AFP's covert exercise

The Australian

An accusation of sexual assault has left the Australian Federal Police on the defensive about how such cases are handled, writes Ean Higgins '

January 15, 2007

IN East Timor in 2002, journalist Lynne Minion made the first of what she regards as three mistakes in trusting the Australian Federal Police. Minion, teaching local journalists as part of a UN project, took refuge in the AFP compound in Dili from violence against foreign women.

Minion, a veteran who has worked for the ABC, SBS and the Nine network, did not like the scene. "What I saw during that time of very close access to the serving AFP contingent there astounded me," Minion says. "They drank to excess, drove drunk, brawled, left their weapons unattended in Dili karaoke clubs, and behaved like a bunch of yobbos."

Still, it was safer inside the compound than outside, or so she thought. "The impunity with which they behaved, however, was taken to a perverse level when (a senior officer) developed an interest in me and one night, fuelled with grog, he ordered me into his room, locked me inside and tried to rape me, for hour after hour," Minion alleges. "That event continues to haunt me. It was devastating. Devastating, too, have been my attempts to see justice."

Five years later the case is, in the view of Minion and the commonwealth Ombudsman's office, if not AFP Commissioner Mick Keelty, not fully resolved. Over that time the AFP and the Ombudsman have launched between them three investigations into Minion's allegations.

According to the Ombudsman's latest special investigation, she should be presented with the evidence the AFP used to quash her original allegations of attempted rape. The Ombudsman's report says it is conceivable that if Minion is given the chance to respond to the evidence, the AFP might review the case and possibly reach a different conclusion. From the AFP's point of view, it has protected the force from allegations shown to have been wrong.

The case raises broader issues of how the AFP deals with complaints against its own. Since he took office, Keelty has refused to use the court designed to deal with such cases, the AFP Disciplinary Tribunal. His critics in the legal profession and the AFP officers' union claim he has, instead, chosen to deal with the AFP's dirty laundry through internal investigations in which AFP agents investigate their colleagues and produce confidential reports.

The tribunal is a public court in which hearings are open and can be reported in the media. Lawyer Jason Parkinson, a former police detective who represents, among other clients, AFP officers, tells The Australian Keelty and his senior lieutenants would much prefer to sack, demote or marginalise officers behind closed doors.

"Instead of giving someone a fair trial, they just deal with it managerially," Parkinson says. He says the AFP's refusal to go to the tribunal has forced him to mount expensive civil actions in the Federal Court. In one case in 2001, in which Keelty was a respondent, Parkinson overturned a decision by the AFP to recall an officer, Christopher Eaton, from secondment to Interpol in France.

The AFP had alleged Eaton, a highly experienced and decorated officer, had made improper use of the internal email system. Parkinson said it was a case where "some bloody policeman finds you guilty".

In a ruling against the AFP, judge James Allsop ruled that the AFP had denied Eaton procedural fairness and natural justice. Having not heard a case since 1999, the AFP Disciplinary Tribunal is being wound up in favour of a new body, the Law Enforcement Integrity Commission. But the extent to which Keelty is prepared to use it is uncertain. From the AFP's point of view, it is designed to deal with corruption, not other complaints.

The Minion case involves the same issue raised in the Eaton case, but from the reverse perspective. A judge found the AFP had denied Eaton natural justice by finding him guilty. Minion says she has been denied natural justice because the AFP dismissed her allegations against an officer without giving her the chance to respond to the evidence.

Asked why the AFP didn't take cases to the tribunal, AFP spokeswoman Jane O'Brien says a review commissioned by the AFP and conducted by former judge Bill Fisher in 2003 found the tribunal was not being used and recommended alternatives. She says if the internal investigation had found a possible case to answer in the Minion affair, it would have been referred to a criminal court.

The AFP internal investigation, and the initial Ombudsman's review of it, found Minion's claims of attempted rape were unsubstantiated. But the second, special investigation by the Ombudsman - which looked not at the original attempted rape allegation but at the way the AFP investigated it - found there may have been procedural shortcomings on the AFP's part. While it found the investigating officers did not act inappropriately or unprofessionally, the report recommended the AFP introduce systemic changes.

Minion went back to the Ombudsman requesting the second investigation into the process after what she claimed was a humiliating, biased investigation by the AFP.

"AFP investigators have shown themselves to be unable or unwilling to unearth the truth within this investigation," Minion says. "Even more alarming is that AFP investigators cannot uncover a crime that occurred within an Australian police compound. This has been a long, stressful process but I am determined to continue fighting for a just outcome."

Minion says she assumed that if she told AFP officers in the compound of the alleged attempted rape, they would take action. This was her second mistake. "Immediately after the event, I relayed the details of that horrible night to AFP officers serving in Timor who, despite their legislative obligations, failed to report the matter to their internal investigations unit. All up, I told six police officers and no investigation ensued."

It was two years later, after Minion published her memoirs of her time in East Timor, Hello Missus: A Girl's Own Guide to Foreign Affairs, that the AFP launched an investigation. Minion and her book received considerable media coverage, particularly in the context of her claims of loutish behaviour and the alleged attempted rape. That's when, Minion believes, she made her third mistake: agreeing to co-operate with the AFP internal investigation. "The AFP's investigative style has been to try to make the whole thing go away. They have tried to discredit me, intimidate me, even intimidate my mother," she says.

