Chapter 3
ADF's investigative service
3.1
In its 2005 report, the committee expressed grave concerns about the
ADF's capacity to conduct rigorous and fair disciplinary investigations.
Indeed, it was of the view that the ADF had 'proven itself manifestly incapable
of adequately performing its investigatory function'.[1]
Responding to the committee's finding, the government agreed that the then
military police investigation capability had significant shortcomings and was
inadequate for dealing with more serious offences not referred to civilian
authorities. It accepted the committee's recommendation to conduct a
tri-service audit of the service police to establish the best means for
developing investigative capabilities.[2]
In February 2006, the CDF commissioned an audit into the ADF's investigative
capability.
3.2
On 31 July 2006, the Report of the 2006 Audit of the ADF
Investigative Capability was presented to the CDF and made public in
December 2006. This audit was not the first review of the ADF's investigative
capability. Inquiries into such matters date back to 1998 with the Commonwealth
Ombudsman's Own Motion Investigation into How the ADF Responds to
Allegations of Serious Incidents and Offences.[3]
This report and numerous subsequent ones have been consistent in identifying similar
problems including:
- lack of experience and inappropriate training of those
undertaking the investigation;[4]
- inadequate education and training in DFDA operation, for both
legally and non-legally qualified or educated users;[5]
- inadequate questioning techniques, recording of interviews and
statement taking, for example, pursuit of irrelevant issues in witness
interviews, use of inappropriate questioning techniques and failure to put contradictory
evidence to witnesses for a response;[6]
- lack of guidance about evidence gathering and analysis;[7]
- absence of a structured process for supervising or monitoring the
progress of investigations;[8]
- inadequate record keeping;[9]
- failure to accord procedural fairness to Service personnel,
especially in relation to the conduct of secret investigations under the
auspices of the DFDA;[10]
- secrecy in the investigation process, poor management practices,
inadequate resourcing, and excessively long investigation and offence clearance
times;[11]
- delayed investigations;[12]
- unreasonable exertion of influence from commanding officer during
investigative processes;[13]
and
- procedural fairness and competence issues in investigation
conduct.[14]
3.3
Importantly, the more recent 2006 audit found that the ADF's
investigative capability was in serious decline. It contended that despite
being reviewed, re-organised, restructured and downsized over the last fifteen
years, the service police still lacked 'clear purpose and direction, a senior
"champion" or advocate to advance their interests, adequate
leadership, and modern policy, doctrine, training and tradecraft'. According to
the audit, a higher tempo of operations, integrated military and civilian
workforces, and new investigative challenges were deemed to exacerbate the 'plight
of the investigative capability'.[15]
It argued that from senior commanders down, and even among service police
themselves, there was 'no shared view as to the place, purpose and standing
of investigators in fulfilling the mission of the contemporary ADF'.[16]
The audit report concluded that the service police investigative capability
had:
...reached the point where fundamental questions could be asked
whether the service it provides justifies the significant resources expended on
it. However, given the Government’s decision that the ADF will retain its
investigative capability, remediation must not be further delayed. It is very
likely that unless action is taken as a matter of priority, the capability’s
depleted condition will eventually be evidenced either by its collapse or by the
inability of the ADF to respond appropriately to a serious, sensitive event.[17]
3.4
In the government's response to the committee's 2005 findings on
investigative capability in the ADF, Defence decided to establish a joint ADF
investigation unit to deal with more serious disciplinary and criminal
investigations. The ADF Investigative Service (ADFIS) has since been
established under the command of a Provost Marshal ADF (PMADF) who is also
responsible for implementing the recommendations of the tri-service audit of
the ADF Service Police Investigative capability. In June 2008, the CDF observed
that steady progress was being made with 45 of the audit's 99 recommendations
completed, 27 close to completion and 4 that would be continuing activities.[18]
3.5
Even so, the committee understands that building up the investigative
section will take time. It was informed that the reform process and building
the appropriate capacity in the ADFIS would take 'at least five years'.[19]
Committee view
3.6
The committee notes the anticipated 5-year timeframe for building up the
capability of the ADFIS to a satisfactory standard.
