the new law. “It is a dangerous piece of legislation because it has not been well thought out,” he says. “We are told by the judiciary and by politicians that everyone is treated equally before the law. But for some reason they have decided to place police above everyone else, including judges.”
Mark Findlay, a professor of criminal justice at the University of Sydney, says it is “a pity that the new government’s legislative agenda for criminal justice should be opening with what is largely something for appearances”.
“The murder of a police officer should be condemned. But if the families of police officers are meant to be comforted by this proposal it would only be at the level of retribution,” he says. “There is no convincing evidence that mandatory life sentences have any significant deterrent effect on those who kill police officers in the circumstances in which such murders take place.”
The Greens MP David Shoebridge says mandatory life sentencing has not worked in other countries and does not produce a reduction in crime. The US Sentencing Commission delivered a report to Congress nearly 20 years ago denouncing mandatory minimum sentences. In its 1991 report, it said mandatory sentencing failed to improve public safety or deter crime.
Nicholas Cowdery, who retired last month as the head of the Department of Public Prosecutions, was involved in the prosecution of McEnallay’s killers. He says the new law “appears to be a purely political exercise to in some way satisfy an obligation to the NSW Police Association.
“I say that because there is no present criminal justice need for this legislation. There are no miscarriages of justice or anomalies that have occurred in the past that justify departure from the existing law. The present law is well capable of imposing a suitably severe penalty on a person who murders a police officer or a person in other categories of employment which have an increase in risk of harm attached to them.”
The existing law allows judges to impose a sentence of natural life for murder, and about 50 people are serving that sentence.
Death on duty
NSW police killed since 1980
1980 Sergeant Keith Haydon, shot at Mount Sugarloaf.
1984 Constable Pashalis Katsivelas, shot by an escaping prisoner at Concord.
1986 Sergeant Paul Quinn, shot during a pursuit at Perthville.
1988 Constable Brett Sinclair, died from injuries while making an arrest in North Parramatta.
1989 Constable Allan McQueen, shot while making an arrest in Woolloomooloo.
1995 Senior Constables Peter Addison and Robert Spears, shot at Crescent Head.
1997 Constable David Carty, stabbed outside a Fairfield hotel.
1998 Constable Peter Forsyth, stabbed while making an arrest in Ultimo.
2001 Senior Constable James Affleck, deliberately run over as he set up road spikes to stop a stolen car in Campbelltown.
2002 Constable Glenn McEnallay, shot at Matraville after a pursuit.
The object of the Crimes Amendment (Murder of Police Officers) Bill is to amend the Crimes Act 1900 to provide that compulsory life sentences are to be imposed by a court on persons convicted of murdering police officers. A compulsory life sentence is to be imposed if the murder was committed while the police officer was executing his or her duties or as a consequence of, or in retaliation for, actions undertaken by any police officer.
The tragic suicides of young officers, the attempted suicide of a senior officer and the recent very public breakdown of another young officer are reminders to us all of how tough it is to be a police officer in 2007. Every day police officers kiss their loved ones goodbye and go to work, knowing the dangers that may confront them. Supporters of the bill argue that those convicted of murdering police officers do not deserve another chance to be free members of society. Murdered police officers do not have another chance at life and their killers should not have another chance at freedom. I would also mention, however, that it is grieving families, aside from those convicted and those who are murdered, who endure the pains of such actions.
Since 1995 at least 18 police officers have died as a result of duty-related incidents. These include five who were murdered in the course of carrying out their duty. Another four police officers are assaulted every single day, as a previous speaker has mentioned. It is unacceptable that people involved in some of these murders are now enjoying their freedom. That should change and this bill seeks to effect that change. There can be no clearer justification for this legislation than the fact that, since 1980, 11 officers have lost their lives as a result of the actions of offenders who have attacked police executing their duty to protect the community.
They are Sergeant Keith Haydon, shot by an offender on 24 November 1980; Constable Pashalis Katsivelas, shot by an escaping prisoner on 4 April 1984, from recollection, at Concord Hospital—a probationary constable, I am reminded; Sergeant Paul Quinn, shot by an offender following a pursuit on 30 March 1986; Constable Brett Sinclair, from injuries sustained whilst effecting an arrest on 25 October 1988; Constable Allan McQueen, shot whilst effecting an arrest of a man breaking into a motor vehicle only a few hundred metres from where we are now sitting on 5 May 1989; Senior Constable Peter Addison and Senior Constable Robert Spears, shot by an offender at Crescent Head as they got out of their vehicle to enter a home on 9 July 1995; Constable David Carty, stabbed during an affray in Western Sydney on 18 April 1997; Constable Peter Forsyth, stabbed whilst effecting an arrest on 28 February 1998; Senior Constable James Affleck, struck by a motor vehicle whilst deploying road spikes to stop a stolen car on 14 January 2001; and Constable Glenn McEnallay, shot by an offender at Matraville following a pursuit on 3 April 2002.
In the light of recent decisions relating to the murders of David Carty and Glen McEnallay it is apparent that there is strong community support for police and for the introduction of measures to deter offenders from assaulting and killing members. The bill is predicated upon a belief that police officers are rightfully owed a measure of protection by the community. This so for at least two reasons. First, police officers place themselves in positions of risk on behalf of the community. Second, an attack on a law enforcement officers strikes at the very core of our system of democratic government. Those who seek to harm the persons responsible for the enforcement of laws passed by our Parliament should be subject to special punishment.
That principle is already recognised in the Crimes Act. Section 58 of that Act imposes a higher maximum jail penalty for the offence of common assault of a police officer than is imposed for the same offence against an ordinary civilian. Indeed, the relative maximum penalties are five years and two years respectively. Surprisingly, and anomalously, the principle is not carried through by the Crimes Act to apply to more serious assaults that in fact inflict injury or permanent damage to officers. When police officers are in uniform on duty or have recalled themselves to duty they put themselves forward when others step back. They put themselves in danger and do so to protect you and me and citizens of the State. The law should recognise that to murder a police officer is a serious crime in this State. The Parliamentary Secretary for Police, who led for the Government, said:
The Government wants people who murder police officers to rot in prison; we have never resiled from that position.
Today Government members have the opportunity to stand by this commitment and that of former Premier Carr. He said:
I want those who murder police officers to go to gaol forever. I want those who murder police officers to go to the dingiest, darkest cell that exists in a prison system …
Government members have the opportunity to vote for this legislation, which will mean that those who murder police officers will rot in prison. There are certainly some contentious provisions that merit further examination. However, there are two aspects of this bill that do concern me. The first is: Is there any evidence that the likelihood of a compulsory life sentence would have any deterrent effect? I ask whether a compulsory life sentence can achieve reduced recidivism and increased rehabilitation in our society. Can a compulsory life sentence stop future acts of violence? Is the life of a police officer more valuable than the life of anyone else, such as a doctor treating a patient, teachers or others in the community?
If honourable members consider any aspect of my speech today I ask them to reflect on this one point: I remind them that the stark account of prison life presents powerful challenges in our liberal democracy. During my whole life, from the time I was a parole and probation officer as a young man through to all my years at Wesley Mission, I have visited numerous prisons around the country. In fact, at different times I have been detained in her Majesty’s finest. Most of them are characterised by routine, regulation, boredom and depression associated with serving a long-term sentence. They are also characterised by claustrophobia, noise, chaos and the real risk of being compelled to inhabit a very violent world, including not only other prisoners but also others who enter the prison. Inmates that I have talked to over the years inevitably possess low intelligence quotients or have suffered brain damage, frequently from extensive alcoholism, and mental illness. Critical criminologists and sociologists have long since documented the squalor and brutality associated with incarceration. Even in today’s society, public complacency generally surrounds the plight of the incarcerated.
The growing fear of crime, fuelled at least partially by the media, and the frustration with the seeming lack of positive results of rehabilitation provide public support for hardened policies. This trend has become amplified by the rhetoric of politicians who have found that being tough on crime is an unbeatable popular issue.
However, with all of that said, with the limitations of our current prison system and acknowledging the absolute futility of long-term incarceration of individuals, there is no question in my mind that the Crimes Amendment (Murder of Police Officers) Bill is needed. I commend the bill to the House.
GREG IS mentioned on the Police Wall of Remembrance
About 4.20pm on 29 August, 1988 Constable Ashworth and Probationary Constable Currie left the Hornsby Police Station to attend an armed holdup at the West Pennant Hills branch of the National Bank. Whilst travelling along Pennant Hills RoadConstable Ashworth swerved to avoid a stationary semi-trailer at the intersection of Stuart Avenue and collided with a median strip, causing the police vehicle to overturn onto the incorrect side of the roadway and hit an oncoming vehicle. As a result Constable Ashworth sustained severe head and internal injuries and although quickly attended to by Constable Currie, he died a short time later.
The constable was born in 1966 and joined the New South Wales Police Force on 29 September, 1986. At the time of his death he was stationed at Pennant Hills.
The Holdup alarm, mentioned above, was a ‘false alarm‘.
Greg was aspiring to join the Pennant Hills Police Rescue Squad and, had he not died so early in his career, he was on his way to being nicknames ‘Bluey’ – no doubt a reference to him having red hair.
The accident happened on an uphill left hand curve near the Thornleigh tip.
As was the custom of the day, the vehicle was returned to the police station and was placed outside of the Meal Room at Hornsby Police Station where it was visible through the meal room window – awaiting Mechanical examination, and was visibly stained with blood.
Death Notice was published in the Sydney Morning Herald on 31 August 1988.
Peter William CARTER
Peter William CARTER
aka ‘ Carts ‘
Late of Corrimal
NSW Redfern Police Academy Class 162
New South Wales Police Force
Regd. # 18582
Rank: Probationary Constable – appointed 2 April 1979 ( aged 20 years, 5 months, 1 day )
Constable 1st Class – appointed 29 August 1984
Final Rank = Constable 1st Class
Stations: ?, Sydney Inner City Cycles, St Ives Driver Training, Warilla HWP – Death
Service: From? ? pre April 1979? to24 August 1988= 9+years Service
Awards: No find on It’s An Honour
Born: Saturday 1 November 1958
Died on: Wednesday 24 August 1988 about 8.40pm
Age: 29 years, 9 months & 23 days
Cause: Motor Vehicle Collision – Police Bike – Rider
Event location: Five Islands Rd, Cringila just south of the right sweeping bend ( southbound ) from Springhill Rd and just prior to Cringila Railway Stn
About 8.40pm on 24 August, 1988 Constable Carter and Constable Eric Renes were riding police motor cycles in Five Islands Road, Cringila in pursuit of a motor vehicle. As the cycles travelled around a sweeping right hand bend Constable Carter‘s cycle became unstable and despite his best efforts left the roadway. The cycle collided with a light pole and the constable was killed instantly.
The constable was born in 1958 and joined the New South Wales Police Force on 2 April, 1979. At the time of his death he was attached to the Warilla Highway Patrol.
By Jonathan Pearlman November 6, 2004
Alone in his patrol car, Chris Thornton had the police siren flashing as he chased a white sedan through Woy Woy.
Thornton, 35, a highway patrolman, had been in the force for 15 years. He was, his mother says, “the best driver I have ever seen”.
The reason for the chase that night in April 2002 is unknown. Both cars were seen travelling at high speed. Thornton was about 50 metres behind.
Meanwhile, Leonard Rowley, 56, an unlicensed driver, was driving to his local KFC to pick up dinner. He saw the first car flash past and judged – wrongly – that he had time to turn out in front of the patrol car. Thornton tried to avoid Rowley’s car but clipped the back, veered onto the wrong side of the road and hit a power pole.
Thornton died on the spot, which is marked by a permanent stainless-steel cross. Rowley later received a suspended two-year sentence.
“His life from the age of 12 was about helping people,” says Thornton’s mother, Freada Thornton. “He was in the surf club and he was there to rescue people and then he went into the force and he was doing the same thing.” His father, Barry Thornton, says: “He loved life. He had been in Gosford for 15 years and was so popular with the community there.”
Police pursuits are, says Barry, a necessary evil: “If they don’t catch the criminals there will be more deaths on the roads. The ones that they’re in pursuit of are the idiots that have done the wrong thing to start with.”
But pursuits have come at a cost to the NSW Police Department. Fifteen officers have died as a result of high-speed chases, beginning with the death of Constable George Boore in 1937.
Details provided by the NSW Police Association show a steady stream of fatalities involving cars and motorcycles. The full list of casualties is as follows:
About 10.15pm on 8 May, 1988 Constable Schetor was driving an unmarked police Highway Patrol vehicle along John Middleton Drive, Gundagai. For reasons unknown the vehicle crossed onto the incorrect side of the roadway and collided with a truck. As a result of the collision Constable Schetor and a civilian, Mr Anthony Smith, were killed instantly. Two other members of the public were also injured.
The constable was born in 1963 and joined the New South Wales Police Force on 27 October, 1984. At the time of his death he was attached to the Gundagai Highway Patrol.
Kurt was buried at Lakeside Memorial Park Cemetery, Kanahooka Rd, Kanahooka ( Wollongong ), NSW.
It was on October 13, 1960, that Mr Pirie’s father was patrolling when he came across a stolen vehicle. He stopped the vehicle and spoke to two youths inside, but one of them pulled a gun on Snr Const Pirie and shot him.
Inspector Pringle’s experience is in contrast, but he agrees the grief that comes with losing a colleague on the job remains for many years.
“I was with highway patrol working out of Cootamundra in 1988. I had a cup of tea with a fellow officer Constable Kurt Schetor before we headed off to patrol in separate directions,” Insp Pringle said.
Ten minutes later the then Constable Pringle received a call to respond to a crash and he arrived to find his friend and colleague was in involved in a head-on crash with a truck.
“I did my best but I couldn’t revive him,” he said.
Insp Pringle said many police officers carried a burden of grief with them for colleagues who died on the job.
“In many ways it is harder to deal with your own grief,” he said.
“When you are a police officer your ‘tank’ is full of other people’s grief because that’s part of the job. But it doesn’t leave much left.”
Officers from Canobolas Local Area Command will not be marking Police Remembrance Day in Orange this year.
Instead, this year’s service will be held at Cowra which is part of the Canobolas Local Area Command.
REPORT ON INVESTIGATION INTO
POLICE AND TRUCK REPAIRERS
This publication is available in other formats for the vision impaired upon request. Please advise of format needed, for example large print or as an ASCII file. This publication is available on the ICAC website in HTML format www.icac.nsw.gov.au
APPENDIX 2 RULING ON APPLICATION TO EXCLUDE FUTURE WITNESSES 57
This Report arises out of an investigation and hearing conducted in late 1990 and early 1991. As a result of work done by a joint police-ICAC team three police officers have been charged with serious offences. One of them has been sent to prison, and dismissed from the Police Service. Charges against the two others are pending. The Report suggests that consideration be given to criminal or disciplinary proceedings against a further two police officers.
In conducting investigations the Commission seeks to ascertain the truth. In its Reports to the Parliament it seeks to document the truth. In the course of doing so it is necessary to name people. The mere fact somebody is named in this Report does not mean he or she has done anything wrong at all.
Formal findings concerning individuals are contained in Chapter 7. What follows is a brief overview.
There are two truck repair firms at Wagga, generally known as Royans and Re-Car. Each of them employs field representatives, who are commonly called chasers. Each maintains a network of people who provide information about accidents, who are called spotters. Payment of spotting fees was contrary to law, but is no longer.
Two of the chasers were brothers named Syd and Bert Cool, who mostly worked in opposition to each other. Competition between Royans and Re-Car, and between the two Cool brothers, was intense. It is Syd Cool who originally brought information to the Commission. He is in prison, facing drug charges.
