The Advertiser: Secret policy not to arrest suspects [18jun05] by Nigel Hunt
THE Office of the Director of Public Prosecutions and police have been accused of misleading the Kapunda Road Royal Commission by failing to reveal an unwritten policy not to arrest suspects in certain serious crimes. The bombshell accusation, made by counsel assisting Grant Niemann, came after former DPP Paul Rofe, QC, contacted the commission and revealed he had told police to report – rather than arrest – offenders in sexual assault and road crash matters.

Lawyers for both the DPP and police strenuously denied such a formal directive existed – rather, it was an accepted practice that developed over many years. Outside the commission, Mr Rofe confirmed he had encouraged the practice and had reinforced it to Major Crash officers. “There was no formal direction as such . . . but I can give evidence about a practice,” he said. Mr Rofe’s informal instructions to police are crucial to term one of the commission, which concerns the investigation on the night cyclist Ian Humphrey was killed by Eugene McGee.

Yesterday’s drama unfolded when Mr Niemann said Mr Rofe had “advised me that when he was DPP he had issued a direction” to police that in cases of sexual assault and major crashes, police should report rather than arrest the suspect unless there were exceptional circumstances. “He explained to me that because arresting the suspect created in the minds of the victims an expectation that prosecution action would follow, arrests in these circumstances would be undesirable,” Mr Niemann said.

“SAPOL and the DPP, I suggest, must have had institutional knowledge of this information and I would suggest to you, sir, may well have misled this royal commission into believing that the reluctance on behalf of Sergeant Hassell to arrest Eugene McGee was as a consequence of some ineptitude or failure on his part.” An agitated Commissioner Greg James, QC, said it was of “considerable concern” if such a directive had been given but the commission had not been advised.

“If there were such a direction in some form or other – even if not a formal direction under the DPP Act, but even an intimation from a serving DPP, a request or advice – and nothing has been said about it until now by those who would have had to know that that was a source of some culture, background, practice or otherwise within Major Crash, then the commission has been allowed to proceed on an entirely false basis,” he said.

He then issued two summonses – for DPP Stephen Pallaras, QC, and Police Commissioner Mal Hyde – ordering them to produce by 2pm any documentation or evidence of such a directive. Mr James then adjourned the hearing and took the extraordinary step of calling a press conference to appeal for anyone with information on Mr Rofe’s directive to contact the commission.

When the commission resumed at 2pm, DPP barrister David Lovell and Rick Halliday, representing Mr Hyde, both provided documents. Mr Lovell told Mr James the DPP denied it had “at any stage attempted to deliberately mislead” the commission and it was the DPP’s position there was never a formal or informal direction given. Mr Halliday told Mr James there had been no attempt by police to conceal any document relevant to the inquiry.