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In a just-filed submission to the Lawyer X Royal Commission, retired Federal Court judge and former Queensland Special Prosecutor Douglas Drummond argues that Victoria Police cannot be trusted to investigate current and former brass should the commission recommend that criminal charges be pursued. That submission is reproduced in full below
Whether police criminally inculpated in the Gobbo scandal are to be properly considered for prosecution cannot be left to the Victorian Director of Public Prosecutions. The Royal Commissioner should instead consider recommending in her final report the appointment of a properly resourced special prosecutor
The High Court judgment ignited a crisis of public confidence in Victoria Police that was sufficient to cause Premier Andrews to set up this properly empowered Royal Commission into the force’s use of the defence lawyer Gobbo as a police informant.
See also The Unexplored Shame of Victoria Police
Public confidence is unlikely to be restored if it is left to Victoria Police to investigate whether any of its members or former members, including Chief Commissioners, have committed criminal offences. That is what will very likely happen if the Commission leaves it to the Victorian Director of Public Prosecutions to decide whether there are to be any criminal prosecutions.
As the Director of Public Prosecutions said in her submissions to the Commission of 7 August last,a brief of admissible evidence must be referred to her Office before it can decide whether to prosecute anyone. The evidence gathered by the Royal Commission is inadmissible in criminal proceedings. So a lot of fresh investigation will be required in order to gather admissible evidence and to assess the true strength of any case against a suspect. Conducting such investigations is not within the functions of the Director or her Office. As the Director’s website says:
We do not investigate crimes. Other agencies investigate crimes and refer the matters to us for prosecution in the Supreme and County Courts …. Most of our prosecutions are referred to us by Victoria Police.
The conduct of Victoria Police involved in using Gobbo as an informant was harshly criticised by the High Court in its unanimous judgment of November 2018. Moreover, Victoria Police fought hard for years to keep this scandal from public knowledge. The High Court judgment [2018] HCA 58 in paras [2] and [4] to [6] lists the attempts by Victoria Police to prevent disclosure to certain convicted persons of the IBAC comments in the Kellam report about the impact on their convictions of Victoria Police’s use of Lawyer “X”. The Herald Sun reported on 22 July 2019:
Victoria Police was so desperate to keep the Nicola Gobbo informer scandal under wraps that force commanders [including now Chief Commissioner Shane Patton] warned the Director of Public Prosecutions not to even use the term “Lawyer X” when the then IBAC Director John Champion in 2016 tried to tell seven criminals that their convictions might have been “unsafe” due to police using Gobbo as an informer.
If Victoria Police control the investigations and preparation of briefs for the DPP, they will effectively determine who if any police will be prosecuted. How can the public have confidence now that Victoria Police will be diligent in investigating and preparing prosecution briefs against their own members?
It has been suggested that instead of Victoria Police, all the work necessary to assemble a brief for the DPP could be done instead by Victoria’s anti-corruption watchdog, IBAC. That is unlikely to happen. According to the statement by its Commissioner Redlich, reported in The Australian on 15 October, IBAC has been largely neutered as a corruption watchdog in Victoria by the refusal of the Andrews government to adequately fund it:
Commissioner Robert Redlich QC flagged that without further funding, the Independent Broad-Based Anti-Corruption Commission would not be able to fulfil its legislated role in ensuring the integrity of public office.
Commissioner Redlich said despite his repeated requests for additional funding, IBAC’s budget had remained static since it was founded in 2012:
“This means that today IBAC cannot investigate a significant number of complaints of serious misconduct which may warrant our investigation.”
Further, IBAC in 2015 investigated what the High Court later described as the “reprehensible conduct” of Victoria Police involvement in the Lawyer X scandal. ABC News on 10 Feb 2015 reported that IBAC’s investigator, retired Victorian Court of Appeal judge Murray Kellam found that police negligence “had the potential to have adversely affected the administration of justice in Victoria”. But he did not find that any criminal behaviour by police had occurred.
The High Court judgment and a glance at the submissions to the Commission by counsel and interested parties shows there are real questions whether numerous Victoria Police committed criminal offences in relation to the use of by defence lawyer Gobbo as a police informant.
The agency responsible for the investigations of police conduct and preparation of briefs for the prosecutor should, in the interests of public confidence in the process, be at arms length from IBAC which has already decided that police did not engage in any criminal conduct.
The Commission should therefore consider recommending in its final report that, in the interests of restoring public confidence in this discredited police force, the Victorian Government appoint a special prosecutor with authority to decide who is to be prosecuted. The special prosecutor should also be resourced with staff and a budget that will enable the special prosecutor to complete all investigations necessary to prepare briefs of evidence sufficient both to satisfy the special prosecutor that prosecution of particular police is warranted and complete enough for presentation in a criminal court.
Such a prosecutor must be independent of political direction, in contrast to the DPP who by the DPP Act 1994 “is responsible to the Attorney-General for the due performance of his or her functions and exercise of his or her powers under this or any other Act”.
The Andrews Government has benefited politically from various recent actions by Victoria Police. The government has relied on Victoria Police, led by its senior officers, to rigorously enforce the harsh lock-down decrees the government has issued during the corona virus pandemic. Premier Andrews has reaped astonishingly wide support from many Victorians as a result.