The most important allegation investigated was that payments were made to police officers for confidential information, or in the vernacular, that police were acting as spotters for the truck repair companies. The conclusion reached on the whole of the evidence is that this did happen, but the number of instances that can be fully detailed is relatively few. Close consideration has been given to three officers in particular:
Sergeant Lindsay Becroft of Hay
Senior Constable Peter Schonberg of Tarcutta
Constable David Zimmer of The Rock
The facts, circumstances and findings in relation to each are contained in the Report, which suggests that disciplinary proceedings against Schonberg are warranted.
The Report also examines the facts and circumstances surrounding the booking of a former chaser named Tony Gleeson, who died on 20 July 1987. The conclusion reached is that he was charged with speeding as a result of a plot hatched by Syd Cool, and that a major participant was a senior constable named Des Ross who is stationed at Gundagai. The taking of disciplinary proceedings against him is suggested.
Police officers inevitably handle a lot of confidential information. It must not be used otherwise than in the public interest, and must never be used for personal gain. This Report should have the effect of strongly discouraging that from happening, at least in relation to the heavy vehicle repair industry, and not just in the Riverina district
In the Report all quoted material is indented, and italics have been used to indicate the particular material quoted that is taken from hearing transcript. All quoted material is reproduced verbatim.
Generally surnames only have been used in relation to witnesses, without use of titles or ranks. This has been done in the interests of economy. No discourtesy is intended.
CHAPTER 1 HENWOOD’S DECLINE
During 1988 and 1989 a police officer stationed at Gundagai went bad. Indeed he went from bad to worse, and took a more junior colleague with him. This chapter chronicles his decline.
Four Men – Two Companies
Senior Constable Gary Henwood was born on 26 January 1957. He did highway patrol work. Henwood is known to his friends as “Snake” and that was his call sign when on the road. He lived in a house which adjoined the Gundagai Courthouse, and is opposite the police station: what might be called a good strategic position for somebody inclined to misconduct, as he turned out to be.
He had a colleague, several years younger, who was a constable. Some people call him “Barney”. That is understandable to anyone who knows him and is acquainted with children’s television, in particular “The Flintstones”. He is fair, of short stature, and has an open face and a simple personality. He struck me as a man who would be easily led. For reasons that will appear, I will call him B, rather than by his full name. Henwood is a more substantial type of person. B’s only employment before joining the police was as a part-time lifesaver with the Eurobodalla Shire Council.
Both men knew, and Henwood was mates with, Sydney Paul Cool. Everybody calls him Syd Cool. He is rising 50 years of age, having been born on 11 September 1941. He is presently in custody on drug charges and has a significant prior criminal history. He was sent to prison for 4.5 years in the mid 1960s, although he served substantially less. The offences he has committed include breaking and entering, stealing, and receiving, and more recently the supply of amphetamines.
For some years up until early 1990 Cool worked as a field representative or “chaser” for Re-Car Consolidated Industries (Wagga) Pty Ltd. That company is simply called “Re-Car” in this Report. In the end he became that company’s sales manager. He and others had the responsibility of ascertaining when heavy vehicle accidents had occurred, and securing the repair work for his company. That is done in various ways, principally through “spotters” who were spread around the country and provided an information and assistance service to Re-Car. The company has branches elsewhere, but probably the most important is at Wagga Wagga.
Its main competition in that town, and indeed in the heavy vehicle repair industry generally, is Royan’s Trucking and Trailer Repairs Pty Ltd, which is called “Royans” in this Report. That company also used spotters and chasers. One of its chasers was Raymond James Cool, a brother of Syd Cool. He is known to all and sundry as Bert Cool.
Competition between the two companies was and is intense. The Hume Highway runs through Albury, which is south of Wagga, and Yass, which is east and somewhat north of Wagga. Roads and Traffic Authority figures show that in the three years to the end of 1989 there were 177 heavy vehicle crashes on that section of the major transport route between Sydney and Melbourne. According to RTA methodology, that covers both trucks and buses. There were 237 heavy vehicle crashes on other roads in the 17 shires in the general area during the three year period. If the average repair job is worth $50,000, then in the average year the total repair work available in the area was nearly $7M.
Each of Henwood, B and the two Cool brothers was a significant witness before the Commission.
Henwood and Cool
Henwood did favours for Syd Cool, and received money from him. According to his own account, there was only one occasion when he acted as a spotter, for which he received $100. Cool says this happened far more often, and there is some evidence to support him. On other occasions Henwood helped salvage spilled loads, or guarded vehicles at crash sites, activities for which he received payment.
It is at least arguable that Henwood acted illegally in the first respect – see s.10 of the Tow-Truck Act 1967, and the discussion in Chapter 3. He did not obtain the consent of the Police Commissioner to do outside work or receive the monies that he did, and thus contravened Police Rules. He knew he was behaving in a wrongful manner, though doubtless he thought it was minor, as I suppose it was. But as was suggested by senior counsel assisting in his opening address, corruption breeds corruption. The relationship between Henwood and Cool had illicit overtones, and the position got worse.
Sale of Police Identity
Police officers must be able to identify themselves. For that purpose they are provided with a badge that can be produced and shown, and a photo-identity card. The two are generally carried in a wallet
Both Henwood and Cool say that the former sold to the latter his police identity papers. Henwood thus put Cool in the position that he could pass himself off as a police officer. This was very serious wrongdoing.
Henwood says he thought Cool was just interested as a collector, but on that basis I think the charge of $500 was surprisingly high. According to Cool, Henwood knew of his police history. Cool says he bought the policy identity papers in order that he could in fact masquerade as a police officer, and that he wanted to do so as to obtain a competitive edge in the drug dealing game. He says he never actually used the papers, but only his word is available as to that. Certainly he inserted a photograph of himself, and made up a false identity – he became Senior Constable K C Barrett. A reproduced photograph of the key part of the identity papers appears on the next page.
What happened is that in late November 1988 Henwood lost his identity wallet containing documents and a badge. He filed an official report shortly afterwards, which was in certain respects inaccurate, and proceeded to take steps to obtain a replacement set through official channels. At about Christmas time he found the lost item, when he was mowing his lawn. He mentioned to Cool that he had a spare copy, Cool made an offer to him, and the deal was done. B had a peripheral involvement, in that for a period Henwood borrowed B’s badge, but it does not appear that he was knowingly concerned in the sale of anything to Cool, and I accept he was ignorant as to that transaction.
The Jugiong Job
Syd Cool lived on a property near Jugiong. The next door property had a small house on it, which contained objects of value. In about late October 1989 Syd Cool and Henwood had a discussion, out of which developed the idea that Henwood might enter the premises and steal what was there. Each man sought to blame the other for instigating the idea. However that might be, shortly afterwards -probably the night of Sunday 5 November 1989 – Henwood and B went to the deserted house together after they had finished official police duties. This was probably between 10pm and midnight. The two men were wearing gloves. What follows is B‘s account; taken from a recorded interview conducted some 12 months later.
The house is green in colour and is a double garage converted to a small holiday house. We were in my car and we pulled up out the front We went to the front verandah and looked in the front window through the curtains with a torch. We saw the inside had crockery displayed on cabinets around the room. One window we couldn’t see through because it had a curtain in front of it. We then went to the front door and tested it to see if it was unlocked but it wasn’t. The door had a top part with glass, Gary broke the bottom left hand panel of glass and then wedged the door open with a bar that we had taken with us.
We then entered the room and walked around the three rooms, we then removed the items listed on the search warrant except for the Chinese War Dog ornament which I have never seen. We placed these in the boot of my vehicle and returned to Gary Henwood‘s place. We removed the goods from my car and placed them in Gary Henwood‘s house in the lounge room. Gary said he would take care of the stuff. I then went home to Wagga.
The list of items contained in the search warrant is substantial and worth quoting:
1 Dinner set Burleigh Willow pattern, 97 pieces; Silver candelabra, 3 arms, silver plated; 1 glass dome clock; 4 American pressed glass goblets; 1 facsimilie oil painting (fishing boats); 1 Chinese War Dog ornament, blue; 1 antique walnut trinket box, brass and ivory decoration; 1 large vegetable dish and cover, Burleigh Willow pattern; 1 Silver plated serving trowel and knife, Rod silverware; 1 Silver plated serving trowel, Rod silverware; 1 picture, gold frame, forest scene; 1 silver coffee pot; 1 heavy glass cheese dish; 1 sandwich tray, (Royal Doulton).
The two men checked at Jugiong police station a week or two after the offence, and ascertained that the incident had been reported. Shortly afterwards Henwood gave B and his wife – the two had just become married – the silver coffee pot and silver tray as a wedding present. It appears nothing much was done to turn the stolen items into cash. Henwood says he burnt a painting, but a good deal of what had been taken was recovered. Some was found at Henwood‘s house, and some at B‘s place.
Syd Cool made three other serious allegations against the two men now under consideration. One was that Henwood made available to him a police revolver so that he and an associate could hold up a service station. Next he said that on one or more occasions amphetamines were transported by Henwood and B in the boot of a police car, so that the chance of apprehension would be reduced from Cool’s viewpoint.
Finally he asserted that Henwood purloined from the Courthouse, and provided him with, blank search warrant forms.
All allegations were denied, no external support for any of them has been discovered despite assiduous effort, and I am not prepared to rely upon the unaided word of Syd Cool. He is a criminal who the evidence shows was inclined to bombast, and in any event might well have wanted to gild the lily so as to keep the Commission happy. Accordingly no finding is made as to those allegations.
One other offence which Henwood committed, in which Cool had no involvement, is mentioned in the next chapter.
CHAPTER 2 COURSE OF INVESTIGATION
The matter came to the Commission’s attention when Cool offered to provide information and assistance. Of course he did this for his own reasons: at the time he was desperate to obtain bail so he could get his affairs in order before going away to prison for a long time. As it happened his efforts in that respect failed.
The course the investigation took is now detailed.
Terms of Reference
Cool wrote to the Commission on 12 August 1990. He was interviewed by Commission investigators on 15 August I approved a formal investigation on 6 September 1990. The period originally covered was from 1 January 1988, but that was later taken back by a year. After some discussion during the first week of hearing, the terms of reference were amended slightly, and their form did not change thereafter.
TO INVESTIGATE the conduct of police officers and other public officials in:
– the provision and acceptance of benefits in and by the motor vehicle towing and repair industry for information relating to motor vehicle accidents:
– any other improper or illegal activities in or related to the motor vehicle towing and repair industry.
in the period from 1 January 1987 to date, with a view to determining the matters referred to in s.13(2) of the Independent Commission Against Corruption Act 1988.
TO PREPARE a report in relation to the investigation.
TO COMMUNICATE any of the results of the investigation to such authorities, if any, as may be appropriate.
The account given by Syd Cool covered both corruption of public officials, and other criminality. Accordingly, contact was made with the Internal Police Security Branch, and from an early stage investigators from the Commission and that branch worked closely together. Later the Commission suggested establishment of a Joint Task Force, which was formally established at the beginning of January 1991. The Commission provided premises, support staff including analysts, and also most equipment including a specially developed small computer facility. The joint arrangements worked well.
Personnel worthy of special mention are Chief Investigator Mike Purchas of the ICAC, Detective Chief Inspector Hutchings of the NSW Police, Detective Inspector Hopkins, who has since become an ICAC Chief Investigator, Geoff Casson and Ron Szancer. The two latter are respectively a senior lawyer and a criminal analyst employed by the Commission.
At an early stage warrants were executed, most notably on the places of residence of Henwood and B, and the stolen property was found. Initially each gave an untruthful, exculpatory account, but within a day both had confessed. Each was then charged and brought before a court.
As a result of publicity following the court appearance, investigators were informed of a car which Henwood had dumped at a property at Jugiong. It was found to be registered in the name of a police sergeant.Henwood was interviewed, and admitted having agreed to get rid of the vehicle so that the owner could make a claim on his insurance company. Henwood drove the car from Sylvania to Jugiong. In late January 1989 the owner made a claim for the sum of $5000 which was paid out less an excess of $250. The wreck was sold recently for and the insurance company is $4,670 out of pocket. The sergeant has been charged with false pretences.
Henwood pleaded guilty to three charges. He was sent to prison for breaking, entering and stealing, and larceny as a servant (in relation to the police identity papers) for a period of ten months, and placed on a five year good behaviour bond in the sum of $1000 on a charge of being accessory before the fact to a false pretence. This happened on 7 January 1991. An appeal which he lodged was later abandoned, and he is presently in prison.
B has pleaded not guilty to a single charge of breaking, entering and stealing, which remains to be tried. The matter will not come before a jury until well into 1991. Accordingly I do not think it necessary, to ensure that B‘s right to a fair trial is not prejudiced, to defer making this report to Parliament: see s.18 of the ICAC Act.
Those who are generally cognisant with the matter will easily work out who B is, but people of that sort should not and would not serve on a jury in any event. At trial the onus of proof will be upon the Crown, and the standard will be proof beyond reasonable doubt. Before the Commission there is no particular onus upon anybody – the object is to search for and ascertain the truth, and the standard is proof on a balance of probabilities. Different evidentiary rules apply before the courts than before the Commission. Nothing said here is to be taken as a finding or opinion that B has been guilty of a criminal offence. In. view of the fact that a prosecution is under way I do not think that a statement under the ICAC Act is necessary, save to the extent that follows.
Henwood has been discharged from the Police Service. B‘s future as a police officer should come under consideration, whatever the result or the prosecution. The evidence is such as to warrant consideration of his dismissal. I so state my opinion, pursuant to s.74A(2) of the Act.
On 20 November a private hearing was conducted to take evidence from three witnesses, including Henwood and B. Shortly afterwards the investigation was announced and appropriately publicised, and public hearings were held in Wagga Wagga during the week commencing 10 December 1990, and in Sydney from 18 February 1991. The actual days of public hearing were as follows:
10, 11, 12, 13, 14 December 1990
18, 19, 20, 21, 25, 26, 27 February 1991
8 March 1991
A list of witnesses appears at Appendix 1.
Counsel assisting was Mr C Maxwell, QC. He did his job fully and fairly. Other lawyers granted leave to appear were:
Mr G Masterman, QC for Royans
Mr M Inglis for R J Cool and J W Cusack
Mr C Heazlewood for Re-Car, Padmore and M J Prowse and Mr J Glynn J W
Mr G Edwards and for various police officers,
Mr P Wilson and their wives
Mr J Heazlewood for R W Kelly
On 18 February 1991 an application was made for all prospective witnesses to remain out of the hearing room while evidence was being given. On 20 February I rejected the application in its terms, but granted it on a more restricted basis. Thereafter some future witnesses were kept out some of the time. The reasons given for the course followed may be of importance in future matters, and appear at Appendix 2.
The evidence I heard was confined in both an industry and a geographic sense. In the former respect, it was the heavy vehicle towing and repair industry that proved to be of the greatest interest. For obvious reasons crashed cars have less potential value from a repairer’s viewpoint. As to area, the evidence related to the Riverina region, particularly the eastern part of it Crashes on the Hume Highway were very much of the greatest significance. The area in question can be more precisely defined as having Hay to the north west, Leeton to the north, Yass to the north east, Tumbarumba to the east and Holbrook and Jerilderie to the south. Wagga is not far from the centre of this which will be called in this Report the relevant area. Townships of significance, on the Hume Highway include Holbrook, Tarcutta and Gundagai.
The Commission received a deal of information concerning one other region, but after intensive assessment it was decided that the evidence was insufficiently cogent to warrant hearings being held in relation to it. So far as industry is concerned, there have been recurrent allegations over a long period that police have acted as spotters in relation to towing jobs in the Sydney metropolitan area, and from time to time action has been taken and condign punishment imposed. That is a matter which the Commission will look at later if necessary, that is to say if it appears that old practices are current.
