6th of December 2020
From the outset, it must be made clear that the CAA does not support the use of lawyer Gobbo by the Victoria Police in the way it was done; it was unlawful, and Gobbo and the executive Police responsible must be held to account before the Law.
Generally, we support the findings of the Royal Commission however we do diverge on a couple of issues.
Although the actions of many involved below the executive of the Victoria Police in our view were perhaps unlawful, the Commissioner has failed to give due weight to the structural pressures and influence on many of the subordinate offices involved in this controversy.
Throughout this saga, Police directly involved were managed by the highest levels of Victoria Police, the Chief Commissioner Overland who has a Bachelor of Laws, and his executive command with Assistant Commissioner Luke Cornelius, a Lawyer.
Whether they were certified to practise is a moot point, what is beyond debate is that they both should reasonably expect to have a high understanding of the law and the unlawfulness of the program they sponsored. The knowledge they possessed strengthens their authority not diminish it.
Added to that authority, was the then head of the Office of Police Integrity (OPI), the forerunner of the IBAC. This independent oversight authority was part of the command team running the Gobbo affair.
Reinforcing the belief that the actions of the subordinates were legal, the OPI senior representative was none other than Graham Ashton, the penultimate authority on Police behaviours legal and otherwise, the Police watchdog. From the communities and rank and file of police perspective, he was believed to be totally independent, but he was not.
Ashton subsequently became Chief Commissioner and by his appointment was responsible for the multi-million dollar expenses to defend his and others, un-tenable position in this affair. A whole other matter of conflict of interest, not only in his role as deputy head of OPI but authorising expenditure that was designed to have outcomes from which he could benefit, has not been properly canvased.
Police members would also be well aware that Victoria Police has a substantial internal Legal Department, so it was not unreasonable to assume that their actions were lawful and had legal oversight. That the command chose to ignore or not seek a legal input is hardly an issue that would exercise the mind of subordinates, their bosses in their view would have that covered.
In the normal scheme of things, the subordinates would not have access to the force legal services and would never question the legality of what they were directed to do.
When you are managed by such a formidable and unassailable authority that this management team possessed, it is very understandable that many of the processes were not questioned.
The CAA is of the opinion that this infers that no legal advice, independent or otherwise, was sought and that is incredulous, and does not pass the ‘pub test’, by any stretch.
To accept the proposition that no legal advice was sought, then we must accept that two police who have legal training in the police leadership team, failed to discharge their duty. If they were Officers of the Court, they should be struck off, if not they have embarked on ‘perverting the course of justice’ an egregious offence striking at the heart of the legal system.
That the in-house police legal team knew nothing and when they did, did not attempt to fulfil their duty as Officers of the Court was also reprehensible conduct.
This groups activity are only marginally less egregious than the police executive who are legally trained. The in house lawyers were, ‘inside the tent’ and it is beyond reasonable belief that they were unaware of such a significant project involving Gobbo or 3838, as it was widely rumoured, within VicPol in that era, there was a ‘Supergrass’.
As was tendered in evidence at the Royal Commission, it was assumed by some the ‘Supergrass’, was Lawyer Garde-Wilson. So from early on, the rumour mill identified a lawyer was involved. In a damming indictment of their so-called professionalism, the legal practitioners failed to identify an inappropriate relationship irrespective of who the lawyer ‘Supergrass’ was.
Then Chief Commissioner Nixon who also apparently failed to get legal advice. If she had done her job, this matter would not have escalated to where it did. Nixon would have us believe she had the wrong lawyer. But as Nixon was Chief Commissioner it beggar’s belief that she did not know, even more so when there was evidence Nixon attended task force meetings. And again we have the situation with Nixon that she knew a lawyer (all be it the wrong one) was a ‘Supergrass’ and she failed to address the issue when she should have known that using any lawyer as a ‘Supergrass’, was fraught with all sorts of dangers, but she took no action to satisfy herself of the legality of the situation.
If we are supposed to believe that Chief Commissioner Nixon was not privy to the identity of the Supergrass when attending the task force meetings, then we would believe in fairies at the bottom of the garden. This proposition is as preposterous, and it is silly.
The role of in house VicPol legal services lawyers in this artifice are at its best wilful omissions that must have involved overt acts to hide their knowledge. At worst their actions were as criminal as some of the police.
Then there is the huge gaggle of lawyers involved in defending the actions of Victoria Police who we are to believe did not know anything, is beyond the pale. They too failed in their duty as Law Officers and their duty to the Court.
In no way to be construed as defending the perpetrators of this artifice, the command of Victoria Police; members of the legal fraternity must share responsibility.
As with the police, it is imperative that the community once again should have confidence in the legal system and of an equal imperative is also to have confidence in the legal practitioners as a whole because the damage done to the whole profession by a few, the same as with the Police.
The legal fraternity must address the trust deficit and to rebuild that trust, action must be taken to ensure that the lawyer’s obligations as Officers of the Court can and will not be abused in the future.
Though it was outside the terms of reference of the Royal Commission, and a sceptic may suggest deliberately so, lawyers who knew or should have known what was going and on must be held to account, as are the police or the long shadow of this saga will not fade.
It is also not good enough that there is a suggestion that Gobbo will never be held to account for her crimes as extradition restrictions make it improbable. If she is not prepared to appear to defend her actions when held to account, then that is a decision she makes and in her case an informed one. Even if it requires new legislation, absconders must face their obligations even if it is ex-parte and they are sentenced in absentia. Convicted absconders can choose their own jail and live with an INTERPOL Red Notice; in perpetuity if they choose.
As for the members of the bar who so dramatically failed in their obligations, they must be, struck off.
Charging some serving and former police executives with criminal offences is essential to help rebuild trust; however, not something we would normally concede, we feel that in this circumstance the concept of ‘Nuremberg defence’, should apply to many of the police subordinate operatives.
If the Lawyer X job is done correctly, then the likelihood of a repeat is diminished to minuscule, but to deal with the police and not the lawyers is only halfway there.
The real test of the resolve to deal with this matter in its entirety is reform.
There have been many innovative reforms proffered for Victoria Police, and the Chief Commissioner has adopted them, and that is valuable for Victoria Police.
The glaring anomaly is the lack of reform being imposed or initiated by the legal fraternity. Partly driven by the lawyers collective hubris and further by their denial, their go-to position.
The legal fraternity suffers wide self-inflicted community derision for failing to undertake desperately needed reform so that lawyers have a proper mechanism to deal with lawyer whistle-blowers and establishing an independent legal authority to adjudicate on matters that push lawyers towards a conflict of interest or breaches of their oath or obligations as Officers of the Court.
The challenge is for lawyers as much as it is for police, the police are doing something, will the lawyers?
Perhaps we will have to rely on the journalists again to expose the truth.