I am a professionally trained and experienced investigator. I regard myself as having special expertise in the proper conduct of investigations, and a sound knowledge of the skills and qualities required of a competent and value-free investigator. I have prepared a comprehensive critique, drawing attention to poverty of the method and quality of the Legal Services Commissioner’s investigation. Of course, I cannot expect readers to accept my critique of the Legal Services Commissioner’s investigation without first presenting my credentials as an expert in this field.
General experience and expertise as a professional investigator
As a member of the Victoria Police Force I have a great deal of experience in the investigation, not only of criminal offences, but also matters of public concern and matters of personal concern to members of the public.
Many investigations conducted by police commence as the result of personal observation, as well as being the result of public reports or complaints.
I have often been called upon to investigate “incidents” in order to determine whether or not they required police intervention. This is the first and most basic form of investigation undertaken when police are contacted about any matter.
All police are taught the importance of self-restraint in conducting own-motion investigations, and the need for impartiality in assessing the merits of a complaint received from a member of the public. In particular, professionalism requires a police investigator to be wary of those who seek to use the police as a tool of harassment or for purposes other than law enforcement.
As a general duties police member I often experienced circumstances where a report would be made to police, not because of a wrong perpetrated against the complainant or another party, but because the complainant sought to use police to intimidate others.
I also experienced circumstances where police members themselves would initiate own-motion investigations for the purpose of intimidating others, not only for their own personal purposes, but also to assist friends or acquaintances, usually for what may have been regarded as laudable reasons.
As a General Duties Sergeant of Police I was required to supervise junior police members in their investigations. I understood the need to be vigilant against own-motion investigations commenced because of a misguided sense of duty or personal interest. For example, it was not uncommon for a junior police member whose charges against a defendant were dismissed by a court to feel that an own-motion investigation might be a means by which things could be “evened-up”. In other words, the own-motion investigation could be initiated as a tool of police harassment.
Own-motion investigations were always the subject of particular scrutiny, and police members would be required to account for their decision to undertake them. Comments such as, “Let’s see if we can get him for this…” or “We’ll charge him, and see if he can jump it at court…” were indications that an individual, and not any particular conduct, was the focus of the investigator’s attention, and required supervisor intervention. Nowadays such improper use of the own-motion investigation is less common, as there are numerous layers of scrutiny in place, not only of the conduct of police members, but also of briefs of evidence submitted for prosecution.
Graduate of Victoria Police Detective Training School
After five years of General Duties police experience, I was selected for appointment as a Detective.
In 1986 I graduated as part of Course 134 from the Victoria Police Detective Training School (DTS). The aims of the DTS course are described as follows:
“The object of the Detective Training School is to provide a balanced, practical course of vocational training for police investigators in the latest investigational practices and techniques, and at the same time, to broaden the perspective of trainees by giving them an appreciation of other organisations concerned with law enforcement and the administration of justice. All Victorian detectives must qualify at this course before their appointments as detectives are confirmed…”
The DTS course assumes an intimate knowledge of law and investigative processes and procedures, but builds on these and develops them. The course also formalises a number of fundamental principles of investigation.
At the commencement of the DTS course a number of principles of investigation are advanced. The following is quoted from the DTS syllabus:
“The Fundamental rule of investigation
Investigators are often required to inquire into situations or events which are not the result of criminal design, but give that impression at the outset and cause a report of crime or suspect crime to be made. This fact inspires the fundamental rule of investigation:
THE INVESTIGATOR MUST FIRST ESTABLISH WHETHER OR NOT A CRIME HAS ACTUALLY BEEN COMMITTED.”
What is an investigation?
An investigation is an objective assessment of an act, omission, situation or event with a view to determining whether any breach of the law is involved or to assign responsibility for the occurrence. The evidence on which this assessment is based must be obtained within the limits of established rules of law and procedure. For the purpose of crime investigation, an investigation may be defined as follows:
AN INVESTIGATION IS A SEARCH FOR THE TRUTH, IN THE INTERESTS OF JUSTICE AND IN ACCORDANCE WITH THE SPECIFICATIONS OF THE LAW.