I have decided to proceed with this Report now, and recommend to the Operations Review Committee – see s.59(1)(a) of the ICAC Act that the present investigation be discontinued upon publication of the Report. That does not involve any judgment on my part that practices of the sort disclosed are confined to the geographic area mentioned above. Because of what I know about methods used in the heavy vehicle towing and repair industry, and a relative lack of interest by the Police Service concerning spotter’s fees, it would be surprising if practices disclosed in the evidence were not replicated elsewhere. It seems reasonable to hope that publication of this Report will have a discouraging effect in other places.
CHAPTER 3 REPAIRERS, CHASERS AND SPOTTERS
This chapter deals with the way in which trucks involved in accidents in the relevant area were handled, the activities involved, and the people of the greatest interest. It is best to start by considering the legislative background.
The Statutory Scheme
For the great part of the period under investigation the legislation of principal relevance was the Tow-Truck Act 1967. It was to be repealed by the Tow Truck Industry Act 1987 – see s.76 of the latter, and the Government Gazette of 11 March 1988 – but the repeal date of 1 August 1988 was preceded by the Tow Truck Industry (Revocation of Proclamation) Act 1988, which was assented to on 6 July of that year, and made operational on assent. The 1987 Act is therefore irrelevant for all purposes.
One then comes to the Tow Truck Act 1989, part of which was made operational in April 1990 and the balance six months later. Section 37, which is dealt with shortly, is contained in Part 3 of the Act which became effective on 1 November 1990 as did s.84 which repealed the 1967 Act – see the Government Gazette of 26 October, 1990. Putting the matter simply, the 1967 Act and in particular s.10 of it applied until that date, since when the 1989 Act and in particular s.37 of it have applied.
Both Acts require that “towing authority” be obtained before any motor vehicle is towed on a public street. By s.10(1) of the 1967 Act an offence is committed by any person who:
a. for the purpose of obtaining a towing authority, or for the purpose of enabling any other person to obtain a towing authority, gives or receives or agrees or offers to give or receive any valuable thing in consideration of the furnishing of information or advice as to the occurrence of an accident on a public street or the presence of a damaged motor vehicle thereon;
b. gives, or agrees or offers to give, any valuable thing in consideration of the obtaining, for himself or any other person, of the work of repairing a damaged motor vehicle; or,
c. receives, or agrees or offers to receive, any valuable thing in consideration of the obtaining, for any other person, of the work of repairing a damaged motor vehicle.
By s.37 of the 1989 Act:
1. A person must not give, or offer to give, any valuable thing in consideration of the obtaining, personally or for any other person, of the work of repairing a motor vehicle damaged in an accident or otherwise requiring towing.
2. A person must not demand, receive, or offer to receive, any valuable thing in consideration of the obtaining, for any other person, of the work of repairing a motor vehicle damaged in an accident or otherwise requiring towing.
In each case a maximum penalty of 100 penalty units is laid, down.
Section 37 relates only to payment for obtaining work, that is to say it has to do with the physical work and the antecedent contract. It prohibits what are called “drop fees.” Section 10(1)(b) and (c) were similar, but s.10(1)(a) was quite different. It related to information or advice of a given sort. It prohibited both payment and receipt of what are called “spotter’s fees.”
The evidence showed that payment of spotter’s fees was a commonplace practice. The law was flouted. No attempt seems to have been made to enforce it. That being so, it was better dispensed with, as happened late in 1990. During the great part of the period under investigation the position was very unsatisfactory. It must be stressed that enforcement authorities should either act as such, or push to have the law changed. To ignore a law which remains on the statute book contributes to a situation in which the law generally is treated as unworthy of respect.
Those who are interested in the somewhat sad history of police inactivity regarding the enforcement of the laws concerning the payment of spotter’s fees and drop fees and police corruption in the tow truck industry can trace it, at least from one viewpoint, in a report on the subject by the then Ombudsman New South Wales, Mr G.G. Masterman Q.C. The report is dated 16 September 1982. Reference can also be made to the Annual Reports of the Ombudsman for the years 1983, 1984, 1986 and 1987.
Both Royans and Re-Car employed field representatives, who are commonly called chasers. That was a description viewed with disfavour by John Padmore, the manager of Re-Car. He was asked if the word troubled him:
Definitely, I hate it. I don’t employ chasers.
Commissioner.. Did you once? — Never.
Given the fact you hate the word presumably you’ve got a reason for hating the word? — Because I consider my business a bit more up-market than that terminology, sir.
I understand that. But you have employed people who I think have said to us that they worked for your company as field representatives? — I have.
I think at least one of them has described himself as a chaser, a few years ago admittedly? — He may have done that but that’s not my term.
Have the company’s practices changed over the last 5 years say? — No, I wouldn’t think it has changed at all – referring to what, the way we – – –
Referring to the way you get your work? — Definitely, yes.
The nature of the change, please? — I no longer employ field representatives solely in that capacity, purely for economic reasons.
At a late stage evidence was given by Ronald Royan, the managing director of Royans, at the request of his counsel. Part of what he said follows:
I feel that the stigma that is placed on their name at the moment through allegations is affecting the morale of our other employees, including myself, and I felt that possibly it might be worth my while coming in and explaining the business to you people at the Commission. And, also, I felt that I don’t really feel that the field representative’s role has been explained correctly. Having been in business, what, 40 years, over 40 years, obviously we have a lot of clientele that we don’t need to chase for business. All businesses have representatives going out. Insurance companies have brokers, they give 20 per cent of their premium income to these broker to get work from them We have clients who need assistance.
They will rang at all odd hours of the night and day, and weather – seasonal conditions change. We could possibly give an example, if you like, of one of our customers who doesn’t have to be Spotted, as they call it, could ring us, say, 2 o’clock in the morning – mainly a night in winter at – pardon me, gee – he might live at Cots Harbour, and he could have a refrigeration unit full of prawns, cold meat or whatever; and it rolls over. He expects us to give him 24-hour service at all times. He will ring and he will ask us to look after the load.
We have to have somebody on hand who has the knowledge and the capacity to go out and handle that load, arrange another refrigeration unit, say, be able to attain labourers to assist in unloading that truck and preserving it, as well as helping himself He has to be able to assist and co-operate with the police and the Road Traffic Authority, who I really believe would be in a lot of trouble if he didn’t exist. There’s a lot of work involved in clearing the roads. I believe the insurance companies would suffer badly, which would flow onto the public through premium incomes. The way a truck is salvaged – and you ‘re looking at very heavy equipment at night time, and peculiar positions. There’s a lot involved it, saving that truck so that there’s little damage as possible.
Having spoken of a particular incident, he went on:
They’re not only to go out and con police and corrupt policemen – con spotters and corrupt policemen, as I think the papers are alluding to, you know, that offends us
Mr Masterman: Is that any part of their job at all?-Not as far as I’m concerned. We don’t employ anybody to act outside the law. They are employed to act honestly and with integrity and to uphold an image which I believe we’ve attained over many years.
The field representatives that gave evidence before me called themselves chasers. None of them had any doubt that they were involved in a very competitive business.
I accept that they did more than simply obtain repair work for the companies, that the range of their duties was not narrow, and that because of standing business arrangements it did not matter which chaser moved fastest in relation to a fair number of accidents. But often that did matter, and chasers had to be persuasive both on the telephone and in person, they had to be prepared to work around the clock when necessary, they had to be good drivers and in fast vehicles, and they had to have a network of people who could help them, particularly with information. It is also clear that successful chasers took considerable pride in their work, and each job secured for the employer was a matter of pleasure and prestige.
There is no evidence that either Padmore or Royan knew of any malpractices, save that each knew that fees were paid to spotters, and during the whole of the relevant period, except since 1 November 1990, that was contrary to law.
It should be clearly stated that although payment of spotters’ fees is not now illegal, it does not follow that everybody can act as a spotter without restraint. Most obviously police officers should not do so, whether or not they receive payment. The rules governing police, which have the force of law, provide that officers must keep official information confidential, and restrict the extent of their outside paid activities. Quite apart from the rules, it is obviously important that those paid to handle information and provide security on behalf of the community generally should not do so by way of private trade with a select few.
Many trucks have radios in them. Drivers talk between themselves, to pass the time and to alleviate tedium. They also exchange information, as for example about police activity. Naturally if there is an accident, other drivers will talk about it Drivers may also converse with people they know in places they pass by service stations and houses for example – who have the appropriate equipment. They use what are called CB radios, which may be of very high frequency or ultra high frequency, which determines the available range.
Police also use radios extensively. Anybody can buy a scanner which may be turned to the police radio frequency, and ascertain the messages that are being passed over it.
Each of the companies had a network of spotters, recruited and cultivated by chasers and in effect working to them. Some of the spotters were part time field representatives, who would when necessary go out to accident scenes. Others simply received and passed on information. The evidence shows that at any time each company had dozens of these people. Most of them were supplied with radio equipment, at the expense of the company. Most spotters left their equipment turned on for very long hours, and some did so around the clock. If they heard anything of potential interest it would be passed on to the relevant company or to a chaser from that company.
Spotters were paid varying amounts. As a general rule they would receive about $250 if their report of an accident was the first received and the company got the repair job. The fee could get down to $80 for the first report of a truck accident which did not result in work for the company. Sometimes payments were made by way of bonus, or to keep the spotters happy. But there was strong emphasis upon payment by results, and what really mattered was to be first with information.
Information of value was not just the fact that a truck accident had occurred at a given place, but also who owned the truck. That mattered because sometimes a standing business arrangement would mean one or other company would automatically get the job, and hence there was no point blowing a gasket getting to the accident site quickly. More importantly, it mattered because a chaser could sometimes get the job by making appropriate telephone calls, while the opposition were racing to the scene.
Chasers generally paid spotters personally, in cash. What follows is taken from the closing submissions lodged on behalf of Royans:
There is good business sense in the field representatives who develop and sustain the spotter system personally making payments to their spotters. This provides an opportunity for personal contact and encouragement. Further, it is submitted that there is nothing wrong or improper in a truck repair company enabling its field representatives to make payments to its spotters either generally or on occasions in cash. There are many situations in the community where payments are made in cash (for example to casual mowers of lawn or house cleaners).
There was some debate and conflicting evidence about how useful police officers would be as spotters. I have no doubt that if one of the companies could recruit a police officer as such, significant benefits would be likely to flow. People who see a traffic accident tend to call the local police right away, with only the ambulance service being given priority on some occasions when personal injuries were involved. Notification to the police may be by telephone, or by attending at the local station. That is not to say that typically the police will hear before the word gets out on the CB radio network but sometimes that will happen.
It also has to be remembered that police officers performing traffic duties are themselves on the road, and one of their responsibilities is to look out for accidents. At least sometimes they will be the first on the scene. Further, police officers have direct access to the RTA database which discloses the registered ownership of each licensed motor vehicle, which means police officers could provide information of great value if willing to do so. Finally, to have a friendly police officer at an accident scene can never harm and may well help somebody hustling for work.
It was accepted by everybody involved in the hearing that it would be wrong for police to accept payment for acting as spotters, and wrong for company representatives to pay them as such. That was conceded by those who defended the system of having spotters. Indeed they said it was inevitable, despite legislative proscription until recently.
Several witnesses from Royans gave evidence. On the management side there were two brothers, Clary Andrews and Bill Andrews, each of whom was for a time in charge of the chasers working for Royans out of Wagga. The former held that position from late 1984 to the middle of 1990, and his younger brother Bill Andrews has held it since. Another was John Cusack, now the sales manager for Royans, who had over the years worked for each of that company and Re-Car as a chaser. Finally there was Bert Cool, who had done likewise.
The only witness from Re-Car apart from Padmore was Maureen Prowse, who has been the bookkeeper since the business began in 1984. However evidence was called from four former Re-Car chasers – Syd Cool, Bert Cool, Cusack and a man named Ray Kelly.
There are many people with the surname Diesel in the Riverina district. One of these, Susan Kay Diesel, married a police constable named David Zimmer. At the time of the hearing he had been stationed at The Rock for nearly six years. It is a one officer post, and of course Mrs Zimmer had to help out considerably, especially when he was away from the station. She always used her married name, rather than keeping her maiden name, as some are wont to do. Her sister Pamela is married to Bert Cool. The two women are very close, the two men much less
In addition to Ross, Henwood and B, who have already been mentioned, a number of police officers gave evidence. The more important of them were:
_ Lindsay Becroft, a sergeant stationed at Hay, who was previously in charge of the Tarcutta Police Station. His wife is Judith Becroft. Each of them is said to be friendly with Bert Cool.
_ Peter Schonberg, a senior constable stationed at Tarcutta – he took over from Becroft in December 1989. His wife is Frances Schonberg.
_ Neville Unicomb, a senior constable from the Tumut police station.
_ John Campbell, a senior constable from Yass.
The Blue Book
A lot of material was seized during the course of the investigation, principally from Royans, from Re-Car and from various police stations. Much of it proved very interesting.
Most importantly, there was a blue exercise book obtained from Royans which was marked on the cover “spotters book”. It contained information as to the date and location of accidents, the owner of the truck and who was the spotter. The period covered was from 11 May 88 to 26 September 1990, although the book did not necessarily cover every job spotted during that period. From 30 June 1989 the truck type was also shown and amounts of money sometimes appeared in that column. The amounts tended to rise from $30 or $50 early on, through $70 or $80, to sums such as $150, $250 and $300.
From 1 May 1989 there was a separate “money paid” column, and the amounts shown were typically $250, with a few being more and a few being less. A page from that period appears on the following page.
It will be observed that there are five blanks in the spotter column. The first, fourth and fifth of them have obviously been whited out. In each case that which appeared originally was Sue or S Zimmer. There is expert evidence to that effect, but in fact one can see it by looking at the underside of the page. Similar obliterations have been made elsewhere in the book. In three cases the obliterated entry reads “Sue Zimmer”. In one further case that which was obliterated and has been whited out reads “Zimmer” and in another case an entry obliterated in that manner reads “Unicomb (Nev)”. Finally, there is an entry which has been obliterated by scribbling over it in what looks like biro, and the obliterated entry reads “police”.
These and other documents gave rise to obvious and pressing questions.
CHAPTER 4 PAYMENTS TO THE ZIMMERS?
This chapter examines the systems for payment of spotters, first at Re-Car and then at Royans. That is done with particular reference to payments linked with the names Diesel and Zimmer, of which there were a couple of dozen. The reasons given for the obliterations; referred to in the preceding chapter will then be examined. That will lead to the main question: were payments made to either or both of David and Sue Zimmer, and if so for what purpose?
The Royans System
The Royans system for payment of spotters was and is very simple. According to Gary Andrews, who was in charge of the chasers for most of the period under investigation, Cusack would come into his office and say “commission time”. Then Cusack would read out from some record of his the name of the spotter. Andrews would note the job number on the cheque butt and the amount paid. Nearly always the cheque butt and the cheque coincided, but that was not always the case. He knew that Sue Diesel was Sue Zimmer and understood her husband to be a police officer. Sometimes he signed cheques in blank, and they were filled out by others. Some such cheques were used to pay fees due to spotters.
There were five Diesel-Zimmer cheques which went out from Royans, the first four of which were signed by Gary Andrews and the fifth by Bill Andrews. The first was on 3 May 1989 and had “Sue Zinimer” on both the cheque and the butt. The second was on 9 June 1989. It had “Sue Diesel” as payee of the cheque, and “Sue Zimmer” on the butt. Gary Andrews could not explain this discrepancy, but I accept he tried and the failure was a result of genuine lack of recollection. On the third cheque dated 8 August 1989 “Sue Diesel” appeared both as payee and on the butt, and similarly with the fourth cheque dated 8 November 1989. The fifth was dated 2 July 1990 and again had “Sue Diesel” both as payee and on the butt. Bill Andrews did not know that Sue Diesel was Sue Zimmer, or that she was married to a police officer. Four of the cheques were for $250, and one for $500.
I accept this submission made by senior counsel for Royans.