Victoria Police decided not to prosecute any Andrews government MPs involved in the Red Shirts scandal. But, according to ABC News on 14 February 2019, then Deputy Commissioner Shane Patton did not leave it there and went so far as to say that Victoria Police had actually “exonerated” them. This, despite Victorian Labor feeling the need to reimburse the public purse with the $388,000 rorted.
There should not be room for any perception that decisions whether any serving or former Victoria police should be prosecuted may be subject to political influence keen to ensure continuing police support.
Accountability by the special prosecutor can be achieved by the requirement for reporting not to attorney-general or to the government, but to the parliament.
No lawyer, I, so my question is undoubtedly naive.
Despite the High Court being scandalised by Gobbo informing on her clients with active VicPol management, what exactly is unlawful in that behaviour ? In short, what laws may have been broken ? (That excludes any immoral, unethical or despicable behaviour, only actual probable criminality).
It seems from this article that it’s up to VicGov to appoint and fund an independent investigator, one whom both VicPol and Andrews himself cannot nobble. Right …
Indeed why should Gobbo not be compelled to report the criminal actions her clients tell her – it’s good enough to force RC priests to do so after all! Why are lawyers and doctors exempt?
@PT
Doctors are not exempt, well atleast not in Queensland, and lawyers are not exempt, they are prohibited. The priviledge is not the lawyers, but the client’s. A long time ago my father provided advice to a couple of clients, and one subsequently murdered the other. My father could have given inculpating evidence against the murderer, but was prevented by the priviledge rule. Without going into the history of legal priviledge, common sense shows why in our system it is necessary in most situations. Our system of law is adversarial and has worked well to the point where it, with liberalism, is probably the cause of anglo exceptionalism. In an adversarial system it is hard to represent a client unless there is complete trust. You should be aware that there is a large body of ethical rules and obligations to the court which constrain advocates once disclosure of certain information is made to them. Those rules have to my understanding been almost universally adhered to by members of the profession until Gobbo came along. She didnt just drive a truck through those obligations she took a hammer to the whole edifice of probity and ethical rectitude established over four hundred years and just wrecked them.
@Ianl
I am with you in this regard. I can not think of any specific law that has been broken, but perhaps if there are any practicing lawyers particularly from Victoria, they might be able to chime in.
I see the Victorian Police have also been asked to look into the $2 million transferred out of the Vatican, allegedly to secure a conviction against Pell. Does anyone really believe that they will do that any more diligently than they investigated Shorten or Gillard or the Red Shirts?
The High Court:
“Gobbo’s actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of Gobbo’s obligations as counsel to her clients and of Gobbo’s duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging Gobbo to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system.” That sounds like the police have perverted the course of justice, a crime that attracts a maximum punishment of 25 years imprisonment – sec 320 Crimes Act
It does sound like perverting the course of justice is the most likely charge in this case. For a court to find a person guilty of perverting the course of justice, the prosecution must prove beyond a reasonable doubt that the accused did an act intentionally and that the act was intended to pervert the course of justice and that the course of justice was perverted. To find a person guilty of attempting to pervert the course of justice, only the first two of these elements must be proven. It is a defence to a charge of perverting the course of justice if the accused did not do the act intentionally or if they did not intend the act to pervert the course of justice.
If there was an agreement between two or more of the parties involved, charges of conspiracy might also be possible. For a court to find a person guilty of conspiracy the prosecution must prove beyond reasonable doubt that:
1. the defendant entered into an agreement with one or more other persons; and
2. the defendant and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
3. the defendant or at least one party to the agreement must have committed an overt act pursuant to the agreement.
The prosecution must prove each of these matters beyond reasonable doubt. They are cumulative requirements for the offence of conspiracy.
However it is difficult to be optimistic that such charges would ever be laid against police in such a corrupt, dysfunctional and politicised legal system as that to be found in Victoria.
I think that’s the point Occidental.
In any case the Vic Police are clearly a morally, ethically and politically compromised force: from Nixon’s outright lies regarding crime statistics of Sudanese and Somalis (and the political connotations she had prior to her appointment) through to their partisanship in backing Andrews’ ideological goals, the notorious Pell case whilst failing to pursue allegations at least as credible against Bill Shorten, and many other cases of picking who to pursue and who not to. And then this. It’s going to take a lot, and a lot of time, to restore faith in the Vic Police: and that assumes a serious attempt is made to do so!
Just some admin information re submissions to RCMPI – the RCMPI website lists D Drummond’s submission on the public submissions page of their website. Last week, there was text on the page which stated that a submission had been received from DD at 10:15pm on ?19/?20 Oct and responses to DD’s submission were due by 22 Oct. K Judd’s media statement dated 20 Oct was added to the website. IBAC has a submission dated 27 Oct. I rang RCMPI a few days ago to ask if they were still receiving submissions, as I had seen the 22 Oct deadline on the website. They said submissions can still be lodged, it is up to the RCMPI as to whether they will be accepted. I note an Age story yesterday that Vic Police legal costs were $60M in the last financial year.