Do police make-up evidence to get convictions?

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Queenslander Police

In NSW, section 317 of the Crimes Act 1900 makes it a criminal offence to tamper with evidence.

The section says that anyone who attempts to mislead the court by fabricating false evidence, by making use of false evidence or my concealing, altering or destroying evidence faces a maximum of ten years imprisonment. The section applies to civilians as well as police officers.

Tampering with evidence can take many shapes and forms, and police have certainly been known to manufacture evidence in order to secure convictions.

In fact, the police practice of fabricating confessions became so common at one stage that it was given a name: “verballing”.

Thankfully, that practice became less common after laws were introduced generally requiring police to record interviews with suspects.

One unfortunate victim of police verballing was Christopher Duke.

Duke was only 18 years old when police turned up at his Bathurst home, planted heroin in his wallet and verballed him, claiming that he admitted his guilt.

On this evidence alone, the jury convicted him of supplying heroin and sentenced him to two years in prison. He served his time but, when released, struggled to find a job or to recover from the injustice of the ordeal.

The true situation only came to light several years later during the Police Royal Commission when the officers admitted what they had done. Several other instances of verballing by members of drug squads and others police units were also revealed.

Duke’s case is unusual because the truth ultimately came out, but there is little doubt that there are many unexposed cases where people have been found guilty and sentenced to imprisonment based upon fabricated police evidence.

Beware of the camera

A case that is currently going through the US courts has re-ignited debate about whether there is a systemic problem with police fabricating evidence to secure convictions.

Joe Fawaz is the owner of a business called Southwest Metals in Detroit, Michigan.

Fawaz has launched legal action in a US Federal Court after allegedly catching a police officer, Sergeant McKay, planting incriminating evidence in his workshop.

Fawaz came to police attention after unknowingly purchasing stolen metal wire. He cooperated with police after becoming aware that the wire was stolen, and then helped police with more than 20 prosecutions.

But he claims that since that time, officer McKay has developed a personal vendetta against him, making a concerted effort to damage his business by issuing parking tickets to his customers, towing away their cars and confiscating business equipment.

The ongoing saga reached a climax when, according to Fawaz, the officer planted wire on his premises during a search of the premises.

According to Fawaz’s lawyers, McKay is captured on CCTV footage walking around the storage room, finding nothing and then leaving. She is allegedly seen returning a short time later, looking left and right in an apparent attempt to ensure that no one is around, then squatting in the corner and “miraculously returning with a very small piece of wire” which she then alleges to be stolen.

When the officer triumphantly produces the wire to Fawaz, he is visibly surprised – before checking the surveillance tapes.

After viewing the footage, Fawaz launched legal action in the Federal Court seeking a restraining order against officer McKay. He claims that he never had a problem with authority until McKay joined the force and asserts that the CCTV footage clearly shows McKay planting the wire in an attempt to frame him.

Police deny any wrongdoing and are defending the ongoing proceedings.

Meta-data retention laws

Concerns regarding police manufacturing cases have been re-ignited here too, after the Senate passed laws requiring Internet Service Providers to retain 2-years of subscriber data and to make it available to 13 law enforcement agencies without them having to obtain a warrant.

As outlined in previous posts, it is feared that police and other agencies will selectively use parts of a person’s data to misleadingly create a picture that the person is engaged in criminal activity, which can in turn be used to ground the “reasonable suspicion” necessary to charge and prosecute them, or to bolster cases against them.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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