At all relevant times Gary Andrews believed that Sue Zimmer was a spotter for the company and knew that she was a police officer’s wife. He signed cheques in her favour and had no reason to doubt that they were being paid for spotting work done by her.
Apart from the fact that until recently the law proscribed the payment of fees to spotters, no conclusion adverse to Royans or either of the Andrews is justified. Their system for payment of spotters was loose, as they now recognise, and will doubtless be tightened up, but that is their business. Had Gary Andrews thought it through he might well have recognised that to make payment of spotting fees to the wife of a police officer could have a very unhappy appearance to it, but there is no reason to think that he knew payments were being made for confidential police information. He thought that Mrs Zimmer was being paid as a spotter, and as will appear I think she was.
The Re-Car System
Maureen Prowse, the bookkeeper at Re-Car, in a statement dated 21 February 1991 outlined the procedure for payments to field representatives as follows:
(a) A cheque requisition form would be completed by them and would include the following details:
(i) Name of the person to be paid;
(ii) Name of the client for whom the work was being done;
(iii) The job number (this was not often known at the time a cheque requisition was delivered to the office, however, it was usually inserted by Ray Kelly the assistant manager prior to approval for payment);
(iv) Amount to be paid;
(v) The reason for the payment (ie. spotter, commission or general expenses).
(b) The requisition form would then be delivered to either Ray Kelly or John Padmore the general manager where it would be initialled by either of them and returned to me. Normally, I never spoke to the field representatives as the requisition forms would be placed on my desk after approval.
(c) I would then draw a cheque in accordance with the requisition form. I would write the cheque number and the date on the requisition form.
(d) I would then pin the cheque to the requisition form and it would be taken to either John Padmore or, if he was unavailable, to lan Gornell the spare parts manager. These were the only two people who could sign cheques.
(e) Once the cheque was signed I would then hand it to the field representative concerned together with the requisition form, if they were in the office. If they were not in the office I would often give them to Ray Kelly or, alternatively, I would post them, depending on what my instructions were at the time.
Syd Cool said he had paid various police officers for acting as spotters or for providing information. They included Henwood and Schonberg: but not Zimmer.
Mr Maxwell.. How did you actually get the money to pay them? — Well, you’d have to fill out at a report at Re-Car about the accident. You’d have to claim the money on that accident and you’d just be paid a cheque, then Id cash that cheque and give them cash.
Why not just give them a cheque in their own name? — It wasn’t the thing to do, wasn’t the appropriate thing to do.
Why, because it would reveal their identity? — Yes.
A little later Cool was asked whether his employer was told where the money was going:
You’d just tell them it was for the spotter on the smash.
Mr Maxwell: Did you have to tell them anything about whether it was for a police spotter or an ordinary spotter? — No, you just told them that you had a spotter to. They weren’t really concerned about that. They’re just concerned they got the job.
Did you ever speak to any of the management at Re-Car about paying police officers? — No, they weren’t interested in it.
Sorry? — They weren’t interested in that, knowing who the police were or – – –
When you say, “weren’t interested in knowing who the police were – — No.
Did they know that police were being paid? — They would know that, yes.
How can you say that? — Well, we’ve told them
He said he had told Mrs Prowse.
Mr Maxwell: Why was it necessary for you to tell her? — So the cheque could be made out.
Made out in a different name? — Yes.
Was it always in a fictitious name? — Yes.
Ever been made out to you? — Yes, sometimes made out to me, yes.
So there’d be a cheque for Sydney Cool? — Yes.
For a certain amount of money? — Yes.
You would then cash that? — That’s right.
Or in a fictitious name? — Yes.
You would cash it?—Yes.
Where would you cash that? — At the Shell Auto Port – Wagga Auto Port.
Mr Freemantle from the Shell Auto Port at Wagga gave evidence that very many Re-Car cheques were cashed there. A schedule of such cheques was prepared by Commission staff. There are many names on it not known to be spotters. This generally supports Syd Cool’s account, although not his suggestion that Mrs Prowse or Re-Car management knew what was going on.
The evidence of Cool already quoted was given when he first appeared before me on 11 December 1990. He appeared again on 27 February 1991, and was then asked by counsel for Re-Car about a change in the system, namely that cheques for spotters would be posted out. He recalled that, and agreed it happened eight or nine months before he left. That would make it about the middle of 1989. He said:
Yes. But I explained to John Padmore, when he told me that, that You couldn’t post cheques to police.
Mr C Heazlewood: I see. So you’re saying you had a discussion with him about that? — I did, yes. Yes.
You haven’t told us about that before? — I wasn’t asked about that before.
It’s something you’ve just made up now, isn’t it? — You think so?
You’ve just made that up now at the present time, haven’t you? — You think I’ve just fabricated that right now?
You’ve made it up now, haven’t you? Haven’t you? — For what reason would I make it up now.
You’ve never mentioned it on any occasion in the witness-box, have you? — I never had reason to mention it till you asked me. I’d forgotten about it.
When questioned further by senior counsel assisting, Cool said the reason for the changed procedure was that Re-Car wanted to cut down on the amount of commissions paid, and “I don’t think they trusted who was being paid.” The aim was “to ensure that the person who made the call actually got the cheque.”
Mr Maxwell: But was any mention made by Mr Padmore, was it put to you by him that there were some payments to police, or how was it that you made that – – – ?—No, I just made a comment that some of the – well, the fact of the matter is it was fairly common knowledge that the police were being paid. Its no good me sitting here trying to say something that’s not, you know.
Yes? — And I just made it clear that you couldn’t post cheques to police.
This evidence could not justify a finding that Padmore was knowingly concerned in the payment of spotter’s fees to police officers.
Different considerations apply so far as Mrs Prowse is concerned. It is she who made out the cheques. The cheque butts were put into evidence. They include interesting material, and some examples appear below. In each case a Re-Car cheque made out to cash was cashed at Mr Freemantle’s service station. The list below shows cheque date, number and amount, and what ‘appeared on the stub:
S.Diesel Commission 451
Gary Henwood 2 Callouts
Cash (GH) Commission 586 587
Cash (GH) Commission 596
S. Diesel 617/617T
Before the cheques were made out by Mrs Prowse, an expense form had to be filled out and authorised. Many such forms were filled out by Bert Cool when he was working for Re-Car, and a man named Ray Kelly authorised the forms. Each of them testified to having made certain false claims.
Kelly, who I considered a credible witness, said that on two occasions not long before Bert Cool left Re-Car in early 1989 they agreed to claim commission in the name of – Sue Diesel and split it between themselves. They saw this as being reasonable because of the long and arduous hours they worked – being in effect almost never off duty. On two further occasions after Bert Cool left, Kelly did the same for himself. He left Re-Car’s employment because he was under something of a cloud, and because John Padmore was tightening up the procedures and indeed discouraging payment of commission to spotters at all. Kelly strongly believed and argued that such payments had to be made for success in business. His arguments may not have been entirely selfless.
In her statement of 21 February Mrs Prowse said that she did not trust Syd Cool, and found him most difficult to deal with. It was hard to make him follow instructions, particularly after the new system was introduced in late 1989 whereby cheques to spotters were meant to be always posted out. She further stated that she drew numerous cheques payable to Sue Diesel, which always appeared on Bert Cool’s requisition forms, and were always taken by him. She did not personally know any person by that name, but was aware that Bert’s wife was a Diesel, and assumed that the intended recipient was a relation of his. As to cash cheques, there was a few of them, “but these normally related to a situation where there were a number of payees relating to the same job number. The reason we paid cash was to save writing out a number of small cheques”. That might be right, but does not seem to be borne out in the examples given above.
Mrs Prowse was of course asked why some cheques were made out to cash, but the butts seem to show just who the individual recipient of the payment was. She could only say that this was done at the request of somebody else, generally Kelly, and she complied with the request. She said she did not at the time know that Gary Henwood was a police officer, although she knew of him as a recipient of Re-Car funds. There is no reason to disbelieve her as to this, or concerning Sue Diesel. She specifically said she did not know that Sue Diesel was married to a police officer.
A Scam Against the Companies?
Each of Cusack and Bert Cool said that records taken from Royans were misleading, that payments had not been made to police or their wives, and that entries indicating such payments were fictitious devices to cover payments which they kept. They said that as chasers they claimed monies for spotters, but kept. it for themselves. As has been said, Bert Cool and Kelly said they had done the same thing when at Re-Car.
Cusack was shown the blue spotter’s book from Royans, and, a particular entry in the name of Sue Diesel, the only one in that name that had not been obliterated. He said he knew Sue Zimmer, and that she was married to the policeman at The Rock, but did not know her maiden name. He then began objecting, a declaration under s.38 of the Act was made, and he was asked this:
Mr Maxwell: All right, why did you put in Sue Diesel?—Why I put in Sue Diesel is because Wayne I think from Riverina (Kenworth), who may have spotted the accident, did probably not get paid I put it down to Sue Diesel because me and my colleague went halves in the money.
He identified the colleague as being Bert Cool. A little later he was asked:
Mr Maxwell: Why did you light on the name Sue Diesel? Why did you use her name? — Bert said that’s an appropriate name that we could probably use.
It could have been any name though? — Could have been.
Cusack said this was done with the “consent I think” of management, namely Bill Andrews. Then came the rationalisation:
Mr Maxwell: Right. So you told him about that, did you? — We’re entitled to different moneys which he really is unaware of We listen to scanners and pick up things ourself as well. We’re up all night, 24 hours a day; it’s a fairly hectic job.
So you think you’re entitled — ? — We think we’re entitled to some form of money.
A bit of a perk? — Yes.
Over and above your salary? — That’s correct. Other people get jealous if we collect it in our name, other employees. We are on fairly good money but the other employees do get jealous if they see commission cheques in our name.
I asked him if he had talked to Bill Andrews about the subject. The reply was equivocal:
Yes. He understands, I think, the position.
Commissioner.. And you’ve talked to him about it? — Yes, on and off, but he probably wouldn’t know exactly the amounts.
Mr Maxwell: But you’ve talked to him about cases where you’ve done the spotting yourself, right, you’ve got the job yourself?—Yes.
Not where someone else has got it and then you you’ve done them in the eye for their commission. Is that right? — Well, we haven’t really talked to him about that, no.
Gary Andrews was asked if he agreed with what Cusack had said about chasers being entitled to spotting fees. He replied in the negative, and was then asked:
Mr Maxwell: You felt that you were paying them appropriately for their services — Yes.
And you weren’t – you wouldn’t for one minute have allowed such a system to continue if you had any idea it was operating? –Correct.
It was suggested in the closing submissions by counsel for Bert Cool and Cusack that Gary Andrews had said Royans “was prepared to pay spotter’s fees to employees and that Bert Cool was told this when he commenced employment!’ That is based upon the early part of the following extract, but it is in my view largely negated by the later part. There is certainly no evidence that anybody on behalf of either company agreed to turn a blind eye if chasers helped themselves to company funds by use of false names.
Mr Inglis: Did you have a conversation with Bert Cool before he commenced work with your company? — Yes.
Did you indicate to him that it was legitimate so far as you were concerned for employees to claim spotters fees? — Yes.
And did you in fact mention an employee to him specifically who had been paid spotters fees and commissions from time to time? — Yes.
And that, I think was a mechanic. Is that correct? — Yes.
What was his name? — Mark Williams.
And did you indicate to Mr Cool that you saw that as being one of the benefits of working as a representative for your company — Yes.
In other words it was an opportunity to supplement your income? — Say if I tell you what he asked?
Yes? — He asked, “What, do you pay employees spotters?” or words to that effect. I said, ” Yes, we do, we’ve just paid Mark Williams. Alexander was in his lounge-room at the time when Alexander’s Williams rang us. Alexander could have truck rolled over. Mark Williams rang us. Alexander could have picked up the phone and rang us, too.” And I said, “They’re to be encouraged to ring for the sake of $250 if we get the job so it’s worthwhile, ” or words of that effect
Cusack’s attention was then drawn to the whited-out entries:
Mr Maxwell: Who did that? — I probably did, I’d say.
Well – – –
Commissioner.. Can you take away the “Probably” ? Did you? — Yes, yes.
He was then asked when it had been done, and he said he was not sure. He really had no idea.
Mr Maxwell: Did you do it after you became aware that the Independent Commission Against Corruption was interested in you and Royans? — I don’t think so.
He said he had done this because the entries “didn’t look that good”:
Commissioner.. Now, to whom did they not look good? They didn’t worry you personally because you knew the true situation? — Yes.
Was the fear that they wouldn’t look good to your employer or was the fear that they wouldn’t look good to the authorities if they came looking for the book?–Yes. Well, that was the case, yes, the second case.
It’s the last, is it? — Yes.
Which means the whiling out was done fairly recently? — No. I don’t think so. It may have been done a fair while ago.
Senior counsel assisting the Commission asked Cusack whether he had so acted of his own volition – off his own bat? He answered in the affirmative. When asked if he was sure, he said he thought so. When asked if anyone else could have been involved he said:
Well, I think Bert Cool also looked through the book and said, It doesn’t look good, those names in there; just white them out.”
As will be apparent from the passages quoted, all of this was like drawing teeth. Cusack had an air of intense embarrassment about him throughout. At no stage did I feel he was telling the M truth. In particular he did not have the air of a man who was pleased to make a clean breast of having acted wrongfully.
Bert Cool gave generally similar evidence, although he denied having taken monies that should have rightfully gone to a particular spotter who was in fact the first source of information in relation to any particular accident. He also wore an air of some embarrassment, but not as great as that evident in Cusack’s case. Bert Cool projects himself as a tough, cool character. He also denied having told his employer that he was taking money by suggesting a false name as a spotter. After a declaration under s.38 of the Act was made, this was said:
Mr Maxwell: So Sue Diesel was someone that you had and may still have some affection for? — That’s correct.
So this is the case; that you’ve used this person who you have some affection for, used her name to assist you in thieving from your employer. Is that correct? — That’s not correct
What’s wrong about it? — Well, if I hear an accident myself I would use the name S Diesel to collect the commission.
Yes, but why her name? — It’s better than using mine.
Commissioner.. Why hers, out of all of the names available in the wide and wonderful world? — I have used other names but that’s the name I use generally.
Can you help me as to why you chose that one amongst all that were available? — Possibly in the back of my mind, if there was a query of some sort that I may have been able to get her to back it up possibly.
Why that name rather than her rightful name, Sue Zimmer? — Well, Zimmer is not a very good name to use.
He said he had never discussed the matter with Mrs Zimmer.
In relation to the obliterated entries, Bert Cool said that he had seen a couple of names in the book, and suggested to Cusack that they shouldn’t be there. That happened about the middle of 1990, that is to say well before the ICAC investigation was public knowledge.
Mr Maxwell: What did you say to Cusack? — I said exactly that, “These names don’t look very good, you better get rid of them”
My didn’t they look any good? — Because they were policemen’s names.
Why wouldn’t that be any, good? — Because policemen’s names in these types of books just are no good in my opinion.
Why, because it might reveal some corruption? — Not in this case.
But it might? — Not in this case.
Then – – – ? — I object; it could reveal corruption between me and John.
Commissioner.. Yes, and perhaps going beyond that, it could give rise to an appearance of an inappropriate relationship with a police officer. Did you have that in mind? — No, I didn’t. No, I could see that if a policeman knew that his name way in this book, especially under the circumstances here today, he wouldn’t be very happy.
Most of this made little sense. The high likelihood is that the whiting out was done after the ICAC investigation became known of. And I was by no means satisfied by either the testimony or the conduct of Cusack and Bert Cool in the witness box that no payments had been made to the Zimmers. Of course if does not follow that such payments had been made. It has to be remembered that people lie for a whole range of reasons.
