SPECIAL REPORT TO PARLIAMENT

  (Special Investigator Act 2021, s 99)

To the Clerk of the Legislative Council        

And to the Clerk of the Legislative Assembly

1. Section 99 of the Special Investigator Act 2021 (SI Act) provides in substance that the Office of the Special Investigator (OSI) may at any time give to the clerk of each House of Parliament a report on any matter relating to the performance of OSI’s duties and functions.
2. Pursuant to section 99 of the SI Act, I have the duty to report on the matters hereinafter set out.
3. In brief summary, OSI was established by section 12 of the SI Act consequent on recommendations of the Royal Commission into the Management of Police Informants (Royal Commission) to establish a Special Investigator with the necessary powers and resources to investigate whether there is sufficient evidence to prove the commission of offences by Nicola Maree Gobbo (Gobbo) or by current or former members of Victoria Police (VicPol) in connection with VicPol’s use of Gobbo as a human source (relevant offences).
4. Section 6 of the SI Act thus provides in substance that the principal functions of OSI are:
   • Investigating and determining whether there is within the records of the Royal Commission (Royal Commission records) or otherwise sufficient evidence to establish the commission of relevant offences; and
   • On that basis, providing to the Director of Public Prosecutions briefs of evidence for the Director to determine whether charges should be filed.
5. Unlike the Independent Broad-based Anti-corruption Commission (IBAC), which has power under sections 189 and 190 of the Independent Broad-based Anti-corruption Commission Act 2011 to bring criminal proceedings for any matter arising out of an IBAC investigation, OSI’s ability to bring criminal proceedings for a relevant offence is subject to constraint. Section 40 of the SI Act prohibits OSI from filing a charge of relevant offence unless the Director of Public Prosecutions first agrees to the charge being filed.
6. In light of the Director’s past refusal of permission for OSI to file charges of relevant offences, and the Director’s recent identification of considerations likely to result in her refusing to permit OSI to file any other charges of relevant offences, I consider that there is no longer any point in OSI persisting with investigating and determining whether there is sufficient evidence to establish the commission of relevant offences.

     The Perjury brief of evidence

7. During October and early November 2021, three OSI legal officers who had been engaged in anticipation of the formation of OSI and I prepared a brief of evidence alleging a charge of perjury against one suspected offender. The brief was submitted to the Director in draft form on 19 November 2021.

8. On 29 November 2021, the Director wrote to OSI that she had determined that a charge sheet should not be filed “at that stage” and that further evidence would be required before she could be satisfied to the necessary extent of the prospects of conviction.

9. Later that day, I emailed to the Director urging her to accept that the documents provided on the brief left little doubt that the alleged offending had been committed and that all that would remain to be done once OSI was granted access to unredacted Royal Commission records (as opposed to redacted Royal Commission records to which OSI was restricted at that time) was to assemble formal proofs of evidence.

10. On 1 December 2021, OSI resubmitted the brief to the Director and on the same day I conferred with the Director regarding difficulties OSI was having in obtaining access to unredacted Royal Commission records and how OSI proposed to surmount the problems. The Director stated in substance that, even if OSI could surmount those problems, there were also public interest considerations that would weigh against a decision to approve the charge.  They were, she said, that the alleged offence was relatively old (it was alleged to have been committed in 2017); although a relevant offence, it was not committed in connexion with a criminal proceeding (it was alleged to have been committed in the course of civil proceedings relating to the possible commission of relevant offences); and, because of the personal circumstances of the alleged offender, it was not unlikely that, if the alleged offender were convicted, a non-custodial sentence would be imposed.  The Director questioned whether, having regard to those considerations, it was worth spending money prosecuting the case and possibly thereby putting the alleged offender (and perhaps other persons associated with the alleged offender) at personal risk.   

11. Later on 1 December 2021, I received a letter from the Director stating that she had not yet made a determination whether to grant permission to charge and in which she listed additional documentary and other evidence that she said, if provided, might alleviate some of her concerns regarding the prospects of conviction. But the Director added that: “These matters need to be balanced against the seriousness of the proposed charge in circumstance where the likely sentencing outcome in the event of a conviction would be a non-custodial disposition”.   