Recruitment to the ADFIS
3.7
In 2005, the committee reported that service police members were of the
view that their organisation was in crisis. They complained of poor morale,
being overworked and under-resourced, loss of confidence, lack of direction and
a sense of confusion about their role and purpose.[20]
The 2006 audit report described a military police service where 'investigator
motivation and morale were suffering and capable people were considering
leaving the ADF'.[21]
It found that the viability of the investigative elements of the three services
was seriously threatened on several fronts noting:
- all are experiencing problems related to allocated staff numbers
and their quality and experience; and
- many investigators have high workloads, poor administrative
support and outdated and inadequate information technology support systems.[22]
3.8
In June 2008, the CDF informed the committee that recruitment and
retention of suitable personnel remained a principal concern and that it was
likely to be some time before ADFIS would 'be able to achieve its full
complement'. He acknowledged that this under resourcing was 'probably a major
factor in our ability to deal with the workload'.[23]
He explained progress to date:
The ADF Investigative Service has been in existence for just
over a year now, and I am most encouraged by the measures being implemented to
achieve best practice policing within the ADF. It will, however, take time to
establish and develop the investigative capability to its optimum potential...Recruitment
campaigns and improvements to pay and conditions are being examined to rectify
this shortfall.[24]
3.9
The committee had before it correspondence from a person who stated that
he had been identified as a suitable candidate for direct entry recruitment
into the Army Reserve component of the ADFIS.[25]
He informed the committee:
Within a two year period, despite a sustained and concerted
effort by the Provost Marshal and his staff, a deadline for my appointment is
still outstanding.[26]
3.10
When asked about this case, the Provost Marshal, Colonel Tim Grutzner,
explained that currently the ADFIS was manned at 58 to 60 per cent strength.[27]
He advised the committee:
There are outstanding policy issues, in terms of bringing
qualified personnel, such as civilian police—serving or exofficers—into the
Army, Navy or Air Force Reserves as direct entry officers. In this case, the
individual wishes to join the Army, and the policy now does not provide for a
direct entry officer to join the military police. So there are a number of
policy issues that we need to overcome for that.[28]
3.11
The CDF reminded the committee of the five-year implementation time, but
indicated that in this case, recruitment processes would be accelerated. He
said:
I think it is absolutely imperative that we expedite this
process and I will take that on board. We will come back to it next time we
speak and let you know how it is going.[29]
Committee view
3.12
The committee notes the CDF's undertaking to expedite recruitment
processes to the ADFIS and urges the ADF to do its utmost to ensure that any
shortfall in staffing for the ADFIS is remedied promptly.
Improvements in capability
3.13
According to the Provost Marshal, there are positive signs of improvement
in the investigative capability of the ADFIS. For example, he was of the view
that the briefs of evidence were improving.[30]
The DMP also noted that there had been a slight improvement in the standard and
quality of briefs of evidence. She was of the view, however, that there was
'room for improvement.'[31]
She expressed concern that her office was still receiving a brief of evidence
that shows that the investigation had taken between six to twelve months to
complete. The DMP also indicated that many briefs 'clearly disclose that no
service offence could be successfully prosecuted.'[32]
In evidence before the committee, she stated:
But over the last 12 months or so, particularly the last six
months—and I think us being in Canberra has enhanced this, as well as ADFIS
finally having got home and settled down some of their procedures—we have been
able to form an extremely good liaison with them and a number of the other
service policemen throughout Australia. For instance, I have instructed my
prosecutors that, irrespective of whether the trial will proceed by a not
guilty or a guilty plea, they encourage the service policemen who investigated
it to attend. I think that exposes them to the problems that you have with
evidence; they see it and they can learn vicariously in relation to how they
should go about investigating. We have very good liaison with the headquarters
at ADFIS, and their operations officer. I admit to still having some
difficulties...[33]
...
Having said that, I think it has improved—certainly the quality.
We still have a number of matters whereby we repechage and seek guidance. That
has been better received than it was initially. In the early stages when I
asked for things to be redone or for evidence to be got in relation to certain
matters, people were taking umbrage that I was being highly critical of their
work. I think slowly but surely there is now a realisation that I am not being
critical. They are making the same errors less often. Overall, I think their
main problem is that they simply do not have enough. I do not know how you
overcome that problem.[34]
3.14
The IGADF took the opportunity to inform the committee about the average
time taken in the summary system. To bring matters to trial at the summary
level in 2007–08 took 11 days for Navy, 15 days for Army and 28 days for Air
Force. In the case of Air Force, about 60 per cent of those were actually
handled in less than 21 days.[35]
Committee view
3.15
The committee notes the comments by the DMP and the IGADF indicating
that the quality of investigations undertaken by ADFIS is improving.
