Opinion: Police Commissioner Richard Chambers argues there is a series of reasons why it was wrong for a media outlet to publish audio from the night the long hunt for Tom Phillips finally came to an end.
In September, I instructed police to investigate taking legal action against a media outlet over its use of police radiocommunications audio from the night a police officer was shot, and Tom Phillips died.
The legal opinion we received stated there was a clear case of a breach of the Radiocommunications Act in the use of the audio – and that if police opted to prosecute it would meet both the evidential and public interest thresholds required to do so.
Police has opted not to prosecute, but that should not be taken as meaning this is seen as a trifling matter. It is a very serious issue. However, I can see little benefit in dragging this into the courts if there are other ways to achieve the main aim - which is to ensure there is no repeat.
Should this happen again, this position on the option of legal action may change.
It continues to concern me that the media outlet made such use of the material. It also concerns me police was not given any opportunity to discuss it with them, prior to its use and that they left the content up after concerns were raised.
In my view, for reasons I will explain, the public interest was better served by withholding the material.
Three reasons for concern
There were three reasons for my concern. One, the distress it caused my staff who attended that night and their families. Two, the distress it could cause the family of Tom Phillips.
Three, because of the operational sensitivity of the material and the potential impact its release could have on the investigations that were underway.
The reason was not because of the story that the audio told, or because I thought the audio or coverage cast police in a negative light. It did not.
If anything, it showed the excellent police work that happened that night, including the value of rural police having an in-depth knowledge of their communities. It highlighted the skills of the tactical units and the capabilities of the Police Eagle helicopter crew. It showed forethought, good coordination and careful planning were all in play.
However, it did end with the shooting of a police officer and the death of Tom Phillips.
That means the period over which those radiocommunications happened will be scrutinised and investigated.
Every critical incident involving a police shooting results in an investigation by police and an IPCA investigation. In this instance, there will also be a Coronial Inquest.
The radiocommunications are crucial and sensitive evidence, as are detailed interviews with the staff involved and any witnesses.
The media outlet may have tried to act carefully by editing out segments of audio and distorting voices to try to disguise identities. That in itself could have the effect of altering the recollections of those involved on that night.
Radiocommunications give a version of events of what happened and that version must be tested by the recollections of all those involved. One officer’s recollection or experience may differ from that of another, or from the story that played out on the radio.
To use a sporting analogy, the radiocommunications are a commentary of what is happening in the centre of the field of play – but do not necessarily cover the whole field.
Set process after a major event
There is a set process that follows a critical incident to ensure that all versions of events are looked at.
First, the officers involved must have a 10-day stand-down period for their own welfare.
Police staff are human. Nobody goes to work on the frontline wanting to face such a situation and it weighs heavily on them, often for a long time afterward.
It is a time of great uncertainty because staff know they face an investigation into the actions they took, often actions that required split-second decision making under significant pressure. My staff are trained for that, but that does not make it easy.
They cannot be interviewed about their recollections of the critical incident and the part they played until that 10-day period is over. When they are interviewed, it is crucial that they give their own recollections – not a recollection that might have been altered by something they heard subsequently from someone else or seen in the media.
Until they are interviewed as part of the investigation, staff are told not to discuss it with each other, and to try to avoid media reports. In such a high-profile case, that is not easy.
All of these are reasons those radiocommunications are protected under the law.
There is also the wider issue of the chilling effect it could have on law enforcement officers’ ability to communicate freely.
In policing, the ability to communicate clearly with each other during a developing situation is crucial. It would be dangerous and put safety at risk if police felt they had to guard what they said because of a fear it will end up being used in the media.
Encrypted digital radio technology is being rolled out nationwide, and will limit, but not eliminate, the risk of this scenario.
Open door to the media
I always try to keep an open door to the media, because I believe they have an important role to do. I am not prone to overreacting to reporting, even when negative.
This is not a question of hiding from accountability or trying to keep information out of the public eye.
Nor was it an attempt to ‘gag’ the media, as one columnist appeared to argue.
Our experience is media outlets regularly assess whether the publication or broadcast of information they have obtained would jeopardise an investigation or legal proceedings. That is a responsible thing to do and shows good faith and judgement.
The outlet in question presumably knew they ran the contents at some risk.
Most other media recognised the sensitivity involved and opted not to follow the lead of the outlet in question.
I have no intention of changing my approach with the media because of this because that would not benefit the public that both police and the media serve.
This opinion piece was provided to media by the office of the Police Commissioner.
The morning's headlines in 90 seconds, including the Police Commissioner’s opinion on publishing leaked audio, two charged over a barbershop attack, and David Beckham and the King swap fashion tips. (Source: 1News)
Stuff Digital editor-in-chief Keith Lynch responds:
Police announced this morning they will not be prosecuting Stuff following an article and audio we published of police communications from before Tom Phillips was shot dead.
In an op-ed this morning, Commissioner Richard Chambers said that the police legal opinion was that there was a clear breach of the Radiocommunications Act.
He wrote that police would not seek to prosecute Stuff but, if they had decided to, those actions would meet the evidential and public interest threshold.
In fact no evidence was sought or tested with Stuff and, as with any such reporting of this nature, Stuff also carefully considered its legal position prior to publication.
We remain confident we did not breach any laws and we proactively communicated as much to police.
He cites distress caused to police and their families, to the Phillips family, and that publication could impact investigations underway.
He says the public interest would have been better served by not publishing.
We strongly disagree. Circumstances surrounding the hunt for Tom Phillips and his subsequent death remain wholly in the public interest.
As journalists, our job is to uncover information in a careful and responsible manner, seeking answers to uncomfortable questions and - sometimes - surfacing material that is challenging.
In the time leading up to publication of the police audio, our most senior editors carefully selected what would be included.
We were extremely careful to ensure there was no identifying information on the officers involved and we were of the view that there was nothing that could or would harm Phillips’ children.
There was no sensationalising of the audio. We spent time investigating and carefully verifying the information we had, and we were prudent in what was included, and what was omitted.
This was in stark contrast to what was occurring on social media platforms at the time, where unverified rumours and speculation about the shooting were running rampant.
Some of it was pure fabrication, including comment and discussion designed to lionise Phillips and the four years he had spent on the run with his highly vulnerable children.
At the time we published, Deputy Police Commissioner Jill Rogers described the article and audio as “grossly irresponsible” and said it “put at risk inquiries underway into the events that unfolded in Western Waikato”.
Chambers repeats those claims in today’s op-ed.
There was then, and still appears to be, no obvious basis to that statement. Any inquiry would include the communications, yes, but careful and responsible publication of parts of them could not hinder that process.
We fully appreciate that police are human beings, but the argument that Stuff’s reporting could alter recollections of those involved that morning is a hard one to make.
The audio is the audio. It cannot be changed or altered despite what others recollect.
Eyewitness accounts, video evidence, our own investigations to events, all of these will feed into what is almost inevitably a larger and more complex story.
Scrutiny of authorities is often challenging for media organisations. Scrutiny of how journalists undertake that role is also to be expected on occasion.
As we said at the time we published the audio, this scrutiny is not an act of hostility. It is a safeguard for accuracy which ultimately benefits everyone.
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