John Kevin BOURKE

Within a few weeks of M5 going to work, Justice Graham Barr of the NSW Supreme Court had approved a listening device warrant that allowed M5 to bug 119 people, almost all of them serving and former police.

An affidavit was presented to Justice Barr giving the reasons the 119 deserved to have their private conversations covertly recorded.

That affidavit has never been made public so what the judge was told is not known.

But one Operation Mascot affidavit has surfaced. It was granted on September 14, 2000, the day before the start of the Sydney Olympics. Justice Virginia Bell of the NSW Supreme Court – who is now a High Court judge – approved a listening device warrant that allowed M5 to bug 114 people. She approved the use of seven listening devices, some to be worn by M5, others to be placed in his house, car and briefcase.

Among those who were to be recorded were some who were corrupt. But dozens of others who M5 was legally allowed to record were honest police such as then Superintendent Nick Kaldas and Superintendent Bob Inkster. Kaldas is now a NSW Police Force Deputy Commissioner. Inkster is now, somewhat ironically, a senior member of the NSW Crime Commission which was a key player in trying to bug him more than a decade ago.

According to the warrant approved by Justice Bell, Kaldas and Inkster and the other 112 were suspected of a range of offences – money laundering, conspiracy, tampering with evidence.

Essentially, the accusation was that they were corrupt. The Herald makes no suggestion that either man was, or is, corrupt.

Justice Bell approved the bugging on the basis of a 57-page affidavit from the crime commission.

The Herald has seen a copy of the affidavit. It contains allegations of corruption against many police and is, in parts, quite detailed.

Justice Bell, who had been counsel assisting at the Wood royal commission into the NSW Police five years earlier, was told the affidavit was truthful and accurate.

But an investigation by the Herald has uncovered evidence that parts of the affidavit were either fabricated or wrong.

The documents and the evidence gathered by the Herald suggest that from 1997 to 2001 more than 20 NSW Supreme Court judges were lied to or seriously misled by some officers working within SCIA, which was set up in the 1990s by then commissioner Peter Ryan.

Which brings us to the affidavit of September 14, 2000, specifically paragraph 5.33, which comprises only 13 lines.

Much of the affidavit is taken up with details of conversations between M5 and some corrupt colleagues secretly recorded in police stations such as Manly and at pubs, clubs and farewell functions – often while M5 and his mates were engaged in marathon drinking sessions.

The paragraph reads: “On 10 December, 1999, [M5] unexpectedly met with former NSW Police inspector John Kevin Bourke in The Corso, at Manly. Bourke engaged [M5] in conversation regarding assistant commissioner Clive Small. Bourke used words to the effect, ‘I have the best brief on him’.”

The affidavit says Bourke went on to describe Small’s involvement in the corrupt “release of information” to another police officer which resulted in a drug trafficker escaping conviction.

The affidavit continues: “I suspect Bourke has information or evidence which he believes incriminates assistant commissioner Small.

”I suspect Bourke meant to indicate that he would use that information or evidence to protect himself, if necessary, from investigation or prosecution, or both.”

The Herald has tracked down and spoken with Bourke, who was for many years involved in detective training. He retired in 1989. After being read the allegation about his ”meeting” with the detective known as M5 on The Corso, as detailed in the sworn affidavit, Bourke said: “It is very simple for me to answer, that is all nonsense, poppycock, because it never ever occurred.”

In a subsequent email, Bourke said: “The name [M5] is not significant to me. I can confirm with absolute confidence I have never met any such named person on the Manly Corso at any time in my lifetime.”

He added: “I didn’t like Clive’s haircut and I thought he was a bit self-important. But I admired Clive Small for many reasons. I always found Clive a very trustworthy person in my dealings with him.”

He said the claim in the affidavit that he had the conversation was ”based on a fabrication”.

He said he was prepared to give evidence on oath that this was the case.

Bourke said he had no idea how his name could have been put in an affidavit or on a listening device warrant. He had never been contacted by anyone about the alleged meeting on The Corso or the ”allegations” against Small.

Small had a distinguished career in law enforcement. In the late 1970s, he worked on the Woodward royal commission into drug trafficking and then on a long inquiry into the collapse of the Nugan Hand Bank.

As an inspector, and despite considerable pressure from his superiors, he cleared former NSW Police superintendent Harry Blackburn who had been wrongfully charged with multiple rapes in an inept investigation by NSW Police. A subsequent royal commission into the Blackburn case proved him correct.

In the 1990s he was the commander of the taskforce that led to the conviction of backpacker murderer Ivan Milat. After the Wood royal commission into police corruption in the mid-1990s, he was appointed the head of crime agencies and, as such, was the boss of the major squads such as homicide. He was later chief investigator for the Independent Commission Against Corruption.

When the Herald first showed the affidavit to Small he said there was “something clearly wrong” with the document.

Late last week he told the Herald that to the best of his knowledge he had not seen Bourke since the early 1970s. He said he had never been interviewed or spoken to by anyone about the ”allegation” in the affidavit and had no idea which drug case was being referred to.

He said given Bourke’s categorical denial of the affidavit, “it would appear to me a criminal offence has been committed by one of more people or at a minimum, a serious misconduct”.

He said the allegations about misconduct within SCIA had ”been known to both the government and the opposition for about 10 years”.

