2nd September 2020

As the Lawyer X Royal Commission gets to the pointy end of its function, there will be many shocks, and we anticipate disbelief, that so many Police are accused of wrongdoing when they were just doing their job; or were they?

That the impact on the Legal fraternity has been comparatively minimal is also sure to upset many Police; however, the good Judge is just doing her job. This was never a Royal Commission into the Legal fraternity; albeit, many may argue that it should have been, it is a Royal Commission into the management of Police of Informers.

The Government, not the Judge, set up the terms of reference (what the Royal Commissioner is to do).

As far as we are aware, the Police Association never challenged or used their considerable political power to influence or attempt to widen of the terms of reference to include the Lawyers and or perhaps protect Police that was doing their job rather than facilitating the artifice.

The view of many Police is that the Police involved were just catching crooks and that it is disgraceful that this whole scandal has been manipulated into some sort of crime by Police, shifting focus from the crooks to Police.

Proponents of that argument do not understand our adversarial justice system that serves our democracy well.
This interpretation is both misleading and wrong. This is ‘Nobel cause corruption’ (the ends justifies the means) as unlawful as the normal interpretation of corruption. It diminishes the role of Police in our society, as has the behaviours of the Police executive that promoted and or failed to manage the Lawyer X calamity and whose leadership was lacking throughout.

With the eleventh-hour move by the Royal Commissioner, on the cusp of the release of the submissions from the Counsel Assisting (CA), the Commissioner declined to make public the names of those who the CA has decided to recommend adverse finding against, and the Offences they are alleged to have committed. The Commissioner indicated that although she had the power, the same restrictions will apply to her final report.

This move is significant as it will impact dramatically on any pleas by any person convicted of offences subsequent to this Royal Commission.

Reading some submissions by the key police executives of this artifice, they are portrayed as the pillars of Policing, incredible contributors of the highest integrity, it is nauseating, but clearly the groundwork for a sentence plea. (that says a lot)

The Royal Commissioner has just blown away a defence strategy that would enable lawyers to make great stay from the exposure of their client in the arena of public opinion.’ The severe damage done to their clients by public exposure must be mitigated in any penalty’.

The assertions in the media by former Chef Commissioner Ashton that the Lawyer X scandal would,’ pass the pub test’, and, sought to justify potentially corrupt activity by Victoria Police on the basis that, ‘the ends justify the means’, would have to be the outstanding legal, own goal, of this inquiry so far.

The good Judge has increased the likelihood of jail time for any Police or others convicted of an offence investigated by this Commission. She has ratcheted up the anti by a significant margin.

As this Commission plays out, it is worth remembering that Policing is an honourable profession and comes with some unique obligations coupled to the powers bestowed on every Police member, the Office of Constable.
Thankfully the Office does not come with, ‘the end justifies the means’.

It is worth reflecting on an extract of the Oath for Police Officers,

I will prevent to the best of my power all offences, and that while I continue to be a police officer, I will to the best of my skill and knowledge discharge all the duties legally imposed on me faithfully and according to Law.

The Law that empowers Police must be regarded as sacrosanct by Police because to break those Laws or interfere in the due process of the Legal system is to breach the very oath that all Police are bound by.

The unlawful pursuit of criminals, ‘Noble corruption’, no matter how heinous the crime, only weakens the effectiveness of law enforcement and fades the policing function to be as criminal as those criminals pursued.

What is extremely disappointing is the failure of the Police executives that oversaw this fiasco to come forward to take responsibility and protect their subordinates or even apologise for their errors, but that will go to their character or lack thereof, for history to judge them. Contrition by the senior executives responsible seems in short supply.

Generally, the evidence from senior Police to the Royal Commission has the appearance that they were unaware (incompetent), or had no recollection (also incompetent).

Judge the unaware/no recollection issues they all seemed to suffer as you will, we are sure the Royal Commissioner has.

The question is where to from now?

We have some empathy for those Police that were doing their job as directed by the police management. In our view, they are not at fault and only Police would understand the influence of superiors in the Police hierarchal structure that the commission would be unfamiliar with.

Provided that they were truthful to the Royal Commission, and did not wantonly break the Law in the furtherance of some misguided view that,’ the ends justify the means’, knowing the means was unlawful; or offer blind subservience to superiors that they knowingly broke the Law to support.

Most of the CAA Police Board members have served through the aftermath of a Royal commission some more than once, but the organisation has on each occasion come through this type of scrutiny the better for it.

The future of the Force, post Lawyer X, will have some tribulations, but overall they will have minimal impact on the vast majority of Police and former Police who share any pain inflicted on Policing.

There will probably be some positives to come.

Significantly a strengthening of the functional role of the Office of Constable where the constables will have greater sway in determining the exercising of their powers. This will be accompanied by more accountability, however on balance that is a positive.

We anticipate there will be moves to strengthen the ability of a Police member to withdraw from undertaking a function, even under direction, that they believe unlawful, without consequences.

There will also be the conundrums of how VicPol should react to those that have received adverse findings.

The difficulty with serving members is that they cannot possibly continue in their service after an adverse finding, the public would not accept that, Some may be charged with offences and the Director of Public Prosecutions (DPP), the arbiter in these matters, may not choose to prosecute some of them. There may be no other way but to suspend the members. Some members may face serious disciplinary charges as well.

Of equal or even more significant concern is who is going to pick up the Legal tab for what will now be, in the best-case scenario, a long and slow legally expensive process to finalise these matter in the Court system?
There is an argument that the legal costs incurred at the Royal Commission should be carried by the Crown, but the goalposts change significantly when the members and ex-members attract adverse findings.

We are inclined to the view that the Crown should not cover these legal costs as the obligations both moral and otherwise have been honoured by the State, which should no longer carry the onus.

There may be a role for the Police Association in the future legal costs for the serving members and the former members who contributed financially to the TPAV, for many years. However, blanket coverage for all is perhaps not realistic or fair, but each case should be decided on its merits.

As for the rest of the Force, it will continue, better for the experience where sharper and more precise lines are drawn on certain activates. Members may end up with more protection and executive officers who are inclined to see themselves above the Law, will curb their activities and ensure their language and instructions do not require subordinates to act unlawfully.

For everybody else, this distasteful episode will fade with time and the honour and integrity will be rebuilt in the venerated Office of Constable, achieved by the actions of all serving members.

The Lawyer X artifices should never have happened and had the matters been addressed as Sir Ken Jones attempted, and Ron Iddles tried to impact, this whole episode would have been avoided.

If you want to blame somebody, you now know who.