Peter A Clarke

Today’s Times article The art of interrogation is a fascinating, though disappointingly brief, analysis of  the difference between interrogation, favoured by US law enforcement, and the interview, as practised by the UK and Australian police.  The broad conclusion is that the interrogation technique is more about getting a result than the truth of a matter and is manipulative in both process and outcome.  The interview, by contrast, is therefore a more effective and ethical approach to investigating crimes.  In the main it is hard to argue with that. But…….. I have read enough records of interview to see police run with both approaches in the course of a sitting.  

In that vein it is sobering to read how the police behaved in Ogden v Bells Hotel Pty Ltd [2009] VSC 219 (5 June 2009).  Williams J, not noted for hyperbole, recounted how the police dealt with a suspect (with questionable basis) during a raid and the subsequent interview:

108 On 3 April 2006, members of the Armed Offenders Squad arrived at Ms Ogden’s house when she was asleep in bed, at 6.30 a.m. They stated that they had a search warrant and were looking for $50,000 and a gun.

109 In the course of the search that followed, a flower decoration which police had put on the floor, fell over and drawers in a bureau and cushions on a couch were disarranged. The linen closet contents were pulled out onto the floor. Police were at Ms Ogden’s house for about an hour before taking her for questioning.

110 Ms Ogden had been told to get dressed and had felt humiliated and degraded when a policewoman would not let her visit the toilet without inspecting her used sanitary pad. Ms Ogden described the police conduct at the house as very distasteful.

111 Seventeen year old Mr Ben Ogden was present during the raid. His mother was handcuffed and driven away in the police car. He said that the police officers who attended were “confronting” in the sense that they were dressed in suits and seemed “more official” than a normal policeman; they were also wearing side arms.

112 Mr Ben Ogden did not, however, find the police aggressive, intimidating or frightening and disagreed with the proposition that they burst into the house. He denied that they acted in a threatening manner towards him, but they did warn him that he would not see his mother for ten years and said that she was under arrest. He was upset by seeing his mother led off in handcuffs and when the police told him to say goodbye to her because he would not see her for ten years. He could also see that his mother was very upset. He did not understand what was happening because he did not believe she had committed the robbery. He then rang his father, Dr Ogden, for help and advice.

113 A number of additional, inappropriate things subsequently happened to Ms Ogden. On the way to the police station, she was asked whether she had a psychological problem and police laughed. She was told she would go to gaol for ten years and that police would extract a confession from her by the end of the day, using means available to them. During her interrogation, she was informed that she was stupid and brainless and that a robber who had been sitting in the same chair had “gone away” for about 40 years and that the same thing would happen to her. Police spoke to her in a derogatory manner. They accused her of theft. They frightened her and she found them threatening and verbally abusive. They repeatedly put it to her that she was involved in the robbery and should tell them about it.

114 Ms Ogden was terrified and suffering from panic attacks and a high level of anxiety. She had not taken her prescribed medication that morning and asked police repeatedly to give it to her from her handbag, before it was provided. She felt very thirsty and, although police gave her drinks, she felt that her thirst had not been quenched.

115 The manner of the interrogation was aggressive and police pounded the table with their fists. They led her to believe that they were interviewing Mr Drivis and intimated that she and he had been involved in the robbery together. She gained the impression that they were suggesting Mr Drivis had made admissions to that effect and that she might as well do so too. Ms Ogden was also told that if she attempted to complain about police conduct or about “Billy Bell’s Hotel”, she would be charged with robbery. She believed that threat. Police also said that they would get back at her, by ensuring that her children lost their driving qualifications for some reason.

116 Ms Ogden was eventually released without charge at about 4.30 p.m. As she was walking out, a policeman accompanied her, bashing his hand along lockers in the hallway. He asked “Do you like the sound of that, Sue?” and “Look at this, Sue, look what I can do”. She regarded that as bullying. She also thought that police would try to frame her for the robbery, even though she knew that it could not happen. She agreed with the proposition under cross-examination that police behaved like a pack of animals towards her and that they gave her no prospect of a “fair go”.

Charming.  Anybody can say and do things they would dearly love to take back and hide from view.  The problem is that police have considerable powers to detain and question.  Thuggish behaviour, as recounted above, is terrifying to the average person not to mention the simpler and more fragile types who get sucked into the criminal justice vortex.  Also, there really is no excuse for bullying.  Ogden wasn’t a hardened crook as the police well knew.  In that light the way the raid and interview was conducted was nothing short of a disgrace.  For another example on how things can go badly wrong it is sobering to read the very long but comprehensive decision by Smith J in  Walker & Anor v Hamm & Ors, Walker & Anor v Carter & Anor [2008] VSC 596 (19 December 2008).