“I would seek for the matter to be fully investigated immediately. I don’t want this buried for another two years while the ombudsman investigates.”

The Herald has also obtained NSW Police documents which cast doubt on another claim in the same affidavit presented to Justice Bell: that M5 and other officers ”verballed” or made up admissions by a career criminal, Craig Cant, one of three men charged in 1994 with a violent attempted armed robbery.

On page 7 of the affidavit, it says M5 and another police officer “fabricated an unsigned record of interview with Cant”.

The Herald has obtained a copy of M5’s own record of interview with Cant and the brief of evidence in the case. Cant makes no admission to the crime and, in fact, repeatedly denies knowing anything about it.

When M5 puts a number of allegations to Cant and asks if he has anything to say, Cant repeatedly answers “nothing”.

Asked what he wants to say about phone records which showed a call from a co-offender at 4am at the time and date of the offence, Cant replies: “Nothing. Look I don’t want to be rude but how much longer is this going to take?”

In a second interview, he repeatedly answers “no comment”.

The Herald showed a number of the documents to Small. He said it appeared the police, including M5, had evidence against Cant based on phone and motel records, his credit card and driver’s licence which were all admissible in court.

“In the interviews, Cant’s answers are neutral or denials. I don’t see what the ‘verbal’ could be.”

Charges against all three men eventually fell through because of the alleged police fabrications. One of Cant’s co-accused later went to work for SCIA. He told officers within the unit he and Cant and the other man had indeed committed the crime, which involved breaking into a home at 4am and putting pistols to the heads of a young couple.

How it unfolded

On December 16, 1998, an experienced but troubled NSW detective walked into the offices of the NSW Crime Commission in Kent Street and voluntarily admitted to numerous acts of corruption.

According to documents leaked to Fairfax Media, he was under intense pressure. Some colleagues had come under suspicion and the detective, who became known as M5, feared he was in the firing line.

Drinking heavily, “depressed and anxious”, the documents reveal he said he wanted to “unload”. He admitted to corruption going back to the late 1980s and named other serving and former detectives as bent.

But the confession didn’t have the cathartic effect M5 might have hoped for. In fact it made things worse.

M5’s psychiatrist, Michael Diamond, would later write: “It placed extra pressure on him because he had to keep ‘disappearing’ (from his normal police duties) in order to attend these interviews … he felt suicidal”.

According to Mr Diamond, M5 was in intense distress. A concerned relative had him admitted to a psychiatric unit at Manly, where he stayed for 10 days.

What happened next is remarkable. He was sent to work under cover by the ”white knights” in the NSW Police special crime and internal affairs unit (SCIA). They wanted scalps and M5 was ideally placed to produce them.

The documents reveal M5 was debriefed by SCIA in January 1999 – within days of leaving the psychiatric ward – and transferred to Manly detectives. An SCIA officer, Cath Burn, now a deputy commissioner, said M5 “volunteered” to go under cover and record his fellow detectives, some of whom were undoubtedly involved in corruption and later jailed.

But in advice to the human resources branch on September 16, 2003, a solicitor from the NSW Police legal services branch, Alan Bloomfield, recommended M5 be granted a ”hurt on duty” pension because he had been “forced” to co-operate.

Mr Bloomfield said: ”A memo from Supt [Cath] Burn states that he ‘voluntarily’ offered to assist, but in a practical sense, he did not have much choice.”

M5 kept working as a detective from early 1999 until mid-2001. He was also covertly recording his workmates.

The documents reveal that SCIA bugged M5’s house, car and briefcase, and had listening devices on M5.

Much of the recording was done in pubs, clubs and at functions – and during marathon drinking sessions.

When M5 couldn’t take it any longer, he sued for compensation in the form of a ”hurt on duty” pension.

In 2002 Mr Diamond, advising on M5’s claim for compensation, criticised SCIA’s decision to employ him under cover just after he had left a psychiatric institution.

M5 won his claim and it is understood he was also given an ex gratia payment. His payments are believed to total hundreds of thousands of dollars.

He told Mr Diamond he had been used by someone in SCIA to “settle old scores”. One of the “old scores” appears to have been then Superintendent Nick Kaldas. M5 was sent to see him five or six times. Mr Kaldas had had a serious disagreement with a senior SCIA officer, Superintendent John Dolan. Even police within SCIA were seriously concerned at the targeting of Mr Kaldas.

“I smelt a rat,” M5 told his psychiatrist. “I’ve done stuff you wouldn’t do to your worst enemy … I’ve been used.”

Operation Mascot

1350 boxes of documents (handed over by the NSW Police/Police Integrity Commission/NSW Crime Commission)

20 NSW Supreme Court judges (involved in approving the listening device warrants)

7 investigators (working for Operation Prospect)

$3.5m (extra money given to Ombudsman for inquiry)

114 serving and former police officers and civilians named in controversial listening device warrants approved by Justice Virginia Bell

1984 applications for telephone taps by NSW Police, PIC, Crime Commission in 2011-12
(source: Commonwealth Attorney-General’s report)

934 listening device warrants approved for use by NSW Police, PIC, Crime Commission in 2011-12 (source: NSW Ombudsman)

Aggrieved officers doubt ombudsman’s ability to handle inquiry