‘Flawed’ Ombudsman’s report into bugging scandal slammed

SYDNEY, AUSTRALIA – January 30:Catherine Burn,Deputy Commissioner, NSW Police Force, appears at the INQUIRY ON THE CONDUCT AND PROGRESS OF THE OMBUDSMAN?S INQUIRY ?OPERATION PROSPECT? at Macquarie Room, Parliament House, on January 30, 2015 in Sydney, Australia. (Photo by Daniel Munoz/Fairfax Media via Getty Images)_55R4121.jpg Photo: Daniel Munoz

An Ombudsman’s investigation that has implications on who may become the next NSW police commissioner has been slammed as “flawed” and carrying “limited weight” by the state’s criminal intelligence agency.

The NSW Crime Commission on Tuesday took the extraordinary step of making public its damning response to the NSW Ombudsman’s 900-page report into an internal police bugging and phone tapping operation.

Known as Operation Prospect, the four-year, $10 million investigation by the Ombudsman was hoped to bring an end to the long-running police bugging scandal that has plagued the top level of the force for years.

The report, released in December, made a series of adverse findings against the actions of the NSW Police, the NSW Crime Commission and officers attached to both organisations.

Among those criticised were Deputy Commissioner Catherine Burn and former deputy commissioner Nick Kaldas, two high-profile applicants to replace Andrew Scipione as the next police commissioner.

Mr Kaldas and Ms Burn have previously disputed the Ombudsman’s findings and now the NSW Crime Commission has said Operation Prospect was “marred and rendered largely ineffective by the unfair procedures adopted and the mistakes of law and fact contained in it”.

“The Prospect investigation has taken over four years and the Report occupies 882 pages,” reads the NSW Crime Commission response, dated February 21.

“Notwithstanding the time and effort involved, the NSWCC considers that the Report carries limited weight.

“The procedures adopted in the publication of the Report have been flawed and many of the findings and recommendations are based upon errors or fact and/or law.”

The 28-page response, which has been placed on the Commission’s website, claims the Ombudsman’s investigation “lacked procedural fairness”, misled witnesses and that its findings and recommendations are “technically invalid and of no legal effect”.

Those recommendations included that the Crime Commission apologise to 15 people who were targeted in the police bugging scandal.

The commission said it would not be apologising.

“The purpose of this response is to place on record the general views of the NSWCC of the adverse findings made against it, and to explain why most of the recommendations will not be followed.”

The commission’s critical response to Operation Prospect was handed to the NSW government several weeks ago as it makes a decision on who will replace Mr Scipione in April.

Mr Kaldas has previously made similar claims that the investigation lacked procedural fairness and unsuccessfully sought an injunction to delay its release, while Ms Burn issued a lengthy statement repudiating the findings.

Ms Burn’s and Mr Kaldas’ chances of a promotion have been hampered by the long-running bugging scandal and subsequent investigation by Ombudsman.

Ms Burn was the team leader of an internal affairs unit that bugged many innocent police and civilians, including Mr Kaldas and his family, more than 15 years ago.

The Ombudsman’s report found that Mr Kaldas could face criminal charges for giving “false and misleading testimony” in a secret hearing over the bugging scandal, while Ms Burn engaged in “unreasonable” and “unlawful” conduct.

The Crime Commission’s decision to publish its response came after the acting NSW Ombudsman Professor John McMillan took the unusual step of releasing a statement saying despite media reports he had not seen criticism of his report by the Crime Commission.

He urged any party or lawyer who disagreed with the Operation Prospect report to communicate their views with his office in writing.

Professor McMillan also denied there was any “agenda” in the investigation and he had “no stake in the outcome”.

“Our objective was to place on the public record our analysis of the issues and the evidence, and my findings and recommendations,” his statement said.

“This was done after an extended period of investigation, consultation and analysis, including a comprehensive procedural fairness process for parties who may be adversely affected by the report.”

The NSW government is expected to announce Mr Scipione’s replacement within weeks.

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