It is interesting that Gary Andrews could not bring himself to believe that Cusack and Bert Cool had been behaving in this manner as against Royans. That means he thought they were misleading the Commission. The managing director of Royans, a man of considerably more experience in the world, took the contrary view. So do I.
My belief is that what the two men said was at least partly true, and that they did from time to time make claims for spotting fees in the names of other people, and pocket the proceeds. I am also satisfied that happened when Bert Cool was at Re-Car. He did that on a few occasions with Kelly.
Their admissions inevitably stamp Cusack and Bert Cool as crooked in their morality. I do not believe that management knew what was going on, although the lax administration systems at both companies at the time the scam was working make it hard to sympathise fully with the companies which lost money. It is also to be noted that Royans have kept on Bert Cool and Cusack, despite evidence from those two men of their shameful conduct.
I was not persuaded that this provides the complete explanation for entries in particular names. I could not positively accept the evidence of the two men that the payments in the name of Diesel or Zimmer always went into their own pockets. Cusack and Bert Cool were witnesses that I would not be inclined to believe without strong outside support for their testimony.
Cheque No. 126449
When Zimmer and his wife first gave evidence, at the December sittings, both said that no money had been received from Royans by either of them. Bert Cool said the same thing. The only extent to which the Zimmers got money otherwise than from his wages was by way of occasional and small payments made by Bert Cool to Mrs Zimmer for help she sometimes gave with housework and child care. He saw these sums as containing an element of pay or reward. Mrs Zimmer had no doubt that they did not cover expenditure she made for the Cool household, for example when the parents went away for a weekend and she stayed with and cared for their children.
But the truth was otherwise, as emerged at the February hearings. Royans cheque no. 126449 dated 3 May 1989 in the sum of $250 both sides of which are reproduced on the following page – was then produced to Const. Zimmer.
He had earlier confirmed that on no occasion had either his wife or himself received any payment from Royans, or had any financial dealings of any sort with that company. When shown the cheque he said that the writing on the reverse side looked like his, that it was not his wife’s, and finally that it was his. He said he could not remember how his writing got on that cheque. When shown his signature on other documents, he had to agree that the only difference was that the initial preceding the surname was different.
Mr Maxwell.. What I ask you, sir, is to explain to this Commission why you signed a cheque in your wife’s name or rather endorsed it–Possibly just to cash a cheque, sir.
He simply could offer no explanation, or other assistance.
Mrs Zimmer remembered once having been offered a Royan’s cheque by John Cusack.
Mr Maxwell: When? — I can’t remember, it was a while ago. I remember he rang up – there was an accident or something and he rang up and said, you know, “Was there an accident?” and I said “Well, to my knowledge there was, Dave was gone 20 minutes ago, ” and he come over with the cheque and he said, Here you are.” I said What’s that?” I said, “No way, I don’t want a Royan’s cheque, and that’s the last I’d seen of it, and I said to him later, “That Royan’s cheque, what did you do with it?’ He said “I took it back to Gary Andrews.” I said “Are you sure?” He said, “Yes.” That’s the only cheque I’ve ever seen from Royans.
At the end of Mrs Zimmer’s evidence I sought to summarise the position so as to give her a chance to comment upon it.
Commissioner. You were and are connected by friendship or family with various people involved in the truck-repair business? — That’s correct.
And a number of cheques emanating from truck repairers have been made out over a period to you, right? — Yes.
One of those cheques which was apparently signed by your husband in your name was exchanged for cash, very probably at the bank’s sub-agency that the two of you use? — Yes. That’s right.
Your husband’s a police officer and you and he both know that – know or believe that it would not be proper for either of you to be involved as spotters? — That’s correct, yes.
On the basis of the evidence that I’ve heard and particularly that which I’ve just highlighted it may well be suggested that the one cheque that was exchanged for cash which was endorsed by your husband, wasn’t an orphan and that a number of cheques went either to yourself or your husband in exchange for spotting activities. Now, before I seek any response to that, do you understand that is what could be suggested? — Yes, I do.
She was then asked what she said to that suggestion:
Well we haven’t – well, I haven’t received any money for spotting.
Commissioner.. You say to that the only Royan’s cheque you you’ve ever seen is the one you’ve mentioned? — That’s correct, yes.
You can’t remember seeing a Re-Car cheque? — No.
You’ve done no spotting work? — That’s correct.
So far as you can say your husbands not wrongfully implicated in any way? That’s to say, so far as you are aware from whatever your source might be, your husband’s not been involved in spotting or getting monies from either of these companies? — That’s right, yes.
That’s your position, and so far as his signing of your name on that cheque is concerned, you can’t help further, you probably can’t help at all and we have to turn to him for assistance? — That’s correct.
Her husband was then recalled to the witness box for the last time. He agreed he was “flabbergasted” by seeing what was on the back of the cheque. He was asked whether he had any recollection of his wife telling him of the approach by Cusack, and said it rang a bell, but he did not recall any of the details.
I pointed out to Zimmer that in addition to the material put to the witness, there was the fact that in the books of one of the truck repair companies a number of entries which included his surname had been obliterated in a somewhat clumsy manner.
Commissioner.. And you’re aware of that and doubtless that had occurred to you as being a fact of at least potential significance? — Yes.
And you, I take it, have an understanding just as your wife did, of what could be suggested against you? — Yes, I do.
And I think I should ask you also to make any comment you want to in that respect. Is there anything you can say? — No, sir.
Just to run- over it, you’ve never acted as a spotter or a spotter’s helper for anyone? — No, I haven’t, sir.
If you hadn’t been shown that cheque that you wrote on, you would have said, hand on heart, that you’d never seen or handled a Royans or Re-Car cheque? — Yes, sir.
You certainly handled that cheque and practically certainly changed it into cash? — It appears that way, sir, yes.
But you can’t help further as to the circumstances in which that happened? — No, I can’t, sir. It’s just dazzled me, but anyway.,
The next witness on this aspect was John Cusack. He said he had attended at The Rock police station.
Mr Maxwell: Under what circumstances? — I’m fairly good friend with Sue and Dave.
And you’ve been there socially — Yes, sir.
And you’ve been there on business, your business? — No, sir.
Never ever? — Never ever, sir.
Never approached Sue Zimmer in any way in relation to your business? — I may have on behalf of someone, one behalf of Bert, I think I just can’t recall – I’m just trying to think
This was said in a deeply unconvincing manner. The witness again denied having approached Mrs Zimmer in relation to spotting. He said he had never paid for information for truck accidents.
Mr Maxwell: Well, what was the circumstance you went on behalf of Bert Cool?—There was a circumstance where I had to pay some money to her for work she’d done for Bert.
Do you know how much? — I can’t recall
And was it in cash? — Bert asked me to pay her for work she’d done and I think I drew a cheque, I think, from work to pay her.
Is this vaguely coming back to you? — Yes. Yes, I think that’s right
You haven’t spoken about it with anyone? — No, sir, I don’t – – –
Have you spoken to anyone about approaching Sue Zimmer with a cheque? Have you? — No, sir.
You deny it? — Yes, I think so, sir, yes.
Well what do you mean, you think – – – ? — What do you mean approach them, sir?
Well, have you spoken to Bert Cool or anyone like that? — No, sir.
Commissioner.. Have you been told by anyone anything about that happened here yesterday? — Only that there was some cheque thing but they – they just said what – you know, did you give the cheque to Dave Zimmer and I said yes. And I recall – that was the only thing I spoke to Bert about. I recalled it now, exactly what happened,
Mr Maxwell: You gave a cheque to Dave Zimmer?–At the – I think it was a bowling club or the pub or somewhere like that.
And what was that cheque for? — That was work Susan had done for Bert.
That was a Royans cheque?—Yes.
Well, did you understand that at all? — I think I asked Sue to, you know, to take the cheque and – said, “There’s a cheque here for you. You know, Bert wants me to pay you. ” She said “Look, I don’t want the cheque,” and I think I went to the club and seen Dave and I said “Look, this is a cheque that Bert owed Sue for working, ” and I give it to him
A little later Cusack said he had spoken to Bert Cool about the cheque the previous night, that is to say after the Zimmers had given evidence. A little later again he remembered that the cheque was in the sum of $250. He was asked what he said when he handed over the cheque:
I said, Here’s a cheque that Bert told me to mite out for you doing the housework, ” or looking after things or something for him while he was away. I don’t know, I just can’t recall that but I know that I did approach her’. with it.
The last witness on this aspect was Bert Cool. He had been present in the hearing room during the evidence given by the Zimmers, but not when Cusack gave the evidence referred to above. He confirmed he had rung Cusack to find out “what the cheque was all about”:
Mr Maxwell: Why, didn’t you know? — No, I didn’t.
Did that come as a complete shock to you? — Yes, it did,
That cheque? — Yes.
The Royans cheque in the name of Sue Zimmer came as a complete shock to you? — Yes, it did,
Didn’t you ask John Cusak to pay a cheque? — Yes, I did
A Royans cheque? — Yes, I did – I didn’t ask him to pay a Royans cheque, I asked him to pay Sue.
To pay with what? — Out of a commission that was owing to me.
When shown the blue book already referred to, he said the accident out of which the collision arose occurred on 29 April 1989 at Nangus. The name in the spotter column is or appears to be Sue Diesel (it has been partly written over and is difficult to read.)
I was left with the unhappy feeling that neither Cusack nor Bert Cool had told me the truth about the cheque in question. But it does not necessarily follow from that observation that the $250 was paid as a spotter’s fee. People prevaricate or lie for various reasons, and it is always a mistake to assume the worst once one concludes the truth has not been told.
Much the same can be said as far as the Zimmers were concerned. It is to be noted that Sue Zimmer said that Cusack proffered her the cheque after she gave information on request – not in any sense as a spotter – to him, and this had nothing to do with money Bert Cool owed her or wished to pay her. And given the antipathy between Bert Cool and David Zimmer, to which both referred, it seems most unlikely that the latter would have absolutely no recollection of receiving from the former, through Cusack, a Royan’s cheque for a significant amount of money.
I do not accept that all the Sue Diesel entries related to a fraudulent practice in which Cusack, Bert Cool and Kelly involved themselves, although I do accept Kelly’s evidence and accordingly must accept that some of the cheques are explicable on that basis. We now know that there is a lot more to be said about one of those cheques. For reasons already explained, I think it more likely than not that entries were obliterated from the blue book so as to throw Commission investigators off the track, and that indicates a consciousness of guilt, more likely in relation to spotter’s fees than in relation to the fraudulent practice.
In order to recommend criminal or disciplinary proceedings against Const. Zimmer, who is the only public official involved in this aspect and therefore the individual of the greatest significance to the Commission, it would be necessary to prove he received money himself, or was knowingly concerned in the receipt by his wife of money, in exchange for information which was to his knowledge improperly conveyed by one or other of them. Further, at least as far as criminal proceedings were concerned, it would be necessary to particularise the actual payment involved.
While I am left with an uneasy feeling, I cannot so conclude. Certainly particulars sufficient to warrant a criminal charge could not be formulated. It is just, though barely, possible that neither of the Zimmers was involved in any such practice. But it has to be said that Sue Zimmer could well have been acting as a spotter and taking the odd payment without her husband’s knowledge. That is distinctly unlikely, but it is an inference which can be made to fit with the primary facts. It must be remembered that while against each of Cool, Cusack and Mrs Zimmer, it would appear that the story has been constructed to answer unpalatable facts, although perhaps in a slightly clumsy manner, that cannot be said against Const. Zimmer. His position is that he just does not know, save a possible and very vague recollection.
Accordingly no finding of corrupt conduct is made against Const. Zimmer.
CHAPTER 5 SCHONBERG, BECROFT AND OTHERS
Allegations were made against, or there were facts and circumstances suggesting impropriety on the part of, some other police officers. The material relevant to each is examined in this chapter.
Senior Constable Schonberg
Peter Schonberg is a senior constable at Tarcutta, where he has been since late December 1989. He is the officer in charge of the station. He often has to attend traffic accidents. He said he first knew Syd Cool when he booked him for a speeding offence in about 1987. Schonberg said he had never given Syd Cool any information relating to any accident at any time.
Syd Cool said he had paid Schonberg thousands of dollars, such payments being made through Schonberg’s wife who for that purpose went by the name of Fran Crowe. There is some evidence that Syd Cool was given to exaggeration, and “thousands of dollars” falls into that category. At different times Cool said he paid Schonberg $1000 a week, or $1000 a month, or that he could not stipulate a rate. Certainly he was saying that he had dealings with and made payments to the Schonbergs on many occasions. There was not long for him to do so, as he finished up at Re-Car in about April 1990.
It was suggested by counsel for Schonberg in his closing submissions that Syd Cool had a malicious intent towards Schonberg. That was based upon the following evidence elicited by his own counsel from Schonberg.
I received information from certain police in Sydney that they were looking for a certain vehicle and a certain person. A couple of days after I received that information an informant of mine told me certain things. As a result of that information the car they were looking for in relation to Mr Cool’s arrest in Sydney for amphetamines was located by myself and handed over to certain police in Sydney as a vehicle that had been used to courier drugs up and down the highway. From certain other information I got off the same informant a female person who was a very close associate of Sydney Cool was located in another capital city, from information I supplied, and she was charged at – I think it was in Queanbeyan, sir; with virtually the same identical charge as what Sydney was.
I have proceeded on the basis that this is something to be borne in mind. However there is clear and cogent evidence in relation to one particular occasion, consistent with Cool’s generalised accusations.
It involved Barry Hayward, a constable first class stationed at Tarcutta. He has been there since early May 1988. When he started there the senior officer was Sergeant Becroft, who is dealt with below, and there was also a senior constable named Stewart He testified that both of them advised him not to become involved with either Royans or Re-Car. Later he was approached by Syd Cool, they spoke at length, and Cool made an offer to him:
Mr Maxwell.. Can you give the conversation to the Commission?–Not exactly. We spoke of many things. At one stage towards the end of the conversation he did offer me – he asked me whether I took the phone on a call-out basis at Tarcutta. I said “Yes, occasionally. ” He said, “Well, if you ever hear of any accidents I can give you $500 if you ring me up before you go out to it.” I told him where to go. I wasn’t interested. And we continued to talk He respected me for my opinion; continued to talk and then I left the scene
On 17 February 1990 a truck accident occurred on the Hume Highway at what is known as the Wagga Hill. Re-Car records show that an accident on that date and at that place involved a truck driven by M MacNamara, which became repair job 773.
Hayward testified that on the night in question he received a telephone call from Schonberg, who advised of the accident. It was arranged that the two men should go to the scene in separate vehicles. Hayward got there first, and the two men spoke:
Mr Maxwell.. Did he tell you something? — Yes, he did
What did he say? — He pulled me aside so that we were alone, away from other people and he said that held got Fran to ring Re-Car for the spotter’s fee.
And who did you understand him to mean by ”Fran”? — His wife.
Mrs Schonberg denied ever acting as a spotter. When her husband was asked about the particular accident, he said he had not or thought he had not attended the scene until the next morning, when there was another accident at just the same spot:
Mr Maxwell.. You see, sir, I put it to you that you went to the accident on the night before. Is that possible? — It could be possible but I did not do the accident, like actually did the TAI and that – because I’ve been to – – –
Who did the TAR matter? — TAI, traffic accident information form – the P4 I mentioned before.
Right? — See, I go to many jobs, assist sometimes and then I leave and whoever’s doing it – like one of the junior members might be doing it and I just oversee it and then I’ve gone, because as I say, I’ve just got that much work on out there, I just can’t be doing everything all the time.
No, but it’s possible, is it not, that you went there the night before but you can’t remember?-~-I just can’t remember it. I’ve probably done – I gave a list to my solicitor of the actual accidents I’ve done this year and it-‘s just – I just can’t remember. If he refreshed my memory I could remember it, you know.
Shortly afterwards Schonberg was shown the traffic accident report form, but it did not jog his memory in any way.