12. Days later, the suspected offender departed the jurisdiction making it pointless to proceed with the brief.

The Spey brief of evidence

13. Faced with those developments, during January 2022 OSI identified eight other matters involving possible relevant offences that OSI considered were worthy of investigation. Each of those eight matters concerned multiple suspected offenders in relation to a range of facts traversing a period of more than nine years.  

14. After several further months of investigation, OSI concluded that one of the eight matters (designated as Operation Spey) stood out from the others as the strongest case of relevant offending, which, as such, would provide the best chances of securing convictions. From that point on, the bulk of OSI’s investigative resources (which by then included a team of investigators recruited by OSI) were focussed on Spey with the aim of completing the investigation and preparation of the Spey brief of evidence in the shortest possible time.

15. To begin with and for the following nine months, OSI’s progress with Spey was hampered by difficulties in obtaining access to unredacted Royal Commission records and in overcoming claims of public interest immunity and the application of statutory secrecy provisions. The details of those problems were reported in OSI’s first and second Implementation Monitor Reports pursuant to section 97 of the SI Act.  

16. After overcoming some of those difficulties, on 8 December 2022 Operation Spey culminated in the delivery of the Spey brief of evidence to the Director of Public Prosecutions, and by memorandum accompanying the brief OSI sought a determination by the Director pursuant to section 41 of the SI Act that OSI be permitted to file charges of attempting to pervert the course of justice against five identified persons.

17. The Spey brief of evidence consisted of more than five thousand pages of admissible documentary evidence, many hours of audio recordings, and multiple witness statements. OSI considered that the brief established a powerful case of offending and therefore expected that the Director would approve the charges.  Contrary to OSI’s expectation, however, on 16 March 2023 the Director notified OSI that she had determined that a charge sheet should not be filed against any of the alleged Spey offenders.  The Director stated that she did not consider that there was a reasonable prospect of conviction against any of those five persons.  A redacted copy of the Director’s letter of 16 March 2023 is attached.

18. On 20 March 2023, I wrote to the Director submitting that her decision to reject the Spey brief was wrong, and setting out in brief substance why I considered that her reasons for rejecting the brief were untenable.  A redacted copy of my letter to the Director of 20 March 2023 is attached.    

19. On the same day, I wrote to the Attorney-General enclosing copies of the Director’s letter of 16 March 2023 and my letter to the Director of 20 March 2023. A redacted copy of my letter of 20 March 2023 to the Attorney-General is attached.

20. The Director did not reply to my letter of 20 March 2023 and thus Operation Spey ended without prosecution.

Operations Leith, Wick and Forth

21. Meanwhile, having delivered the Spey brief of evidence to the Director on 8 December 2022, OSI had refocussed attention on the remainder of the eight matters identified at the outset of operations and had selected three (Operation Leith, Operation Wick and Operation Forth) as the next strongest cases after Spey. The plan was to complete and deliver a brief of evidence in at least one of Leith, Wick and Forth by the end of calendar 2023 with the other two briefs to follow during calendar 2024.

Operation Charlie^[1]

22. That approach later changed as the result of work carried out in Leith, Wick and Forth during December 2022 and January 2023. With the insight that work provided, OSI concluded that, although none of Leith, Wick and Forth was individually as strong as Spey, a combination of elements of the three (in the form of Operation Charlie) would sustain a charge against at least one senior police officer of misconduct in public office committed by knowingly failing to report, investigate and prosecute offences of attempt to pervert the course of justice.

23. The efficacy of the Charlie approach was later confirmed to the extent that some of the considerations which the Director subsequently identified in her letter of 16 March 2023 as having informed her rejection of Spey did not apply to Charlie or at least did not appear to apply in the same way and to the same extent.

24. In particular, in the Director’s letter of 16 March 2023 the Director stated in substance that she regarded it as inimical to the success of the Spey brief of evidence that the immediate “victim” of the alleged offences was not prepared to make a voluntary witness statement for inclusion in the brief. The Director wrote that she was not prepared to proceed on the basis of evidence which (consistently with evidence the alleged victim had given before the Royal Commission) OSI considered the alleged victim would almost certainly give if compelled to give evidence pursuant to section 103 of the Criminal Procedure Act 2009 (or under subpoena issued under section 336 of the Criminal Procedure Act).  The Director also recorded that another reason not to approve prosecution was that four of the persons proposed to be charged were at relevant times relatively junior police officers who the Director considered could conceivably raise a defence that they did not know how to prevent what occurred. 

