Investigation Report N
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- Navigate this page:
- Reporter
- W family lawyer
- EW’s father
- DW QC
- Superintendent
- WD’s mother
- Attachment B
- The fact that [RC] was the son of a police officer formerly stationed at Orange did not complicate matters. This issue was had no bearing on the investigation.
- It should be noted that [JB] was not present at the party and that from an evidentiary point of view this is all hearsay. This information is what he has been told with no source identified.
- The photograph shown on the program shows darker marks than the photo contained in the police brief. One must question whether the photograph had been altered.
- For the offence of driving in a manner dangerous to the public the offence must occur on a road or road related area. The offence of "failing to assist" also requires that the i ncident
- For what purpose would the swag be forensically examined Examinations are conducted for specific purposes. Identity of the deceased and the vehicle involved were not in dispute.
Reporter: [WD’s] mother [name] received a visit from the local Police. Did they tell you they had taken a blood sample from him? WD’s mother: I don't believe so, no. Reporter: So you were completely unaware, then, that the driver had been breathalysed him and a blood sample taken? WD’s mother: I had no idea. I was repeatedly told there was no alcohol involved, it was all just a terrible accident. Reporter: [WD’s mother] didn't believe what she was being told. She logged onto Facebook, looking for images of the night. WD’s mother: I found a photo of [RC] with alcohol in his hand. Reporter: How easy was it to find that photograph? WD’s mother: Very easy. Reporter: Did the Police find that photograph? WD’s mother: No. I don't believe so. Reporter: [WD’s mother] was suspicious. She requested the official Police incident report, written by [GG] the day after [WD] and [EW] died. In it, [GG] stated there was no blood alcohol sample. [WD’s mother] quickly discovered from a friend that wasn't true. WD’s mother: She said that young man was in accident and emergency at the same time as [WD]. She said one of our most experienced accident and emergency nurses took his blood and he was there for about an hour, so they would have taken his sample also. Reporter: [WD’s mother] wrote to Police, requesting the blood be sent away for testing. This report by Forensic Pathologist Dr [name] calculated that at the time [RC] ran over [WD] and [EW], his blood alcohol level would have been 0.079. He was well over the legal limit for a licenced driver, let alone the limit of zero for an L-plater. W family lawyer: As soon as that occurs, it's a standard drink driving charge. The charges could have been as simple as neg drive. It could have been drink driving. Reporter: And none of these were pursued? W family lawyer: No, no, not even the simplest of charges. D family lawyer: At the inquest, [GG] said that he deliberately made a decision not to lay them. This is surprising but, umm, it's what he said he did. Reporter: Inexplicably and without the consultation that Police require, [GG] made another surprising decision. He overturned his colleagues’ initial judgement that the incident occurred on a road related area. According to [GG], it had now happened on a private property. It seems that [RC] won't be charged with anything. DW QC: Two fine young people, according to the evidence that I've read, are dead. Their families are understandably devastated. And what those members of the community would have expected was a thorough investigation where every reasonable inquiry was exhausted before the Police decided to do nothing. Reporter: What is this sort of investigation? DW QC: Well it is inadequate in the extreme. And I think that it fails the basic test for what the community expects. WD’s mother: I wrote to the state coroner requesting an inquest, and I think I stated my concerns about the veracity of the Police investigation. Reporter: An Inquest was called in May 2011. The Coroner's office requested a review of the Police investigation, to determine how thorough it was. The review was done by Superintendent [name] - the Commander in charge of Orange Police and [Police officer 3]’s boss. His review overwhelmingly supports [GG]’s investigation, except for his failure to consider charging [RC] with any driving offences under traffic laws. Superintendent [name] declared it was ‘an honest oversight’, because [GG] was focussed on the deaths of [WD] and [EW]. DW QC: To suggest that the failure of the Police to do anything was more a matter of oversight, which was what [the superintendent] concluded in his investigation, seemed to be simplistic in the extreme. Reporter: At the inquest in 2011, the breakthrough came on the fifth day, when the Coroner suspended the hearings, stating there was enough evidence to convince a jury the driver [RC] had committed a serious offence. It was referred to the Office of the Director of Public Prosecutions. WD’s mother: It was a very, it was very emotional because finally we were going to get some judicial scrutiny of this accident, and finally [WD] and [EW] could have some justice. Reporter: But hopes were dashed. What happened? EW’s father: After a long period of time, in March the following year, we get a letter from the Office of the DPP. Reporter: What did that letter say? EW’s father: Very little other than on the evidence available that the charges won't be laid. Four, four lines. Reporter: In the letter, the Office of the DPP decided no charge would be laid against [RC], based ‘on the evidence presently available. [WD]'s father [name] asked the deputy director of the DPP, [name], why they weren't proceeding. WD’s father: [The deputy Director of Public Prosecutions] said he couldn't proceed with the prosecution because the evidence was so poorly collated and you need a, much, much, much more accuracy to, to take something to court. WD’s mother: When I eventually got to see [the deputy Director of Public Prosecutions], he said to me: ‘I was