Almost immediately afterwards Hayward gave his evidence, and the next day Schonberg was recalled to the witness box. He then had perfect recollection.
Mr Edwards.. What happened at the scene? — When I arrived there Constable Hayward was there and Sydney Cool was there.
Cool was already at the accident scene? — Yes, from memory, yes.
Did you speak to Cool at the accident scene? — No. No, I did not.
You’ve heard the allegation made by Constable Hayward? — Yes.
That you allegedly pulled him aside? — That’s right.
What do you say about that? — I completely refute that.
Have you ever had any conversation with Constable Hayward about spotter’s fees? — No, never.
I found this quite unconvincing. Hayward remained adamant that the conversation had occurred. He was asked by Mr Masterman QC whether he regarded it as involving an impropriety on Schonberg’s part, to which his reply was:
As soon as he mentioned it, all respect for him went out the window.
Hayward was attacked in cross-examination, and I have borne in mind the matters then put to him, the most important being that he was disgruntled with Schonberg because of differences between them which had led to Schonberg counselling him on more than one occasion. However this does not change in any way the strong impression I had when the evidence was being given, namely that Hayward was trying hard to assist the Commission by telling the truth and the protestations of innocence on the part of the Schonbergs were both excessively strong and quite unconvincing.
The matter does not rest there, because Re-Car records support what both Hayward and more generally Syd Cool said. Specifically a Re-Car claim form dated 21 February 1990 contained this entry.
Full Details of expense
The resultant cheque was made out to S Cool and cashed at the Wagga AutoPort. This accords with the manner in which Syd Cool said he paid his spotters.
The Schonbergs say that she was known as “Blue”, not as “Fran”, but certainly Helen Crossman, another witness and former resident of Tarcutta, knew her as Fran Schonberg. So did Hayward.
The traffic accident report signed by Hayward relating to the Wagga Hill accident on 17 February nominates the driver as Mark MacNamara. That confirms Hayward was at the scene: indeed the contrary was not suggested to him. The dispute is really about whether Schonberg spoke to Hayward as the latter testified. The likelihood he did so is supported by the Re-Car records. Hayward had no idea that they existed at the time he first spoke to Commission investigators, or indeed at the time he gave evidence.
Mention should be made of one other document which became exhibit A40 and shows calls taken by a man named Harold Murray who worked after hours for Re-Car receiving calls from spotters. The first two calls recorded relative to the 17 February 1990 accident came from people named Helen Craig and Ronnie Pullen. However that does not mean the first call did not come from Mrs Schonberg, because she could well have contacted an individual, for example Syd Cool himself. He had no recollection as to that, but I find that entirely unsurprising. The statement made by Schonberg to Hayward at the scene is not to be understood as necessarily meaning that his wife had telephoned the Re-Car office. Contact with a representative of the company would amount to the same thing.
The conclusion I have reached is that Schonberg took steps to ensure that his wife received $200 in relation to information provided concerning the accident on 17 February 1990. I do not believe the denials of each of the Schonbergs. It is very probable that like payments were made and received on other occasions.
Lindsay Becroft is a police sergeant now stationed at Hay. He was previously at Tarcutta, and in closing submissions counsel on his behalf pointed out that there are more opportunities for a police officer to do spotting work at Tarcutta than at Hay, there is no evidence against his client in relation to his earlier station, and indeed Hayward testified that Becroft was one of those who warned him against getting involved with either Royans or Re-Car. It could be suggested that Becroft was trying to keep the spotting work to himself, but that is really a matter of speculation.
Bert Cool was friendly with both Mr and Mrs Becroft, particularly the latter with whom he shared an interest in horses. Bert Cool fixed up a horse float for the Becrofts free of charge, including putting on a half roof and doing a paint job, which was worth several hundred dollars, although certainly he did the work at his leisure.
On 27 June 1990, there was an accident at Darlington Point, which is on the Sturt Highway east of Hay. Royans got the repair job, which became number 2611. The blue spotters book shows that a payment of $250 was made in relation to that crash. The “spotter” column originally had entered the word “police”, which was inked out and “Hay Towing” inserted in lieu. A Royans cheque butt dated 2 July 1990 for $250 contains these words: “Beecroft Deacon T600 KW2611 Commission”. The cheque was made out to cash, and cashed at the Wagga Auto Port. Finally, the traffic accident report shows that Becroft was at the accident Certainly he was in a position to help.
Raymond Hyde was the tow truck operator who attended the Darlington Point accident. He said he got two telephone calls to attend, one from a man named Chapman and the other from Bert Cool. Chapman said that he rang Hyde first, and then Royans, and later received a cheque for $600 which apparently included a component for the information he provided in relation to this accident, as well as two others. Bert Cool also gave evidence, which was unusually difficult to accept in relation to this matter. However no witness said that Becroft got any money.
We are left with the records, which give rise to grave suspicion, particularly because I did not believe what Bert Cool said concerning the Darlington Point accident. But the gulf between suspicion and proof is wide, and it has not been bridged in this case. There is in my view insufficient evidence to warrant criminal or disciplinary proceedings against Becroft.
In the interest of thoroughness, I mention two other things. One is that Hyde said his de facto wife had given information concerning another truck accident after the Darlington Point crash, and when Hyde chased Cusack up for the spotter’s fee he was told it had gone to “a copper’s wife in Hay.” However as Becroft’s counsel said in his closing submissions, that does not point inevitably to the Becrofts because there are several other policemen with wives serving at Hay.
Finally evidence was given by three other officers from Hay, who presented as honest, conscientious and sincere. However what they had to say was of itself little moment save for an assertion by one of them that Becroft had a scanner at his house which he said had been given to him by a person named Cool from Wagga. This was flatly denied by Becroft. I can see no reason why the young officer should have been lying, and indeed I am inclined to accept his testimony as against that of Becroft, but this is not sufficient to weigh the scales against the latter such that an adverse finding is called for. At the end of the day I cannot say with confidence on the evidence that Becroft or his wife received improper payments for giving out police information supposed to be confidential.
Senior Constable Unicomb
Neville Unicomb was a senior constable when he gave evidence at Wagga in December 1990. He had then been at Tumut for a little more than 30 months. That station is in the mountains, where there are not very many accidents involving commercial vehicles: the witness could remember only three or four he had been to in his time at Turnut. Before that he was at Tarcutta, when the need to attend truck accidents was greater.
He said he had known Syd Cool for about 15 years, was friendly with him, often talked to him at the side of the road, but did not socialise with him. He felt Cool had tried to cultivate him. When asked whether any offers had been made, he said “he’s probably done that on dozens of occasions”. Unicomb was asked to be more specific:
… without knowing or remembering actual words, Syd had a few strange mannerism and he’s slide up very close to you and he’d strike up a friendly chat and he’s say, “Look, you know, there’s a quid in this if you can help us with the location of accidents,” the usual type of conversation and I said, “Syd, you know me better than that” or it would have been words to that effect just, you know, “Get out of me face and leave me to do what I have to do and you do your own thing your way
Mr Maxwell.. But he would come back to you on – he came back to you on other occasions, did he not? He wouldn’t take no for an answer —Hecertainly wasn’t a quitter but it was always – I think towards the latter end of our sort of closer working relationship, if you can put it that way, it was mainly done because he was short of jokes.
Short of jokes? — He wasn’t – he didn’t have his heart in the more recent requests he would have made.
You’d made your position clear to him? — Yes.
And you made it clear you weren’t going to alter from that? — That Is correct, yes.
Commissioner.. You took some of the later approaches to be at least semi-jocular? — If not entirely.
But if you’d said yes, you don’t doubt he would have proceeded to enter into an arrangement with you? — Syd was always a fairly intense sort of little person and I had no reason to believe that he wouldn’t follow through if Id agreed to go along with him
There were two associated entries which suggested a payment may have been made to Unicomb, but they were entirely unsupported by witnesses, and fall far short of warranting a finding adverse to him. I say that particularly because Unicomb, gave evidence in an apparently frank and forthright manner, and each of Cusack and Bert Cool claimed his name had been used by them for their own purposes, which could well be right although I did not think either was a consistently truthful witness.
The blue spotter’s book already referred to contained an entry which purportedly showed that there was an accident near Tumut on 24 March 1990 involving a truck owned by Don Brennen which led to repair job no. 2536 and a payment of $250. The name of the spotter has been whited-out but what originally appeared in that column was “Unicom (Nev)”. What would seem to be a related cheque butt was seized, but the bank could not find the cheque. It could well have been made out to cash and cashed by Cusack or Bert Cool with the proceeds being used by either of them or shared between them. Cheque butt 219122 dated 1 May 1990 relates to a Royans cheque for $250 and the butt comment reads “Brennan Louieville R2536 Neville Unicomb Commission”.
The evidence is quite insufficient to establish that Unicomb received this money. 1 said at the hearing, shortly after he gave evidence, that the evidence did not warrant any conclusion adverse to Unicomb, and that the investigation was at an end so far as he was concerned.
Greg Sweeney was a general duties constable stationed at Gundagai when he gave evidence in February 1991. A notice, pursuant to s.21 of the ICAC Act, had been served upon him requiring him to provide a statement of information. The resultant statement was dated 7 December 1990. In it Sweeney said that the only benefits he had received after January 1988 other than his pay from the NSW Police Service were:
a. cheques totalling just over $90 for payment for labouring work at a property near Gundagal;
b. a cheque for just over $200 being match payments from the Gundagai Rugby League Club;
c. a total of $7,300 odd from the Shell Service Station at South Gundagai for one night shift per weekend worked over a couple of years;
d. two sums of $40′ cash paid for assisting removal firms at Gundagai; and
e. a cheque for $4,649 from the Victims Compensation Tribunal for a broken wrist sustained while arresting an offender.
The statement was inadequate, indeed untrue, as emerged when the witness was questioned by junior counsel assisting.
Mr Casson: Have you worked on an accident as a salvage operator or have you provided labour at the scene of an accident when you’ve been off duty? — Yes, sir, I have.
Who did you do that work for? — I think once for Re-Car and once for Royans.
And when did you do that work? — Id say roughly it would have been mid-88.
You don’t record those items on this statement? — No.
Would you tell us why? — Well, I think the reason why I did not do that was because at the time when a summons was served on me I hadn’t been – no one spoke to me. Like, I knew members of the Commission were attending Gundagai regularly and of course just before that we had two police at Gundagai charged with very serious matters and I think the whole station was under a lot of stress at that time and all of a sudden members arrived and put a summons down in front of me and to be honestly truthful I was very scared. I didn’t know – sort of know what to expect and when I read through it sort of got worse and worse and I think obviously knowing – reading through the summons, it was concerning tow-truck operators and the like, I probably being a bit naive I left it out. I admit to leaving it out purposely.
Commissioner.. Were you going to mention this if you hadn’t been asked about it by Mr Casson? — I was, sir, yes.
This was confirmed by Mr Wilson, counsel for the witness.
Section 82(b) of the Act makes it an offence for a person to knowingly furnish information which is false or misleading in purported compliance with a notice served under s.21. An untruth uttered by a police officer is always especially displeasing.
On the other hand I accept that Sweeney having acted unwisely came to regret having done so, and had instructed his counsel to volunteer information about the matter. That is to say he sought to rectify the situation, and it was by chance that counsel assisting the Commission raised the matter first In such circumstances I do not think criminal proceedings are justified: very likely they would not result in a conviction being entered, and would accordingly serve no useful purpose. Much the same may be said so far as possible disciplinary proceedings are concerned.
The decision whether any step should be taken is not mine to make, but I am required by s.74A(2) to include a statement concerning each “affected” person, that is to say anybody against whom substantial allegations were made in the course of the investigation. I think it can be said that Sweency in effect did that against himself. The statement I make is that in all the circumstances I am not of the opinion that consideration should be given to Sweeney’s prosecution, or the taking of disciplinary action against him. However I recognise the right of the Police Service to take a more stringent view. Certainly I do not think that steps should be taken with a view to his dismissal from the Police Service. I do not believe he will ever act in a like manner again.
Senior Constable Campbell
John Campbell is a senior constable stationed at Yass. He has been doing highway patrol work from that town for ten years, since April 1981.
The name John Campbell appeared on three Re-Car cheques, the date, nature of payment and the amount being as follows:
11 March 1988 commission $100
27 July 1989 call out $50
15 February 1990 security $100
Syd Cool said in evidence that he had made payments by way of spotting fees to Campbell. The latter, who impressed me as a credible witness, denied that Indeed he denied having received any of the payments mentioned above. He did however make certain admissions broadly against his interests, which make it easier for me to accept the main part of his testimony. He said that he had given Syd Cool information, and had received certain benefits from him:
Mr Maxwell.. Now, did you receive benefits for that information -that you gave him? — Sir, I can’t say yes or no until I can explain how the information was given to Mr Cool.
Could you do that? — Yes, sir. At the scene of a truck accident the highway’s usually blocked and there’s usually rescue squad personnel ambulance, fire brigade, other police and other emergency services at the scene of the accident. No doubt Mr Cool would have asked me who was the owner of the truck and I would have supplied him with the name of the owner the same as I would have supplied the RTA with the name of the owner, there are then the ambulance personnel and the fire brigade personnel, I did not go out of my way to supply Mr Cool with the name and address of the owner purely to gain any monetary payment.
But did monetary payment of any benefit play any part in your decision to give Mr Cool information? — No, sir. When the accident happens there’s bits and pieces of trucks everywhere and people, bodies usually, and it’s the thing, “Who owns the truck?” “Mr Smith owns the truck” That’s what the information I referred – I passed
It always seems to be very important to chasers, that information, who owns it? — Most certainly.
He was asked if he knew why, and said he believed there was a great deal of money in the truck repair industry. He also mentioned the fact that the two companies were in competition: “first in, first served!’
Mr Maxwell: So you can see the potential for important information like that being sought after by chasers? — Sir, I could see that, but the information – when I said the truck belonged to a certain person it wasn’t for him to get in and beat the other person to the repair job.
Well, why did you give it to him? — Because he sag `Who owns the truck?” purely out of curiosity.
You think that the chaser there at the job would ask that purely out of curiosity. Is that what you say? — Probably confirming who owned the truck
Well, you know why he would ask it, because the wants to get in touch with the owner as quickly as possible so he can get the job. You know that’s the reason, don’t you? — Sir, not until you just put it to me them
Well, isn’t it obvious? — It is now, yes.
Commissioner.. I mean it might not have been obvious to you at the time these requests for information were being made to you. I suppose you’ve thought about this topic for a while over the last few months? — I have, sin I’ve given it a great deal of thought.
It must have occurred to you over that period that they were seeking valuable information? — Yes, sir, it has. But sir, all in the same, I still gave the information to the RTA and they only ask out of curiosity, same as the fire brigade and the rescue squad.
Campbell said he had disassociated himself from Syd Cool early in 1989. That followed an incident which he described, which led Campbell to believe that Cool “was completely mad.” Up until that time he had received benefits from Cool, which were frankly disclosed in a response to a notice served under s.21 of the ICAC Act.
In 1987 or 1988, Cool shouted Campbell and his wife to dinner in a Canberra restaurant. In the latter year Cool gave Campbell a CB radio aerial and two boxes of assorted vegetables. The total value of these items was not more than $250. I accept that Campbell did not regard them as indirect payment for any benefit he gave to Cool. I also accept that he did not set out to do Cool any favours.
The information he provided may from time to time have been of value, but if so that was accidental from Campbell’s viewpoint. There was nothing illicit in the association between the two men. More specifically, the available evidence does not enable me to draw a confident conclusion that any money went from Re-Car or Cool to Campbell.