25. By contrast in Charlie, although there were multiple alleged immediate victims of the alleged offence, who, like the alleged immediate victim in Spey, might not agree to make witness statements for inclusion in the brief, the most important consequence of the alleged offending in Charlie was the damage thereby done to the fundamental integrity of the criminal justice system, and the suspect (or conceivably suspects) in Charlie was at relevant times a senior police officer with apparent ability to prevent what had occurred.

26. Consequently, despite the Director’s rejection of Spey, after 16 March 2023 OSI continued to focus all of its investigative resources on Charlie with the object of concluding the investigation and delivering the Charlie brief of evidence to the Director on or before 30 December 2023 or at latest 30 June 2024.

The Attorney-General’s letter of 22 May 2023

27. On 22 May 2023, I received a letter from the Attorney-General referring “to your recent update” (which I interpreted as a reference back to my letter of 20 March 2023) requesting information as to the status of “remaining OSI investigations”; the probability of any of them resulting in the provision of a brief of evidence to the Director; and my opinion as to the chances of the Director granting permission to file charges. A redacted copy of the Attorney-General’s letter of 22 May 2023 is attached.

OSI’s letter to the Attorney-General of 23 May 2023  

28. On 23 May 2023 I wrote to the Attorney-General replying that the short answer to her enquiry was that, subject to the maintenance of OSI’s present staffing levels and operational budget, I was confident that the Charlie investigation would result in the provision of a major, comprehensive brief of evidence to the Director by early 2024 and that there was good reason to think that the Director may be satisfied that the charges proposed should be filed. I then set out my reasons in support of those conclusions.  I added, however that, if the Director rejected the Charlie brief, it would then be appropriate to reconsider whether any further investigations should be pursued.  A redacted copy of my letter of 23 May 2023 to the Attorney-General is attached.

The Director’s letter of 26 May 2023 

29. I did not receive an immediate response from the Attorney-General. Three days later, however, on 26 May 2023 I received a letter from the Director referring to a conference that OSI Chief Counsel and I had had with the Director and the Chief Crown Prosecutor on 8 May 2023.  The purpose of that conference had been to raise with the Director whether, if former VicPol officers who had authored VicPol records refused to provide witness statements verifying those records, the Director might be disposed to consider the strength of the Charlie brief on the basis of the sworn evidence of verification of those records which the former officers had given before the Royal Commission; there being no reason to suppose that they would not repeat that evidence if compelled to give evidence by order pursuant to section 103 of the Criminal Procedure Act.   At the conference, the Director stated in substance that she might be prepared to consider OSI’s proposal after she had seen the brief but that she could not and would not give any guarantees.  

30. By contrast in her letter of 26 May 2023, the Director stated that after further reflection she was not prepared to consider the possibility because to do so would run counter to her policy of assessing the strength of a brief of evidence “on the basis of the evidence currently available to the prosecution, not on the basis of what further evidence might^[2] be obtained”; and because she considered that to invoke section 103 of the Criminal Procedure Act in the manner proposed “may be an abuse of process”.

31. The Director also included in her letter of 26 May 2023 an analysis of what she considered to be the law relating to the offence of misconduct in public office, which was followed by an observation that the proposed Charlie accused might well successfully argue in opposition to the proposed charge of misconduct in public office that “Victoria Police’s institutional position over the years regarding public interest immunity validated their own subjective perception that their actions did not amount to misconduct”, and thus that ”it will be difficult to prove ‘wilful misconduct’ beyond reasonable doubt”. In turn, that was followed by a reiteration of what the Director had said in her letter of 16 March 2023 about there being a number of “deficiencies” in the Spey brief of evidence.  