"They pulled my phone records - my mother's too - and, bizarrely, refused to allow me access to them. They continually demanded that I pinpoint dates and times, which was difficult, given the passage of time since that night."

The AFP internal investigation found Minion's claims to be unsubstantiated, based largely on the telephone records. The AFP concluded that during the hours Minion claims the senior officer tried to rape her, she was making mobile phone calls.

Minion said she wanted to review the telephone records to be able to see if, by virtue of time zones or getting the date a day or two out, there was an explanation. But the AFP did not provide them to her.

Of the six officers to whom Minion says she relayed the attempted rape allegations at the time, only one confirmed her story. As a result of the AFP investigation, he was the only officer to be disciplined: for not following proper reporting procedures.

The Ombudsman commissioned an independent investigator for its second inquiry, choosing Chris Hunt, a former head of the ACT Department of Justice. Hunt's investigation dismissed the most serious allegations levelled by Minion, that the AFP investigators, led by federal agent Allison Barrett, were biased against her, that they intimidated her and her mother, and that AFP agents had engaged in a cover-up.

He noted that Minion was questioned for a very long time - about five hours - and that this was longer than police were allowed to interrogate arrested persons. It was also nearly twice as long as the senior officer was questioned. However, he found no evidence Minion was compelled against her will to complete the interrogation or that the interviewing officers behaved inappropriately.

But Hunt found the AFP investigators could have done more to prepare Minion for the interview and encourage her to have a support person with her, and be more comforting when she became upset while relating the alleged attempted rape. There was "probably a bit more that could and should have been done", such as saying, "If you find this too distressing, just let us know", Hunt found. Despite being at times distraught, Hunt said, Minion "provided coherent, helpful and detailed answers".

Most important, Hunt supported Minion's claim that she was not given the chance to rebut the most important piece of evidence used against her: the phone charge records.

"It is clear that various perceived inconsistencies between Ms Minion's account of events and the CCR (call charge records) evidence were crucial in the conclusion (Barrett) reached that the sexual assault allegations were 'unsubstantiated' and 'unfounded'," Hunt says in his report.

"At no stage was the full range of perceived inconsistencies tested ... with Ms Minion. It does seem to me that it would be helpful if someone ... were to work through the detail of phone call issues with Ms Minion."

Hunt says it might turn out that "even if explained away, there is still not an adequate basis to commence proceedings. But it might well be that the finding would be more in terms of 'incapable of substantiation' rather than 'unsubstantiated'."

The Ombudsman suggests this principle of the complainant being allowed to respond to adverse evidence be applied to all AFP internal investigations where feasible.

Barrett, her co-interrogator, the senior officer against whom Minion made her allegations, and the officer who was disciplined for not reporting Minion's claims, all declined to comment to The Australian.

Federal Opposition justice spokesman Joe Ludwig says the new commission is the obvious place to deal with the Minion affair. Ludwig claims the case demonstrates a lack of transparency. "The parliament has moved to set up a Law Enforcement Integrity Commission with extensive powers to investigate exactly these sorts of complaints, and Labor backed that process," Ludwig says.

Despite Hunt's observations and Ludwig's call, the AFP does not appear inclined to reopen the case. O'Brien says there is "nothing as a result of this latest Ombudsman's review which would warrant follow-up inquiries or action".

Following Hunt's report, the Ombudsman's office has suggested the AFP discuss the phone records with Minion. Another AFP spokeswoman, Rebecca Goddard, says: "The AFP has no objections to meeting a request for the documents, but would need to make inquiries to ensure there is no legal impediment."

Goddard would not say when this would happen. She said the AFP would not answer further questions from The Australian on the Minion affair.

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ROOM FOR IMPROVEMENT

Excerpts from transcripts of the interrogation of Lynne Minion by the chief investigating officer, federal agent Allison Barrett, and a male officer.

In one exchange, the male officer keeps asking Minion the same question:

Male officer: "Did he ever provide you with any, was he ever violent towards you or give you any indication that he could become violent? Besides, obviously, the incident in the room, but I'm talking about violence as in a physical sense?"

Minion says the senior officer could be unstable and had problems with alcohol.

Male officer: "But did he react violently or did he, do you know what I mean, did he ever react violently to you, towards you or ...?"

Minion repeats her answer.

Male officer: "But in any other...?"

Minion repeats her answer.

Male officer: "But did he, did he, was he ever violent to you?"

Minion: "Well, holding me down and trying to stick his hands in my..."

Male officer: "Well, bar that. Was there any suggestion during the time, before, after, during...?"

In another exchange, Barrett repeatedly asks whether words allegedly said by the senior officer during the alleged rape attempt could have been interpreted as benign.

Barrett: "You actually say he uses the words, 'You can't leave.' In what sort of manner did he say them?"

Minion: "To me there was menace."

Barrett: "I mean, to understand where I'm coming from, you can say to somebody, 'Look, you can't leave,' or you can say to someone, 'You can't leave'."

Minion: "I felt it was the latter."

Barrett: "I mean, how did you feel?"

Minion: "I felt strongly intimidated and frightened. I felt strongly that it was the latter, that it was, 'You can't leave'."

Barrett: "So it wasn't a request?"

Minion: "No, it wasn't a request or a question or a suggestion. No, it was an order."

Minion discusses her allegations that other officers in the AFP compound in Dili say they failed to notice what she says were clear signs of obsessive or inappropriate behaviour on the senior officer's part.

Male officer: "At the end of the day, do you believe them to be mind readers?"

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