unaware that he was the son of a Police officer until you sat here and told me today’. So it appeared to me even though the DPP had made a decision, that there wasn't enough evidence to run this, this case, it appeared that nobody's actually read the entire brief of evidence. Reporter: And whose responsibility was it to gather that evidence? EW’s father: The Police. Reporter: And had they not? EW’s father: Not in my mind. Reporter: Today [WD’s mother] and her family are back at Orange local court. The inquest into the death of her son [WD] and his friend [EW] has resumed. Many of the players have returned. EW’s father: We'll get to more of the facts, and there's some facts which have been missing and it's time for those to get aired. Reporter: Inside court, [GG] gave evidence. He denied there was ever a conflict of interest. He didn't work with [RC]’s father. [GG] also said he did attempt to interview [RC]. He phoned his home twice. As the day wore on, there was one person the families wanted to hear from most. The driver, [RC]. But he maintained his silence; he didn't give evidence. [RC], then 17, now 21, rejected all our requests for an interview. His lawyer told us that [RC] could still be charged with manslaughter. DW QC: You'd have to say that he's very fortunate. [RC] has had the benefit of a number of what I would regard as systemic investigative failures in this case. Reporter: The Police also rejected our repeated requests for an interview. [GG], [name] from Four Corners how are you? We would just like to ask you some questions now the inquest is over? Superintendent: [Reporter’s name], Can you direct any inquiries to the Police media unit please. Reporter: Yes of course, we have. Superintendent: We won't be making any comment, ok, thank you. Reporter: Right, ok, thank you. The silence is hard to bear for the grieving families. [WD’s father] paints the scene of the morning [WD] died, trying to make sense of his son's violent death. [WD]’s mother [name] watches her son's last adventure; over and over again. WD’s mother: I could spend my lifetime talking about him. I will spend my lifetime talking about him. Reporter: Every day [EW’s mother] sits on her daughter [EW]’s bed. She didn't go to the inquest. There is a lot she can't hear; the pain's too much. But she wonders what he looks like, the boy who drove the ute. EW’s mother: If I see a young-looking boy, I'm thinking, is that him? Is he looking at me? Does he know me, is that him? I don't want him in jail. I don't need that. But shouldn't he be at least inconvenienced in some way? Shouldn't he at the very least say, you can't drive for five years, you've got no licence? Reporter: If you are to conquer this grief, what do you believe [EW] deserves? EW’s mother: Justice. Reporter: How can this happen? How can you get justice? EW’s mother: The truth. We need it - we need the truth. Presenter: The Coroner has since reported that she was satisfied that Police investigation were thorough and adequate, and not compromised by the fact that [RC] is the son of a Police officer who was formerly stationed at Orange. Four Corners has put detailed questions to the NSW Police and the DPP, their responses can be found on our website. The Coroner also noted that the distinction in NSW between road related offences and private property offences should be reviewed. No such distinction exists in Queensland, Victoria or South Australia. Attachment B The ABC responded to the complainant as follows (13 March 2014 - text in bold represents the complainant’s original complaint to the ABC): We note your concern that the NSW Police perspective on this matter was not adequately covered by Four Corners, and that greater emphasis should have been given to the evidence and findings of the coroniaI inquest. However, it is important to understand that impartiality does not require that every perspective receives equal time, or that every facet of every issue is presented. While the Coroner determined that the police investigation was "thorough", the ABC understands that the families of the deceased and their legal representatives remain dissatisfied with the police investigation, as does [DW] QC, a respected senior lawyer who independently examined the police investigation of the case. We are satisfied these concerns about the police investigation are newsworthy and represent matters of significant public interest. The fact that those concerns differ from the conclusions of the Coroner does not preclude the ABC from reporting them. Four Corners is a current affairs program that seeks to provide context and analysis of complex news stories, that is why the program explored the concerns and criticisms of the police investigation and afforded the police repeated opportunities to respond to those concerns. We are satisfied that it is the role of the program to provide insight and examination of such a newsworthy story that also represents a matter of significant public interest and that there was no editorial requirement for the program to base its report around the Coroner's findings in this case. We note the program made it unmistakably clear to the audience that the Coroner reported that she was satisfied the police investigation was thorough, adequate and not compromised by [RC’s father] being a police officer; [Presenter]: The Coroner has since reported that she was satisfied that police investigators were thorough and adequate, and not compromised by the fact that [RC] is the son of a police officer who was formerly stationed at Orange. Four Corners has explained to Audience and Consumer Affairs that it made numerous requests to interview any of the police involved in the investigation into the deaths. At the time of the first request, the Deputy Coroner had not yet delivered her findings and the police advised the program they could not comment until she had done so. Once the Coroner had delivered her findings, a further request was made for an interview, which was again declined. I am advised that Four Corners then provided detailed written questions to the NSW Police, most