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May 12, 2021

Quiz police on malicious prosecution

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Thanks for your full coverage of the NSWPF malicious prosecution of John Scrivener.

One of the worst aspects of police laying charges without proper cause is that Mr Scrivener had to live with the threat of conviction for nearly two years. That’s a stress that shouldn’t be underestimated. No doubt Mr Scrivener also suffered significant financial harm as a result of the police conduct.

Would you be willing to ask the local area commander to comment on the NSW DPP’s prosecution guidelines which require that the decision to prosecute be made on credible evidence and in the public interest? Those guidelines quote a law journal article by RR Kidston QC, the former senior Crown prosecutor of NSW, which states that it behoves the public prosecutor:

‘Neither to indict, nor on trial to speak for conviction, except upon credible evidence of guilt; nor to do even a little wrong for the sake of expediency… in the firm and abiding mind to do right to all manner of people, to seek justice with care, understanding and good countenance.’

Does Superintendant Wilkins believe the local police are subject to some lesser standard than this?

Her Honour Judge Wells correctly indicated that it isn’t a proper consideration for a magistrate to ask, ‘why would the police act in a way like this toward the defendant’, because that question reverses the onus of proof.

Nonetheless, it’s a question that we as a community should be asking – and demanding answers to.

I suspect there are quite simple answers: because they think they can and because usually the victims of police misconduct don’t have the resources to hold them accountable.

The NSWPF complaints system is a wicked joke. If Mr Scrivener complained about the police conduct when it occurred, the complaint should have been dealt with by now. The NSWPF Professional Standards Command Complaint Handling Guidelines require triage (initial assessment) within 21 days of the NSWPF receiving a complaint followed by resolution within 45 days or evidence-based investigation within 90 days. Those timeframes are set out in bold red type! The introduction to those guidelines states:

‘Effective complaint handling is the key to an ethical police force. Any police force that is accountable for the conduct of its police officers must be prepared to deal with complaints openly, efficiently and fairly.’

Mr Scrivener has been waiting since October 2011 for his complaint to be addressed by NSWPF. This indicates that the NSWPF simply ignores its own guidelines and the process is not effective, open or efficient; in those circumstances we’d be foolish to imagine it is fair.

It is, however, probably right that unless and until we do have an effective, open, efficient, fair and affordable system for dealing with complaints against police, we won’t have an ethical police force.

The problem is how to get one.

We can’t rely on politicians to address police abuse of authority – there are too many cheap political points in ‘law and order’.

As Geoffrey Robertson QC wrote in The Justice Game: ‘it is to the law and the courts, rather than to politicians and Parliament, that we have no alternative but to turn if civil liberties are to be protected’. John Scrivener’s journey bears that out. But that’s a terrifying state of affairs because most of us couldn’t dream of affording Geoffrey Robertson QC to defend us, and many NSW citizens can’t afford legal representation at all.

Following on from Her Honour Judge Wells’s finding that NSWPF officers must have ‘reasonable suspicion’ a crime has occurred before they can stop and search someone, would you be willing to also ask Tweed-Byron LAC to explain why NSWPF officers were stopping traffic entering Mullumbimby on Argyle Street and exiting Mullumbimby on Dalley Street mid-afternoon on Monday 5 August?

It seemed they were waving people over at random (but not for RBT) when no speed issue was involved.

Just another example of the heavy-handed police tactics in what used to be a relaxed and peaceful town?

PS – FYI: I don’t know Mr Scrivener at all.


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