32. Finally, the Director added that she took the opportunity also to make “observations about the passage of time and the impact it has on the decisions ahead for our respective offices in relation to any further briefs of evidence”, leading the Director to conclude that: “As it stands, the passage of time will undoubtedly have a significant bearing on the prospects of conviction …[which] is also a matter I would have to take into account in determining whether it is the public interest to proceed with a prosecution … particularly if there is a reasonable prospect that, at the conclusion of the protracted criminal proceeding, some years into the future, the ultimate disposition on a finding of guilt is not custodial”.

            A redacted copy of the Director’s letter of 26 May 2023 is attached.

33. My initial reaction to the letter was that it was calculated to inform me of as many reasons as the Director could conceive why she would be disposed to reject the Charlie brief of evidence once submitted and thereby to convey to me that the Director would reject the Charlie brief, and any other brief that might be submitted, for any or all of those reasons.  After reflecting on the matter over the weekend of 27 and 28 May 2023, I remained of that view.  It appeared to me that the effect of the Director’s letter of 26 May 2023 was to reduce the chances of approval of any charge of relevant offence effectively to nil.

OSI’s letter to the Director of 29 May 2023   

34. Accordingly, on 29 May 2023 I wrote to the Director informing her in substance that, although I remained of opinion that her reasons for rejecting the Spey brief of evidence were wrong, and that I considered that her analysis of the law relating to misconduct in public office was misdirected, it appeared to me from her letter of 26 May 2023 that the chances of her approving any charges that OSI might submit to her were now effectively nil, which made it a waste of time and resources for OSI to persist. A redacted copy of my letter to the Director of 29 May 2023 is attached.  I did not receive a response.

OSI’s letter to the Attorney-General of 29 May 2023

35. On the same day, I wrote to the Attorney-General enclosing copies of the Director’s letter to me of 26 May 2023 and my letter to the Director of 29 May 2023, and advising the AttorneyGeneral that the Director’s letter of 26 May 2023 had altered my view as to the likelihood of the Charlie brief being approved. I explained that, in face of the contents of the Director’s letter of 26 May 2023, I had concluded that the chances of Director approving Charlie or any other charges that OSI might submit were now effectively nil, which made it a waste of time and money for OSI to persist. I requested the opportunity to speak to the Attorney-General urgently about the course to be adopted.  A redacted copy of my letter to the Attorney-General of 29 May 2023 is attached.  

Conferral with the Attorney-General

36. On 1 June 2023, the OSI Chief Executive Officer and I conferred with the Attorney-General. I reiterated the contents of my letter of 29 May 2023 and repeated that, in light of the Director’s letter of 26 May 2023, I considered that the chances of the Director approving any brief of evidence that OSI might submit were effectively nil. I advised the Attorney-General that, in those circumstances, any further investigation of relevant offences by OSI appeared to me to be a waste of time and resources and that I believed that the appropriate course was to recommend to Parliament that OSI be wound up.  I suggested that OSI cease further investigation and the assessment of evidence, and that the Government propose to Parliament the legislative amendment necessary for OSI to be wound up.  I advised that if the Government decided to adopt that course, I would remain as Special Investigator for the time it would take to give effect to that decision; alternatively, if the Government decided that OSI should continue, I would resign as Special Investigator to make way for someone whose views as to the weight of evidence required to warrant prosecution for relevant offences more closely accorded to the Director’s position.   I stressed the urgency of the need for the Government to make a decision one way or the other, not least because OSI had no allocated budgetary funding beyond 30 June 2023.  At the conclusion of the meeting, I was assured that government would move with as much speed as was practicable.

Further communication with the Attorney-General

37. Consistently with that assurance, since 1 June 2023 the Attorney-General has kept me apprised of developments and of the processes involved and, consequently, time likely to be taken in the Government making a considered decision. I have had the benefit of conferring with the Attorney-General’s staff and, through OSI officers, with pertinent sections of the Department of Justice and Community Safety. I am also looking forward to conferring with the AttorneyGeneral again on 21 June 2023.  I believe that the Government may be in position to make a decision in principle one way or the other by early next week, although of course the implementation of the Government’s decision and any necessary legislative amendments are bound to take considerably longer. 