Nonetheless, as demonstrated by the committee's 2005 report and the more recent
audit of the Report of an Audit of the Australian Defence Force investigative
capability, the capability of the Service Police is starting from a low base.
In particular, the committee notes the findings of the audit report that ADF
investigative capability is in 'serious decline' and that, even if approached
with 'unremitting resolve and commitment', remediation is likely to take no
less than five years'.[36]
The committee also notes that Defence has made a commitment to conduct a
follow-up audit to determine the progress and effectiveness of the undertakings
contained in the ADF's response to the audit report. According to Defence, this
audit will form part of the broader independent review of the enhancements to
the military justice system.
3.16
Although there have been many reviews of the ADF's investigative
capability, the need for continuing monitoring and review is of the utmost
importance. The committee supports Defence's intention to conduct a follow-up
audit and also recommends a comprehensive and independent review after the
5-year remediation period (see recommendations 4 and 5 at paragraphs 3.34 and
3.35).
3.17
The committee would also like to see the IGADF assess progress and report
in detail on the implementation of the recommendations contained in the audit
report. The committee would also encourage the DMP to continue to draw on the
experiences of her office to comment in her annual report on the quality of
briefs produced for her office by the ADFIS.
Scene of incident
3.18
The criticism directed at the poor standard of investigations applies
with equal force to administrative inquiries into serious accidents or sudden
deaths. Based on evidence presented to the 2005 inquiry, the committee found
that the immediate stage involving activities such as securing and examining
the scene of an incident was one area of concern. At that time, a number of
relatives of members of the ADF who had committed suicide were highly critical
of the initial examination. Many believed that the investigation was flawed,
for example, because the respective investigation was incomplete, that evidence
was overlooked or important questions not asked.[37]
3.19
The audit into the ADF investigative capability supported the committee's
findings. It recognised the need for all service police to have 'good crime
scene skills in order to preserve and protect the scene and any evidence'. One
of its many recommendations went to the basic skills required of service
police:
SP and investigator training needs be reviewed to emphasise and
reinforce the basic core skills and competencies of policing. These include the
taking of statements from witnesses, interviewing suspects and offenders, and
the rules governing the admissibility of evidence, including the value and use
of exculpatory as well as inculpatory evidence.[38]
3.20
Despite repeated calls over many years for the appropriate care and
management of incident scenes, the audit also found the urgent need for improvement
in this area and recommended:
The proper care and management of incident and crime scenes, at
least in terms of basic protection and preservation techniques, ought to be an
element of all pre-command training courses in the ADF and be reinforced periodically
during career advancement.[39]
3.21
In response to the recommendations of the audit report, the ADF stated
that it would include the proper care and management of incident and crime
scenes as an element of all pre-command training courses in the ADF.[40]
3.22
The findings of the Report of the Board of Inquiry into the Death of
8229393 Private Jacob Kovco, presented to the CDF on 27 October 2006, further underlined the concerns about the competence of investigating authorities in
the ADF. It emphasised the need for immediate and decisive action by the ADF to
rectify the many problems besetting its military police service. In particular,
the report highlighted inadequate education and training of those undertaking
the investigation, poor questioning techniques, recording of interviews and
statement taking, and lack of process, monitoring or quality control.
3.23
To be more specific, the Report of the Board of Inquiry found
shortcomings in ADF processes concerning the handling and preservation of
serious incident sites and physical evidence and of the passage of information
about the details of serious incidents.[41]
For example, the inquiry found that the room in which Private Kovco died was
not properly secured for the preservation of all evidence in the room. The
Board stated, 'Put simply, there were too many ADF personnel entering Room 8
after the shooting'.[42]
3.24
It its second progress report tabled in March 2007, the committee was
cautious in accepting that the ADF's undertakings to improve it investigative
capability would be successful. Despite obvious progress, the committee's
confidence was tempered by the repeated failures of the ADF to implement
effective reforms following previous reports and reviews of the investigative
capability of the military police service. It should be noted that
recommendations to improve the investigative capability of the service police
were made in 1998 by the Commonwealth Ombudsman; by the Joint Standing Committee
on Foreign Affairs, Defence and Trade in 1999, again by the Joint Standing Committee
in 2001; by Mr J. C. S. Burchett Q.C. in his 2001 report into
military justice in the ADF; the IGADF's commissioned report into the East
Timor SAS investigation (confidential document); the 2004 Ernst & Young
Report; and by this committee in June 2005.