of which were never addressed, but relate to some of the matters raised in your complaint. The fact that [RC] was the son of a police officer formerly stationed at Orange did not complicate matters. This issue was had no bearing on the investigation. We are satisfied the fact that [RC] was the son of a police officer formally stationed at Orange was newsworthy and a matter of public interest, and that references to this fact were relevant to the issue being reported and were presented in context. We note [EW’s] father specifically stated in the program that he had been called in by Orange Police and informed that the driver of the vehicle was the son of a policeman. [EW’s] father explained the police used the expression "conflict of interest" and he was lead to believe the investigation would be carried out appropriately. Deputy State Coroner, [name], also noted there were detailed submissions made by representatives of the family that revolved around the perception of a conflict of interest in the investigation of the deaths of [EW] and [WD]. We note your statement that the only suggestion of the police investigation into the incident being "conflicted" came from Four Corners. The ABC understands this concern is in fact held by the families of the deceased persons, their lawyers and the respected QC, [DW], who independently examined the investigation. This is sensationalist. Police obtained a version of the incident from [RC]. Police can only demand a version in respect to a motor vehicle collision if it occurs on a road or road related area. The legal obligation is discharged if a brief version is given by the driver or their legal representative. The brief details supplied are outlined in the statement of [Sergeant O] at paragraph 10. During brief questioning [RC] admitted to being the driver of the vehicle at the time of incident and agrees that he ran over some people that who were laying behind the car. He didn't see them and the swag was the same colour as the grass. Beyond giving brief details any confession admission or statement would be inadmissible unless a caution is administered that he was not obliged to say anything. This is required by the evidence Act s139. Further [RC] is a juvenile. Any further questioning of him must have taken place in the presence of an adult of [RC's] choosing. This is required by s13 of the Children (Criminal Proceedings) Act 1987. If the incident does not occur on a road or road related area there is no obligation on the part of the driver to say anything at all. The breath test was conducted by [Constable P] and the result on the device shown to [Sergeant O]. It is well documented that the alcolizer used gave a false negative reading due to the machine malfunctioning. As a result it is a reasonable inference that Inspector [name] drew when he conducted a stand up with the media that he didn't believe alcohol to be a factor. Note that he used the word "believe", and at the time he had no reason to doubt the accuracy of the alcolizer. We are satisfied the introductory statement for the program is an accurate summary of the lingering concerns about the police investigation that were featured in the broadcast. The report accurately conveyed the extent to which [RC] was questioned by the police at the scene, noted the police believed alcohol not to be a factor in the accident and made clear that it was later discovered the alcolizer reading upon which that assessment was based had been defective and had given a false reading. We believe it was made sufficiently clear to the program's audience why the officer believed alcohol not to be a factor at the time he made that statement. The report also included important context by noting the Australia Day party was predominantly a drinking party, an obvious fact made clear by the large quantities of alcohol consumed by the party goers, the number of discarded cans and bottles littering the landscape'· and the fact most attendees chose to sleep in the paddock as they were generally too inebriated to drive home. It should be noted that [JB] was not present at the party and that from an evidentiary point of view this is all hearsay. This information is what he has been told with no source identified. We note [JB] states “Basically all I was told was he wanted to leave early because he didn't want to get caught by the police ... “ making it clear that he did not attend the Australia Day party and was relating a conversation he had with those who had attended. Four Corners notes the Coroner on page 9 of her report said that [RC] could have been charged with summary driving offences under the Road Transport (Drive Licensing) Regulation 2008. The photograph shown on the program shows darker marks than the photo contained in the police brief. One must question whether the photograph had been altered. Four Corners has confirmed this was an official police photograph which was not manipulated or altered in any way. The executive producer has explained that all Four Corners programs are graded, or colour corrected, which lifts the contrast of every shot in the broadcast. For the offence of driving in a manner dangerous to the public the offence must occur on a road or road related area. The offence of "failing to assist" also requires that the incident occur on a "road or road related area". The issue of "road or road related area" was heavily considered as evidence in the review of the investigation. Case law was cited and the relevant case law attached to the statement of Superintendent [name]. Police expressed their opinion on the issue and commented that others may disagree with that view, however ultimately it was a matter for the court. This statement was clearly attributed in the broadcast as the view of respected senior lawyer, [DW] QC. Four Corners agrees that the issue of "road or road related area" is a crucial issue in this case that was widely considered in the coroniaI inquiry, with Deputy Coroner [name] referring to the anomalies with respect to the Road Transport Act 2013. The program noted the distinction and later in