Inutility of further investigation

38. As is recorded above, Operation Spey represented what OSI considered to be the strongest and clearest case of relevant offending which provided the best chances of securing convictions. More specifically, Spey was unique among the eight cases of relevant offences identified for investigation in that a significant part of the evidence consisted of many hours of audio recordings of conversations before and after the alleged offending was committed.  Those recordings were admissible real-time direct evidence of the acts and state of mind of some of the alleged offenders and powerful inferential evidence of the acts and states of mind of others.  Taken with the more than five thousand pages of VicPol records of communications that were included on the brief, they attested powerfully to the deliberateness, planning and implementation of the alleged offences and the effect of them on the alleged victim. That is why Spey was the first major brief of evidence that OSI submitted to the Director.  

39. By comparison, Leith Wick and Forth (and thus ultimately Charlie) were largely comprised of documentary evidence (albeit to be confirmed by oral testimony) but Charlie had the advantage over Spey of being unaffected by some of the factors that the Director had determined weighed against Spey. That is why Charlie was pursued as the next best matter after Spey and why, until receipt of the Director’s letter of 26 May 2023, I considered that Charlie stood a realistic chance of receiving the Director’s approval.

40. That is no longer the case. In light of:
    • the Director’s response to the Perjury brief;
    • the Director’s rejection of Spey;
    • the reasons expressed in the Director’s letter of 16 March 2023 for rejecting Spey;
    • the reiteration in the Director’s letter of 26 May 2023 of what the Director considered to be “defects” in Spey;
    • the Director’s analysis in her letter of 26 May 2023 of what she considered to be the law relating to misconduct in public office in relation to Charlie;
    • the identification in the Director’s letter of 26 May 2023 of defences which she conjectured the Charlie accused might call in aid; and
    • the views expressed in the Director’s letter of 26 May 2023 regarding public interest considerations that would dispose her not to approve a charge of relevant offence against any present or former VicPol officer,

I no longer think it is realistic to suppose that the Director could be persuaded to approve any charge of relevant offence. 

41. The foregoing is not, and is not intended to be, an adverse finding about the Director or anyone else within the meaning of section 99(2) of the SI Act, nor the expression of an opinion or comment adverse to the Director or anyone else within the meaning of 99(3) of the SI Act. It is a statement of the facts that have occurred.  I remain of the views expressed in my letters to the Director of 20 March 2023 and 29 May 2023.  I consider that the Spey brief established a powerful case of relevant offending and offered substantial prospects of securing convictions.  Prior to receipt of the Director’s letter of 26 May 2023, I was also of the view that, despite the Director’s rejection of Spey, there was a realistic chance that the Director would approve the Charlie brief of evidence when submitted, and that, if approved, Charlie would afford a substantial prospect of securing a conviction.  I remain of the view that it would have.  But as it appears to me from the Director’s letters of 20 March 2023 and 26 May 2023, the Director is of a contrary view, and I accept as I am bound to do that the Director’s decisions are determinative.  As was noted at the outset, the effect of section 40 of the SI Act is that OSI must obtain the Director’s permission to file any charge of relevant offence regardless of OSI’s assessment of the strength of the evidence.  

42. Since it now appears to me that the Director will not grant OSI permission to file any charge of relevant offence, I consider it to be pointless for OSI to continue. In my view, the appropriate course is for OSI to be wound up. 

Conclusion

43. It is of course for the Government and Parliament to determine whether to wind up OSI, and I do not presume to anticipate their decisions. Nevertheless, it has become clear that my assessment of the strength of the evidence necessary to establish the commission of relevant offences and the Director’s approach to the matter stand considerably apart and are unlikely to coalesce.  If, therefore, the Government or Parliament decides that OSI should continue to investigate and analyse evidence of relevant offences, it will cease to be appropriate for me to remain as Special Investigator.  In that event, I shall resign so that someone whose views more closely accord to the Director’s position may be appointed in my place. 

44. It has been an honour to serve thus far as Special Investigator and a privilege to work with the lawyers, investigators, analysts and other staff of OSI who have laboured with me over the last 18 months in establishing OSI and endeavouring to discharge its statutory responsibilities.  I regret only that I have been unable to achieve the results that presumably were expected at the time of my appointment. 

Geoffrey Nettle

Special Investigator

20 June 2023                                                                                                                                                         

[1] A pseudonym.

[2] The Director’s emphasis.