CHAPTER 6 THE BOOKING OF TONY GLEESON
Between midnight and 1 am on 20 July 1987 a man named Tony Gleeson, now deceased, was given a traffic infringement notice by a police officer name Kurt Schetor, who has also since died. The infringement notice was issued after Syd Cool arranged for a false truck accident report to be made to the Gundagai Police Station. Gleeson was apprehended while travelling at an excessive speed to the supposed scene. Syd Cool insists that others were in on the stratagem, and in particular that Senior Constable Ross, who was present, acted throughout at his request and on his behalf. That allegation, denied by Ross, is examined in this chapter.
The Known Facts
As at the middle of 1987 Syd Cool of Re-Car and Tony Gleeson of Royans were two of the best chasers in the State. Competition between them was fierce. If either lost his licence, his capacity to function would be severely impaired. Even the loss of a number of penalty points following receipt of a traffic infringement notice would have a discouraging effect, and tend to make the person apprehended drive more slowly and cautiously thereafter. That could give other chasers a competitive edge.
Still speaking in generalities, I think there are two relevant propositions which are axiomatic, such that they may be looked upon as known facts. One is that those who drive beyond the speed limit ordinarily have no right to complain if they are caught and made to pay a penalty: the laws are there to be obeyed. The other is that law enforcement should take place on an impartial and an objective basis, and not be used for foreign purposes, as for example revenge, vindication, or in the hope or expectation of-private reward to a law enforcement officer.
Linda Wagstaff, who lives in Sydney, has known Syd Cool for a number of years. Their families are friendly.~ gave evidence on 26 February 1991, and said that in the winter-time about four years ago, he rang her “at some ungodly hour and woke me up”:
Mr Maxwell.. And did he ask you to do something? — Yes.
What did he ask you to do? — He asked me to ring up a police station down where he was and tell them there was an accident.
And were you to tell them – did he give you the information as to what to tell them? — Yes. He said that he was at the accident and there was – a truck had gone off the road, and if I could ring, and I said, ‘Why?” and he said that he couldn’t do it because he had a couple of warrants out on him and the police officer there would know who it was and they’d come out and arrest him for the warrants.
And so did you ask him what you were to say if the police asked who you were? — Yes.
And what did he tell you? — He said to, “tell them that you’re a Mrs Smart and that you live opposite the general store.”
Whereabouts? — In Nangus, I think it is.
And so you rang the – you telephoned the police station? — Yes.
That was Gundagai police station, was it? — I think it was. I can’t remember.
Commissioner.. Did he give you the number?—Yes.
She said later that she reckoned the call came after midnight, but could not remember looking at a clock or watch, so that does not count for much. He told her that the accident:
… was 2 or 3 kilometres out of town or something.
Commissioner.. Did he tell you anything about the direction from the township it was?—Towards – I don’t know, I’ve never been there. I think he said Gunning – not Gunning, Gundagai, I think.
You think towards Gundagai? — Yes.
So in any event the detail doesn’t matter but he gave you a description of where this accident was said to have happened? — Yes.
Did he give you a truck type? — No. He just said it was a -a truck had fallen off the road and he was ringing from his phone in his car and I said to him, “Why can’t you get your wife to do it?” and he said, “No, they know Nettie” so, you know, and he said, “If I get the accident, ” he said ”I’ll be able to pay the fines” and I thought there was an accident and I didn’t know until the police officers come out and told me that there wasn’t one.
Nangus is on the back road between Gundagai and Wagga.
It is quite clear that the call was made. Nobody suggested otherwise to the witness. Nor was there any suggestion that the witness was knowingly concerned in Syd Cool’s wrongful conduct.
The following entry is taken from the telephone message book at the Gundagai Police Station:
Statements were obtained from Sgt Bridgeman, the officer in charge of the Gundagai Police Station at the time, and Senior Constable Allen. According to the former the phone had been put through to his residence from the police station, and at 11:55pm on 19 July (not 20 July as shown in the message book) he received a telephone call from a woman at Nangus, informing him of the accident as detailed, which message he passed on to the police highway patrol by way of a police radio installed in his house. Allen says that he was on duty from 3pm to midnight, and “towards the end of his shift” he was contacted by Ross to ascertain the name and address of the informant. Allen then contacted Bridgeman at his residence, obtained information as shown in the message book and passed it back to Ross. I see no reason to doubt the accuracy of the records made by Allen, and in particular that the second call happened at 12:45am, which means he remained on duty after knock-off time. That is not unusual.
Another known fact of significance is that Schetor booked Gleeson at 12:30am on 20 July – a copy of the infringement notice appears on the next page. Again there is no reason to doubt that time, which is very likely to be precisely accurate or close thereto. It is to be remembered that on everybody’s account the booking was meant to appear genuine from Gleeson’s viewpoint.
Finally it is clear that at the time Ross and Syd Cool were quite close friends. Each had on occasions eaten at the house of the other, on a family basis. Ross did some filing work for Cool, and Cool did welding jobs for Ross and painted a box trailer he had. This was described by Ross as “favour for favour.” Mrs Cool gave Mrs Ross goods from accidents which had been condemned – this happened more than once.
Cool gave this evidence about Gleeson and the events of the night in question:
What happened was, he was my opposition and he was a problem to my so I organised for Des Ross to have him booked so he’d lose his licence.
Mr Maxwell.. What do you mean he was a problem to you? — He worked for the opposition.
That is who? — Royans.
Royans. How did you organise with – that is Senior Constable Des Ross, is it? — Yes.
How did you organise to have him booked? — We had a hoax call ring in to the police station and we knew that it had come over the scanner and we knew Tony Gleeson had a scanner and he would proceed to the alleged accident and we had a police car waiting there to book him as he turned up at the accident site, because it was on a 60k restriction and we knew he’d go through the town at speed
Where was this town?—Nangus near Gundagai
Can you describe the approach and exit to Nangus? — It’s just straight in and straight out.
A straight road? — Yes.
It’s a very small township? — Yes.
Who did you get to make the hoax call? — A person lives in Sydney, Linda Wagstaff.
Cool travelled from Jugiong to Nangus when he heard the call, which was to be made at about midnight, and which he was listening for. He saw a blue light flashing in the main street at Nangus and Gleeson being booked by Schetor. Ross was nearby, in another vehicle. Syd Cool drove around, pretending to look for the bogus accident:
Did you speak to Ross later on that night? — Yes, I paid him for the amount of points that Gleeson lost off his licence, $100 a point.
How much did you pay him? — I forget the exact amount. From memory I think it might have been $600.
When did you become aware of the number of points off his licence? — I can’t remember that exactly.
How did you pay Ross? — In cash
Did that come out of your own pocket? — No, it come from Re-Car.
All of this was said by Cool before any of the witnesses gave evidence. Support for his version comes from Linda Wagstaff, and also to an extent from Mrs Gleeson and another witness named Ken Towell. But first regard should be had to the account given by Ross.
Each of Gleeson and Schetor is deceased. In fairness to the latter it should be said that the evidence does not disclose whether or not he was knowingly concerned in an improper discharge of duty, and he may not have been. I am reluctant to make a definitive finding against somebody who could not give evidence.
Doubtless Gleeson was in fact speeding. I am informed to travel at 117kmh in a 6Okmh zone causes a loss of six demerit points, which did not deprive Gleeson of his licence at the time.
What Senior Constable Ross said
The last witness to give evidence on this question was Ross. He said he was on patrol in a police car with Schetor when Bridgeman called him on the police radio to advise of a truck accident outside Nangus towards Wagga. The two men drove back to the Gundagai police station, to pick up a second car. They drove in convoy to and through Nangus, where there was “a blanket fog” . Traffic was light, and as anybody would expect on a back road at that time of night The town was in darkness and Ross agreed it was “well and truly closed down ” for the night.
Commissioner: Did you and Schetor both go out to look for this accident site? — Yes, sir.
And, what, drove up and down and couldn’t find it? — Drove through Nangus. The information we had was that it was between Nangus and Wagga and even though the road to Junee isn’t a direct route to Wagga, it does go to Wagga, and the road does fork just the other side of Nangus, and I spoke to Constable Schetor on the police radio and told him to go one way and I would go the other way, when we got to the fork in the road west of Nangus on the Wagga side
Right? — And that’s what happened. I said to him, “You go that way and I’ll go this way” and we did that I drove about 5, maybe a bit more, kilometres and that’s when I saw on the side of the road wheel tracks in the mud. It was – the side of the road was quite wet and there was wheel tracks from a heavy vehicle or a semi-trailer in the mud leading onto the bitumen – well, obviously a semi-trailer at some stage, and I wasn’t able to determine whether it was half an hour or even a day but there was definitely wheel tracks on the side of the road leading from the mud onto the bitumen and from that I presumed that that was the source of the call to the police station so I went a bit further and I came back and then I called the police station on the police radio and asked them could they give me the name of the informant for this job at Nangus.
Senior Constable Dave Allen answered the radio at Gundagai and he, according to the telephone message pad, rang Sergeant Bridgman at home again to obtain the name of the information, for the information, and I assume he was told by Sergeant Bridgman that it was a person from opposite the Nangus store because that was the information he gave me back on the radio. I then told Constable Schetor that I was going to the general store to see the informant, on the police radio. And that’s what I -he said we would see me there because he hadn’t seen nothing he was out about 10 kilometres and seen nothing so we returned to the general store.
When I arrived at the general store the police car was on the opposite side of the road – sorry, it was outside the general store with Tony Gleeson’s car stopped, and I stopped on the opposite side of the road to what those two cars were. I walked over to Constable Schetor, I had a short conversation with him about what had happened. He told me that he’d got – checked Tony Gleeson on radar at 117 in the 60 area and I said “With this fog here you should be charging him with driving in a dangerous.” I looked at the infringement notice. He already had the details in the notice and he’d told Tony Gleeson he was going to give him a speeding ticket so I thought it wasn’t prudent then to change from that course of action but had I had the choice, had I been consulted before he wrote the ticket the charge would have been driving in a dangerous.
Ross was asked if he took anybody else to see the tyre marks, and he replied in the negative.
Mr Maxwell.. Did you see Bert Cool out there that night? — I saw Bert Cool at Nangus that night, yes.
What, in the township? — I cannot remember exactly where it was. It would have been very close to Nangus. I think it was on the straight, on the Wagga side of Nangus but I can’t just – I can’t –
Where were you? “ere were you when you saw it? — I don’t recall.
Where you stopped? I can’t recall. I do remember speaking to him
Ross adamantly denied having arranged for Schetor to be waiting to book Gleeson, or receiving any money from Syd Cool. However he heard afterwards from “several truck drivers” that Gleeson claimed to have been set up. As a result Ross went to Gleeson’s house “to confront him about the allegation.” The two men spoke – “it wasn’t a friendly discussion” – for 30 minutes or more. Ross had a tape recorder on him, supplied by Syd Cool. It was of the sort that can be hidden, but Ross gave evidence that it was in sight at all times. When giving evidence he said he spoke to Gleeson about the tape recorder. When interviewed earlier he said otherwise. He claims that he later erased the tape.
Bert Cool claimed a failure of recollection:
Mr Maxwell.. Do you remember the evening of 20 July 1987? — No, I don’t
Do you know the town Nangus? — I know Nangus, yes.
You went there on that night, didn’t you? — I don’t know, I just said I don’t recall the night.
Do you remember going out there and seeing Michael Gleeson being booked in the main street of Nangus on a particular night in July of 1987?—No, I don’t remember that.
Do you deny going there? — I don’t deny going there but I deny seeing that.
Well, you went there, did you?—I may have.
Do you remember seeing Des Ross out at Nangus around that time on a foggy evening?—No, I don’t recall that.Commissioner.. Let’s try and get at it this way.. did you become aware at some stage that the man Gleeson had been booked for speeding in or near Nangus? — I had heard that.
You heard that?—Yes.
Did you hear anything at all about that before the event in question? — No, I didn’t.
Were you in any way in the vicinity of that event? — I may have been. I’m not aware that I was.
If you were, you say on your oath it was perfectly gratuitous and accidental? — That’s correct.
And neither – none of your brother Syd nor Ross nor Scheter nor anyone else who it’s said was involved said anything to you about this before the event in question? — Not a thing.
Ken Towell is a tow truck driver. He was got out of bed by Gleeson on the night in question, and the two of them drove to Nangus in separate vehicles. Gleeson stopped on the way to get fuel, and later drove past Towell’s truck, at speed. A little later Towell saw Syd Cool’s car, a few kilometres out of Nangus, going slowly or pulled up on the side of the road. His evidence in this respect was unclear -unfortunately Towell was a verbose and passionate witness, although I have no doubt he was trying to help the Commission. He also saw Bert Cool’s car in the vicinity.
Towell said, and this may be important, that the police car was hidden before Gleeson was booked. However I note that he had both Ross and Schetor in the same car. Towell had no doubt what had happened – “they just set us up to get us booked for speeding, that’s what it amounted to.” But he said that “everyone in the trade” knew what had happened, and it is not clear when he arrived at the conclusion he had reached when giving evidence. He said he heard Syd Cool say to Gleeson over the radio that Gleeson could have that job, and given that the Cool brothers were working together at the time and Gleeson was the opposition, that certainly seemed odd.
Sue Gleeson, the widow of the driver booked, was an impressive witness, something that cannot be said of many in this matter. She received a phone call from a spotter. He had presumably heard the call on the police radio about the “accident”. Her husband went out, and she continued to listen on the scanner. When her husband was going to an accident she:
… used to listen for anything up to hours later.
Mr Maxwell.. Well, did you hear any other conversation from voices that you recognised thereafter? — Yes, I did. I heard Des Ross say to Curt, Wes coming towards you now” or something to that effect and Curt said “We got him “
Now, how long after the Bridgman conversation was it that you heard that on your scanner? — It could have been 20 minutes, half an hour; possibly half an hour.
Did you have any doubt at all that it Ross’s voice that you heard saying Wes coming towards you now”? — None whatsoever.
And a short time after you heard that conversation did you receive a phone call from your husband? — Yes, when he returned back to Gundagai, he told me that him and Kenny and John were having a cup of coffee and he said, “I’ve been knocked off for speeding.” I said “I know, I’ve guessed” and he said How did you know”? and I said, ‘Well I told him what I’d heard on the scanner and he said “They’ve set me up”
Do you know how many points Tony lost on his licence? — He lost six points.
Ross was unable to say whether or not a conversation of this sort happened, but said if it did the simple explanation was that he was warning Schetor about an oncoming vehicle, because Schetor was a fast and impetuous driver. It has to be said that the words fit much more easily into the Gleeson-Towell theory that there was an antecedent plan to which at least Syd Cool, Ross and Schetor were parties.
Submissions and Assessment
Counsel for Ross made several points. One was that Syd Cool did not make any mention of this matter in the course of his early discussions with ICAC investigators. Indeed early on he spoke positively as to the character of Ross and only later detailed the matter when investigators showed interest in it. All of this must be borne in mind. It is really part of a greater whole, namely the submission that the testimony of Ross should be accepted, and against it the evidence is insufficiently strong.
The final factor stressed is that as to the $600 said to have been paid by Cool to Ross there is no cheque, no cheque butt, and no expense claim for such a sum. While I do not by any means ignore these facts, some of a countervailing nature must be borne in mind. It is known that Syd Cool carried cash and sometimes used it to make payments of substance, although there is no evidence that on any other occasion he made a payment as large as $600. Indeed there is no evidence as to precisely when and how he made the payment to which he has testified, or whether indeed it was paid in a single sum. Most importantly, the word was clearly round shortly after this incident that Gleeson had been set up. If a payment was made, one would in the circumstances expect that to be done, and the monies received and handled, in a surreptitious manner.
In his submissions, senior counsel assisting the Commission has amongst other things placed considerable reliance upon questions of timing, which are analysed in detail. I prefer to adopt his general approach without worrying too much about timing. I do not think it cannot be demonstrated, as he sought to do, that times and periods preclude one from accepting the account which has been given by Ross. It would have been difficult for Ross and Schetor to do what Ross claims they did and be in a position to book Gleeson, but it cannot be said to be impossible. Some of the times are estimates, and nobody had stop watches in use.
