Kurt Brian SCHETOR
New South Wales Police Force
Goulburn Police Academy – Class 205
Graduated from Academy on 26 October 1984
Rank: Probationary Constable – appointed 26 October 1984
Constable 1st Class – Death
Regd #: ?????
Stations: Campbelltown GD’s, Warilla HWP, Gundagai HWP
Service: From pre 26 October 1984 to 8 May 1988 = 3+ years Service
Born: 25 February 1963
Died on: Sunday 8 May 1988
Cause: Motor Vehicle Accident – Driver
Funeral date: 11 May 1988
Funeral location: St Xaviour’s Church, cnr Belmore and Church St’s, Wollongong
Buried at: Lakeside Memorial Park, Kanahooka Rd, Kanahooka
Resurrection 1, Headstone section Beam 1 – 4Aa
[alert_green]KURT IS mentioned on the Police Wall of Remembrance[/alert_green]
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.
Video taken by SenCon Greg Callander
REPRESENTATIVES from Orange Police Station will today attend a national memorial in Canberra for Police Remembrance Day.
For Inspector Greg Pringle and Canobolas Local Area administration manager John Pirie, the day bears a special significance.
John Pirie was just coming up to his fifth birthday when his 40-year-old father Senior Constable Clarence Roy Pirie was shot at point-blank range and killed near Capertee.
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
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© May 1991 – Copyright in this work is held by the Independent Commission Against Corruption. Division 3 of the Commonwealth Copyright Act 1968 recognises that limited further use of this material can occur for the purposes of `fair dealing’, for example; study, research or criticism etc. However, if you wish to make use of this material other than as permitted by the Copyright Act 1968, please write to the Commission at GPO Box 500, Sydney NSW 2001.
This report and further information about the Independent Commission Against Corruption can be found on the Commission’s website at www.icac.nsw.gov.au
Four Men – Two Companies 6
Henwood and Cool 7
Sale of Police Identity 7
The Jugiong Job 8
Other Matters 9
CHAPTER 2 COURSE OF INVESTIGATION 10
Terms of Reference 10
The Hearings 11
Investigation Confined 12
CHAPTER 3 REPAIRERS, CHASERS AND SPOTTERS 13
The Statutory Scheme 13
Family Matters 17
The Blue Book 18
CHAPTER 4 PAYMENTS TO THE ZIMMERS? 20
The Royans System 20
The Re-Car System 20
A Scam Against the Companies? 24
Cheque No. 126449 28
CHAPTER 5 SCHONBERG, BECROFT AND OTHERS 34
Senior Constable Schonberg 34
Sergeant Becroft 37
Senior Constable Unicomb 38
Constable Sweeney 39
Senior Constable Campbell 40
CHAPTER 6 THE BOOKING OF TONY GLEESON 43
The Known Facts 43
Cool’s Version 45
What Senior Constable Ross said 47
Other witnesses 48
Submissions and Assessment 50
CHAPTER 7 STATUTORY MATTERS 52
Affected Persons 52
Prosecution or Disciplinary Action 53
Section 78(2) 54
APPENDIX 1 WITNESSES 56
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.
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 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.
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.
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.
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.
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.
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 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.
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?
Yes? — Well, that’s – you’re saying that, aren’t you?
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:
|19.01.88||109353||$200.00||S.Diesel Commission 451|
|10.11.88||702335||$100.00||Gary Henwood 2 Callouts|
|24.11.88||562818||$100.00||Cash (GH) Commission 586 587|
|09.12.88||562930||$200.00||Cash (GH) Commission 596|
|08.02.89||419686||$300.00||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.
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.
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.
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||Car Expense||Hotel A/C||Meals||Entertainment||Sundries||Total|
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.
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.
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.
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.
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.
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.
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||Manager||913-958 1324-1339|
|ANDREWS, William John||Associate Director||479-500 959-969|
|APPS, Wayne||Diesel Fitter||1105-1113|
|BECROFT, Judith Ann||Home Duties||753-768|
|BECROFT, Lindsay John||Police Officer||713-734 737-752|
|CAMPBELL, John Francis||Police Officer||1038-1057|
|CAMPBELL, Nathan Bruce||Police Officer||674-680 688-690|
|CHAPMAN, Peter||Plant Operator||694-713|
|COOL, Pamela Jane||Telephonist||1018-1023|
|COOL, Raymond James||Sales Representative||358-418 970-1018|
|COOL, Sydney Paul||Prison Inmate||168-290 1023-1030 1231-1265|
|CROSSMAN, Helen Patricia||Home Duties||646 674|
|CUSACK, John William||Sales Manager||134-150 305-356 838-902|
|FREEMANTLE, John Frederick||Service Station Proprieter||769-777|
|GLEESON, Susanne Deborah||Home Duties||1145-1161|
|HAWLEY, John Francis||Police Officer||681- 691|
|HAYWARD, Barry Glen||Police Officer||523-628|
|BENWOOD, Gary John||Police Officer||63-106|
|RYDE, Raymond John||Tow Truck Operator||905-913|
|KELLY, Raymond William.||Transport Operator||1300-1324|
|KIRKLAND, Craig Ian||Police Officer||683-694|
|MURRAY, Harold||Radio Monitor||1098-1104|
|PADMORE, John Warren||Company Manager||446-479 514-519|
|PROWSE, Maureen Jane||Bookkeeper||1071-1097|
|ROSS, Desmond Edward||Police Officer||1162-1229|
|ROYAN, Ronald Beade||Managing Director||1340-1345|
|SCHONBERG, Frances Mary||Home Duties||519-522|
|SCHONBERG, Peter John||Police Officer||501-513 629-634 654-665|
|SWEENEY, Gregory Joseph||Police Officer||1057-1070|
|TOWELL, Kenneth Edward||Tow Truck Operator||1115-1140|
|UNICOMB, Neville John||Police Officer||597-605|
|WAGSTAFF, Linda Jane||Home Duties||1140-1145|
|ZIMMER, David Charles||Police Officer||425-441 778-783 815-827 837-838|
|ZIMMER, Susan Kay||Home Duties||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.