3.25
Following each report, the ADF indicated that reforms were under way
that would address the many problems plaguing the military police services. For
example in January 1998, the Commonwealth Ombudsman stated:
Looking ahead, during 1998 the ADF is intending to commence a
review into the tri-service investigation and policing capability for the ADF,
which I understand will also address training issues. I am satisfied that every
effort is being made to ensure that Service police will be adequately trained
in the future, and that accreditation processes will promote adequate guidance
and documentation for their investigative functions.[43]
3.26
The same inadequacies, however, remain. The committee notes the repeated
failed attempts to improve the capability of service police and is looking for
certainty that on this occasion definite and lasting improvements will be made.
3.27
Problems with the proper management of the scene of an incident,
however, go beyond the capability of the service police and involve the activities
ADF members before the investigators arrive. In May 2007, Defence informed the committee
that:
Incident scene initial action and preservation training
('REACT') has been included as an element of all force preparation training for
ADF personnel deploying on operations and will be included in relevant
single-Service pre-command and career training courses.[44]
3.28
In December 2007, well after deficiencies with regard to management of
evidence were brought to light following the death of Private Kovco, the inquiry
into the death of Private Luke Worsley in Afghanistan also identified failures.
The report found that Private Worsley's clothes and equipment had been
destroyed prior to inspection by the Investigating Officer (IO). The inquiry
stated:
Whilst not an issue in this case, care should be exercised for
future matters where retention of evidence may be important. The IO was unable
to identify a current policy detailing the management of personal equipment and
clothing in the circumstances of this incident.[45]
3.29
While acknowledging that ADF members are acting with the best of
intentions, it appears, from an investigation perspective, that the scenes of
serious incidents are still being compromised.
3.30
The 2008 inquiry into the death of Sergeant Matthew Locke in Afghanistan
also found breaches in post-mortem procedures that indicated 'a weakness in the
knowledge levels of deployed personnel and possibly others preparing to
deploy'. It stated:
It is conceivable that such a knowledge weakness could lead to a
catastrophic loss of evidence in the event a criminal act is apparent. It
remains a matter that warrants clarification to ensure force preparation and
ongoing deployed force awareness of post-mortem procedures is sufficiently
adequate.[46]
Committee view
3.31
The committee notes the high priority that the ADF has placed on
improving the capability of its investigative services. The recent
investigator's reports cited above highlight two important factors:
- much work remains to be done in training ADF personnel on the
correct management of the scene of an incident, particularly the initial stage
of an investigation including before the investigating officer arrives on the
scene; and
- the value in making the investigating officer's report into a
sudden death or serious incident public—although this reporting may expose
deficiencies in the handling of an incident, it is an important accountability
and learning tool.
Conclusion
3.32
The standard of the ADF's investigative capability has come under
serious, sustained and justified criticism for many years dating back at least
to 1998. Over that time little progress has been made toward rectifying
identified failings. If the reforms recently initiated and those still to be
implemented are to take effect the ADF needs to refocus, develop a plan with
clearly stated objectives for improving the ADF's investigative capability and
make a concerted effort to achieve these objectives. Recruitment and training
is a priority. The process of building the ADF's investigative capability should
be monitored and assessed regularly.
3.33
The committee suggests that a senior officer or team similar to the MJIT
have responsibility for reinvigorating the reform process by assessing progress
in implementing change, reviewing the remediation plan and reporting to the CDF
as soon as possible on the findings.
Recommendation 4
3.34
The committee recommends that in 12 months, Defence report to the committee
on its progress implementing reforms to improve the ADF's investigative
capability.
Recommendation 5
3.35
The committee recommends that the government commission an independent
review of the ADF's investigative capability at the conclusion of the 5-year
remediation period.
3.36
In addition, the committee draws its concerns about problems with the
ADF's investigative capability to the attention of Sir Laurence Street. It
would welcome his advice on the approach being taken by the ADF to rectify
these deficiencies and any suggestions his team might have on how the ADF's
investigative capability could be improved.
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