Certainly Syd Cool solicited Linda Wagstaff to report a bogus accident. If it matters, I accept that he solicited Wayne Apps, a diesel fitter of Wagga, to do the same. Certainly the plan worked neatly, in that Gleeson was impelled to drive at speed through Nangus. The weakness in the plan, if Syd Cool did nothing more, is that he was leaving it entirely to chance to have Gleeson in fact apprehended for speeding. There is absolutely no reason why any police car should have been in position at Nangus on the night in question with the radar operating at the time Gleeson drove into town. I stress it was a back road, after midnight, and the traffic was very light. There is a high unlikelihood that Gleeson would have been booked unless the plan was completed by enlisting the aid of friendly police officers.
Syd Cool knew both Schetor and Ross, and was very friendly with the latter. I know it is a serious thing to conclude that a police officer has abused his office, but in my view anyone seriously considering the known facts is driven to that conclusion. It would be almost ludicrous to go as far as Syd Cool certainly went, and then leave everything else to chance. Putting the matter another way, if the police were not in on the joke, it would not have worked, and the perpetrators would have been left entirely crestfallen.
I listened carefully to what Ross had to say. In the end I did not believe him. I have no doubt that he exercised his official functions in a manner which was not impartial – he acted in a manner which favoured Syd Cool to the detriment of Gleeson. That makes his conduct corrupt in nature pursuant to s.8(1)(b) of the ICAC Act. His conduct also involved a breach of public trust – s.8(1)(c). As win appear the conduct could constitute a disciplinary offence, or reasonable grounds for dismissing Ross from the Police Service.
CHAPTER 7 STATUTORY MATTERS
This chapter contains the statements and recommendations required or envisaged by the ICAC Act, together with some brief discussion.
The amended Act was discussed in the Commission’s Report on Investigation into Sutherland Licensing Police, and there is no need to repeat what was then said. By s.74A(2) the Commission is required, in respect of each”affected” person, to include a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to prosecution or disciplinary action. By s.74A(3), the “affected” persons are those against whom, in the Commission’s opinion, substantial allegations have been made in the course of or in connection with the investigation concerned.
All the affected persons have been mentioned already. They are B, Becroft, Campbell, Bert Cool, Syd Cool, Cusack, Henwood, Kelly, Ross, Mr and Mrs Schonberg, Sweeney, and Mr and Mrs Zimmer. I also include the two companies, namely Re-Car Consolidated Industries (Wagga) Pty Ltd and Royans Truck and Trailer Repairs Pty Ltd. By s.21(1) of the Interpretation Act 1987 “person” includes a corporation. As against each company it was suggested, if not in terms then in effect, that each was knowingly concerned in the payment of spotting fees to police officers.
At the end of the day that was not established, as against either company or any of their senior officers. True it is that all were knowingly concerned in the payment of fees to spotters, but I am not of the opinion that consideration should be given to prosecution action in that respect. I bear in mind that the Act is no longer in force, while acknowledging that does not provide a legal bar. Prosecutions are brought on the basis of the law as it was at the time of the conduct in question. However, it is quite apparent that the old law – s.10(1)(a) of the Tow-Truck Act 1967 – was not enforced.
To prosecute at this stage those who paid and received fees for spotting activities would be notably selective enforcement of a law probably best done away with, it would represent not just bad luck but unfairness for the individuals concerned who happened to become caught up in a Commission investigation which concentrated upon police officers, and it is distinctly unlikely that any or any significant penalties would be imposed.
I am satisfied that each of Mrs Schonberg and Mrs Zimmer acted as spotters and received payments as such. For like reasons I am not of the opinion that consideration should be given to the prosecution of them under s.10(1)a. Nor do I think any other prosecution action against them is worthy of serious consideration.
Each of B and Henwood is dealt with in Chapter 1, and nothing more needs to be said concerning them.
As to Becroft, Campbell and Zimmer I am not of the opinion that consideration should be given to prosecution or disciplinary action against any of them, for the reasons contained in Chapter 5.
Sweeney has also been dealt with in Chapter 5, and there is no need to repeat what is said about him there.
As to Syd Cool, he gave his evidence on objection, and I am not of the opinion that consideration should be given to his prosecution in relation to any of the matters disclosed. It should be acknowledged that, had it not been for the information he provided to the Commission, none of the offences referred to in the first two chapters or the matters documented elsewhere in the Report are likely to have been dealt with in any way.
Prosecution or Disciplinary Action
Section 249B of the Crimes Act 1900, which came into force on 5 July 1987, makes it an offence for any agent to corruptly receive from another person any benefit as an inducement or reward for or otherwise on account of doing or not doing something in relation to the affairs or business of the agent’s principal. An employee is an agent or his or her employer. Police officers are agents for the Commissioner of Police, and the Police Service generally. It is likewise an offence for benefits to be received by an agent, the receipt or expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs of business of the principal.
I believe Syd Cool who says he paid money to Ross in relation to the booking of Gleeson. However before a criminal court questions of onus and standard or proof arise in a manner which does not apply before the Commission. Specifically, it would have to be proved by the Crown beyond reasonable doubt, the onus always being upon the prosecution, that Ross got money or solicited money. As to that issue, in the absence of any material of a documentary sort establishing or tending to confirm payment, it is my view that a jury would be unlikely to find that element proved beyond reasonable doubt. There was no evidence of solicitation, and it is perfectly possible that there was simply an offer by Syd Cool. Accordingly, I am not of the opinion that consideration should be given to the prosecution of Ross pursuant to s.249B(1).
The common law offences of bribery, misconduct of an officer of justice and misconduct of a public officer have all been given some consideration in relation to the findings I have made regarding Ross. A brief dissertation of the relevant law can be found in Archbold, Criminal Pleading Evidence and Practice, 43rd Ed. at pp.2470-2471.
It is a common law offence for a public official who has a duty to do something in which the public are interested to receive a bribe either to act in a manner contrary to his duty or to show favour in the discharge of functions. The offer of a bribe is an attempt to bribe and is also an offence.
With regard to the offence of misconduct of an officer of justice or a public officer the elements are slightly but importantly different from those for bribery. What must be proved in such an action is that the. officer was distorting the course of justice and that what was done was with intent to obtain benefit for himself.
The charge of common law bribery suffers from the same difficulties concerning proof of payment that I have identified above in relation to prosecutuion for an offence under s.249B of the Crimes Act. With regard to the other two offences, perhaps what Ross did could amount to the common law offence of misconduct of an officer of justice or the more generic offence of misconduct of a public officer. Both offences are very rarely charged. I mention them for the sake of completeness, but do not go so far as to opine that consideration should be given to prosecution of Ross for either of those offences.
The Police Regulation Act 1899 was in force over the relevant period until revoked on 1 July 1990 by the Police Service Act 1990. By s.14 of the old Act, any member of the Police Force who did various things, including refusal to obey a lawful order, or who was guilty of misconduct or neglect, committed an offence. In my view a case of strength could be made out against Ross, but I am not of the opinion that consideration should be given to his prosecution pursuant to s.14. I say that because the penalty provided for, in the case of a first offence, was a fine of up to $10.
If another course of action is both available and appropriate, little purpose would seem to be served by prosecuting for such a niggardly penalty.
That leaves the Police Rules. Clause 11(g), makes a policeman liable to dismissal or other punishment for any actions subversive of discipline or calculated to impair the efficiency of, or bring discredit upon, the Force. In my opinion consideration should be given to the dismissal or discipline of Ross under this provision. His action can be seen to bring discredit upon the Police Service, and as calculated to impair its efficiency. The view may well be taken that there is no room in the modem Police Service of this State for an officer who uses his authority to lay a charge, even if justified, at the request and in the interest of a private individual who enlists the officer’s aid in the course of a vendetta.
As to Schonberg, there would difficulties in prosecuting him pursuant to s.249B(1) of the Crimes Act. They need not be dealt with in detail, but have to do with the fact that his conduct may not have gone beyond seeking to help his wife obtain a spotter’s fee. While it is I think a fair inference that his conduct is only sensibly explicable on the basis that he knew what she was doing was inappropriate for a police officers wife, it does not follow as a matter of absolute necessity that she was trading in confidential police information. I think a prosecution would not succeed, and therefore should state as my opinion that consideration should not be given to commencing prosecution action against him. As to s.14 of the 1899 Act, the same considerations apply as were stated concerning Ross.
I am of opinion that consideration should be given to dismissal or disciplinary action against Schonberg pursuant to clause 11(g) of the Police Rules 1977. He acquiesced in his wife acting as a spotter, and aided her to do so. He knew or should have known that to receive spotting fees was illegal: that is the law. More importantly he did so knowing that for her so to act must reduce the authority with which he could deal with truck owners and repairers, could well be seen as conduct calculated to bring discredit upon the Police Service. Further, the way in which he spoke to Hayward was, it may be thought, subversive of discipline.
That leaves Cusack, Bert Cool and Kelly. Each gave evidence largely on objection. The key admissions, such as they were, were made after objection and cannot be used against the individuals concerned. Nor can the evidence given after objection be used to demonstrate, as I have done in the Report, instances of equivocation, prevarication and changes of story. In any event there would be real difficulty in establishing with the particularity required of the criminal law just who did what and precisely when and where. I am not of opinion that consideration should be given to the prosecution of any of them.
For the sake of thoroughness I mention that consideration has been given to possible conspiracy charges against various affected persons. Those charges are rarely indicated, and certainly not just because substantive charges are available but there is a lack of particularity in relation to them. This is not a matter which could justify the laying of conspiracy charges.
It is recommended that this Report be made public forthwith. That means that either presiding officer of the two Houses of Parliament may make the Report public, whether or not the House over which they preside is in session when the Report is received.
Because the Parliament has been prorogued in the lead up to the election, it is clear that the Speaker of the Legislative Assembly only holds office until the day before polling day, which is on 25 May 1991. However the President of the Legislative Council continues to hold office pursuant to the provisions of s.22G of the Constitution Act 1902.
Thus the fact that Parliament has been prorogued will not impede the making public of this Report. A number of individuals will be waiting anxiously to know what the Report says about them, and they should not be held up by the fact that at the time of writing the Parliament has risen and an election is under way.
APPENDIX 1 WITNESSES
ANDREWS, Gary Donald Joseph
ANDREWS, William John
BECROFT, Judith Ann
BECROFT, Lindsay John
CAMPBELL, John Francis
CAMPBELL, Nathan Bruce
COOL, Pamela Jane
COOL, Raymond James
COOL, Sydney Paul
168-290 1023-1030 1231-1265
CROSSMAN, Helen Patricia
CUSACK, John William
134-150 305-356 838-902
FREEMANTLE, John Frederick
Service Station Proprieter
GLEESON, Susanne Deborah
HAWLEY, John Francis
HAYWARD, Barry Glen
BENWOOD, Gary John
RYDE, Raymond John
Tow Truck Operator
KELLY, Raymond William.
KIRKLAND, Craig Ian
PADMORE, John Warren
PROWSE, Maureen Jane
ROSS, Desmond Edward
ROYAN, Ronald Beade
SCHONBERG, Frances Mary
SCHONBERG, Peter John
501-513 629-634 654-665
SWEENEY, Gregory Joseph
TOWELL, Kenneth Edward
Tow Truck Operator
UNICOMB, Neville John
WAGSTAFF, Linda Jane
ZIMMER, David Charles
425-441 778-783 815-827 837-838
ZIMMER, Susan Kay
442-446 785-815 833-836 970-10,18
APPENDIX 2 RULING ON APPLICATION TO EXCLUDE FUTURE WITNESSES
At the resumption of this hearing on Monday 18 February senior counsel assisting (Mr Maxwell QC) sought a general order for the exclusion from the hearing room of all persons waiting to be called to give evidence. That was opposed by Mr Masterman, QC and Mr Wilson.
The Commission is a creature of statute, and accordingly the Act under which it operates must be the prime point of reference. Section 17(1) provides:
The Commission is not bound by the rules or practice of evidence and can inform itself on any matter in such manner as it considers appropriate.
The next subsection requires the Commission to exercise its functions with as little formality and technicality as possible.
Section 31 provides that hearings be held in public, unless the Commission directs that a hearing be held in private, in which event directions may be given as to the persons who may be present at the hearing. Section 32 provides that persons substantially and directly interested in any subject-matter of a hearing may be authorised to appear at the hearing or a specified part of it. Section 33 relates to legal representation.
I think these provisions have to be considered bearing in mind the rules that apply before the courts of the land. Hearings there are in public, but orders for witnesses out of court are customarily made on request and without argument That does not prevent the hearing from being categorised as public in nature.
It is true to say that at a criminal trial the accused is entitled to be present, and generally parties to civil litigation are permitted to remain, even if they will be witnesses. However, it is quite clear that at a hearing before the Commission there is no accused person and there are no parties in the strict sense. The Commission cannot, and does not want to, make findings of criminal guilt, or pronounce judgments having effect upon property or financial rights. I am of course conscious of the fact that Commission hearings and reports may have consequences, even serious consequences, but they are indirect in nature. It remains the fundamental truth that here there is no accused as at a criminal trial, and there are no parties as at a civil trial.
The next statutory provision of relevance is s.13(2), the relevant portion of which reads:
The Commision is to conduct its investigations with a view to determining:
a) whether any corrupt conduct … has occurred, is occurring or is about to occur;…
Section 74 obliges the Commission to provide a report to the Parliament following any public hearing. Under the new s.74A the Commission can include in such a report statements as to findings, opinions and recommendations, including stated reasons. Certain statements are required to be made concerning all affected persons, as defined. I take it as axiomatic that Commission reports must be fair and accurate, and to the greatest extent practicable they must state and record the truth, and the whole truth, concerning matters investigated.
I have decided not to accede to the application made by Mr Maxwell QC in the terms in which the order was sought. I think it will often be conducive to a free flow of the hearing if forthcoming witnesses are present. However it is clear to me that occasions will arise when the requirement imposed by s.13(2)(a) and the need for the Commission to prepare reports which are fair, accurate and truthful, will be best achieved by hearing the evidence of a witness in the absence of another or others. That will most often happen when two or more witnesses are to be called over a particular period in relation to the same or similar issues, aspect or topics. An example was Campbell, Kirkland and Hawkey, when that course was followed.
I can think of at least one or two other occasions over the past two days when that course may well have been followed with advantage. If in the future it occurs to any counsel that it may be best for one or more potential witnesses to be excluded while another witness gives evidence, that should be mentioned and will be considered and decided upon immediately. I expect such suggestions will most frequently come from learned counsel assisting, but I will be grateful for any assistance that any other counsel can provide.
In deciding those applications, the primary consideration win be what is most conducive to ascertaining the truth. I will not consider myself to be precluded from making an order because the individual subject to it is within the terms of s.32 or s.74A(3), that is to say a person directly and substantially interested in the subject-matter of a hearing, or an affected person, respectively.
On 16 March, 1988 Constable Zucchetti was driving along the Oxley Highway, Tamworth. Constable Burns was a passenger in the vehicle. At the time both were attached to the State Drug Crime Commission and were engaged in an operation in the area. While negotiating a right hand bend in the highway the vehicle crossed onto the incorrect side of the road and collided with a semi trailer. Constable Zucchetti was killed instantly and Constable Burns died the following morning in the Tamworth District Hospital.
Constable Zucchetti was born in 1959 and joined the New South Wales Police Force on 14 January, 1980. At the time of his death he was attached to the State Drug Crime Commission.
Constable Burns was born in 1962 and joined the New South Wales Police Force on 12 October, 1981. At the time of his death he was attached to the State Drug Crime Commission.