The investigator is the person who is charged with the responsibility of conducting an investigation into a particular crime or event.
His approach is completely objective and he is as much concerned with the exculpation of the innocent as with the conviction of the guilty. In this sense, he is a collector of evidence.
The process of investigation
It is the duty of the investigator to determine the truth of the matter under inquiry by collecting and evaluating all of the available evidence relevant to the subject.
The approach to crime investigation
The approach to crime investigation is based on a logical assessment of the people and the things involved in crime…
It must be remembered that evidence derived from people will have varying degrees of reliability, borne of human error, uncertainty and imperfection…Every effort must be made to obtain confirmation of their statements by independent means.”
The final sentence of the above quotations is particularly relevant to the way in which the Chief Justice dealt with my written complaint to her, and the manner in which the Legal Services Commissioner dealt with the complaint he received from the Chief Justice [See “Supreme Court of Victoria – Why the Chief Justice Must Resign“]
The DTS course also reinforced the importance of dealing with complainants, and assessing the complainant before commencing an investigation. This included a complainant who had commenced an own-motion investigation, such as a uniformed police member seeking to have detectives take over an investigation commenced by the police member him/herself.
The absence of a complainant would always prompt further preliminary enquiries regarding the motive of the police member in commencing and pursuing an own-motion investigation. As a detective I was always mindful that an own-motion investigation may be passed up to the detectives for investigation where the uniformed member felt that support would be needed for an investigation that could not be justified on objective grounds.
Commendation for professionalism in homicide investigation
Detectives rarely receive commendations. This is something of a policy in the Victoria Police Force, based on the view that detectives are investigation professionals, and are expected to operate at a level of expertise that would warrant a commendation for each investigation they undertake.
However, I was one of very few detectives to receive a commendation after single-handedly completing a protracted investigation into a suspected homicide. The investigation involved a variety of characters associated with the drug culture in the Dandenong area, and required a careful assessment of witnesses and suspects, many of whom could be both witness and suspect simultaneously.
This experience confirmed and reinforced the need for anyone undertaking an own-motion investigation to be completely value-free. This investigation required a number of collateral own-motion investigations to be undertaken, but these were always reported supervisors for scrutiny and approval because of the risk of distraction, compromising of the investigation and possible allegations of corrupt conduct.
At the inquest the Coroner took the unusual step of making comments about my conduct of the investigation, and this resulted in my receiving a commendation as follows:
“Detective Senior Constable Mericka commended at District Level for a painstaking, thorough and difficult investigation in the preparation and presentation of an Inquest Brief. The efforts of the member reflect great credit on his professionalism and were the subject of high praise from the State Coroner.”
[See “Commendations” for further details and documents]
Experience in Disciplinary Matters
My experience and expertise as professional investigator and as a police prosecutor (I also served as a member of the Prosecutions Division at Melbourne Magistrates Court, Prahran Magistrates Court and the Melbourne Children’s Court) came to the attention of what was then the Victoria Police Internal Investigations Department, and I was invited to apply for promotion to the rank of Senior Sergeant in the Discipline Advisory Unit (DAU).
The DAU was the prosecutions division of the Internal Investigations Department, and members of the unit were required to provide advice direct to the Assistant Commissioner for Internal Investigations on matters associated with disciplinary charges resulting from investigations into police misconduct and corruption.
Again, experience in the DAU reinforced the need for care in circumstances where police members initiated own-motion investigations, because of the inherent bias involved in a decision to undertake such an investigation and ever present risk that the principles of investigation (see above) could be overlooked or deliberately ignored.
[See “Commendations” for further details and documents]
Expertise regarding investigations
I regard myself as having special expertise in relation to the proper conduct of investigations, and the skills and qualities required of a competent and value-free investigator.
I submit that my expertise in this area is such that I am entitled to advance an expert opinion as to the conduct of the Legal Services Commissioner’s own-motion investigation and his personal involvement as an investigator, despite my obvious interest in the matter and the perception of bias that necessarily arises from my own personal interest in it. [See “Legal Services Commissioner – Bogus Investigation“]