the report questioned why the police initially treated the incident as road related and later changed that position; Reporter: At 6am the first police officers from Orange arrived on the scene. They knew there was a possible double fatality. Problem was, it had happened on private property. Under NSW traffic legislation, driving offences can only be pursued by police if they occur on a road related area or a public road. This is not correct. Paragraph 10 of [Sergeant O] statement outlines the conversation. They ask for his details, if his parents were present, if there was an adult present who could act as a support person- this is answered in the negative, he admits to being the driver, that he does not have a licence and has not consumer alcohol in the last 15 minutes. He is asked "what happened" he provided the version that "I just ran over them. I didn't see them. Their swags were the same colour of the grass." The police identify he is very upset. Sgt [O] speaks to others and a short time later informs [RC] that he is under arrest for the purpose of a blood and urine test. Any further conversation had with this person would have been inadmissible due to no caution and the lack of presence of an adult of [RC]'s choosing. The [D] family's barrister, [name] is responding to specific questioning from the reporter regarding what police on the scene asked the driver about his alcohol consumption. On review, we believe this was clear from the context in which the questions and answers were presented in the broadcast. The ABC understands, at that stage, police were acting on an initial determination that it was a road related area, and proceeded to breath test the driver. Four Corners confirmed, based on the briefs of evidence, statements and transcripts submitted during the CoroniaI Inquest, that the driver was not asked whether he had been drinking at the party; REPORTER: The police counted up to 60 cars and the gates were open. They quickly decided the location resembled a public car park, and treated it as a road related area. This meant they could pursue driving offences and legally breath-test the driver. By now, nearly two hours have passed since [RC] ran over [WD] and [EW]. ACTOR (POLICE OFFICER): Have you had a drink in the last 15 minutes? REPORTER: Did police ask, at that moment, did they ask the driver [RC] have you been drinking? [The D family lawyer]: I think the question that they asked him from memory is, have you had a drink in the last fifteen minutes, rather than have you been drinking. REPORTER: We're talking about a potential double fatality here at the moment... [The D family lawyer]: Correct. REPORTER: ... police arrive. [The D family lawyer]: Correct. REPORTER: And the only question they ask of the driver... [The D family lawyer]: Is have you been drinking in the last fifteen minutes. REPORTER: Fifteen minutes. [The D family lawyer]: And um that, that's correct. REPORTER: The police didn't ask [RC] if he'd been drinking at the party. And that morning [RC] blew zero. The NSW Police Force Code of Practice for Crime states, "When you arrest a child take reasonable steps to tell the parents or guardian immediately". A copy of this section of the Code of Practice for Crime was referenced in the Statement of Superintendent [name] and a copy annexed to his statement. The program by absence of reference to the above "Code of practice for Crime" infers impropriety, when in fact the officers were discharging their obligations. In accordance with the code officers are also required to consider the child's welfare. We note your concern that this section of the report "infers impropriety" on the part of the officers, because the program did not refer to the NSW Police Force Code of Practice for Crime, which instructs officers to take reasonable steps to contact the parents or guardian of a minor immediately upon arrest. Four Corners has explained that it was not their intention to suggest it was improper for [RC] to be afforded the opportunity to contact his father at that time, regardless of the fact that he was a police officer formerly stationed in the area. The program states this segment of the report was focused on the [D] family's lawyer, [name], responding to questions from the reporter about the chain of events leading to [RC]'s conversation with his father. Four Corners has responded to your concern with the following statement; "NSW Police declined the opportunity to respond to questions about this phone conversation and any relevant Code of Conduct by way of repeatedly rejecting our requests for an interview." Audience and Consumer Affairs has taken consideration of the fact that the program made it clear the Coroner found the police investigation to be "thorough and adequate, and not compromised by the fact that [RC] is the son of a police officer who was formerly stationed at Orange". We note that it was also made clear that [RC] was under age and severely distressed by what he had done, so that it was to be reasonably expected that the police would seek at the earliest possible opportunity to have [RC] contact his parents. Audience and Consumer Affairs is satisfied that this aspect of the report is in keeping with the accuracy standards in section 2 of the ABC Code of Practice. For what purpose would the swag be forensically examined? Examinations are conducted for specific purposes. Identity of the deceased and the vehicle involved were not in dispute. Four Corners has provided the following statement in response to your question; The reporter was systematically reporting what occurred with the police investigation. In this case, the swag was not forensically examined. Furthermore, the reporter specifically wrote to NSW Police: "We have been informed that the swag wasn't forensically examined. Why wasn't it forensically examined?" NSW Police did not provide an answer to this question. Directory: media -> Broadcasting%20Investigations -> Investigation%20reports -> TV%20investigations media -> Biblical Eschatology Presentation by: D. 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