16th December 2020
The original version of the publication contained a reference to Mr Findlay McRae managing Ms Gobbo as a human source. This is incorrect and has been removed. Mr McRae was not involved in the management of Ms Gobbo as a human source.
Interesting that, ‘the powers that be’, have decided to refer the head of the 600 strong Victoria Police Legal Services, Findlay McRae, to the legal regulator who polices the Practising Certificates of lawyers, over his role in the Lawyer-X debacle. Very embarrassing that this head of a Legal Department with rooms full of lawyers can get something so legally wrong.
However, this referral to the Legal Services Commission all seems a bit strange and disjointed, a bit, ‘cart before the horse’ esque. It has all the hallmarks of another catastrophic debacle in the making; as if we need another.
As we pointed out in our recent article, ‘LAWYER X – it’s not just the cops’, the potential exists for a number of police as well as legal practitioners to face serious criminal charges over Lawyer-X, and the Government has announced that they will appoint a Special Investigator to deal with these matters and make recommendations for any prosecution to the Director of Public Prosecutions. In our view that is the appropriate course of action.
There has always been a hierarchy of legal processes, with any criminal law matters preceding civil matters. It looks remarkably like the Government has chosen to ignore this principle raising some interesting issues.
With McRae fronting the Legal Services Commission before any criminal investigations start, is a bit like the police being dealt with by the police internal discipline system before their role in whatever malfeasance they are alleged to be involved in, is investigated. That would be inappropriate and like the Legal Service Commission probe, could jeopardise any criminal prosecution.
This also leaves Chief Commissioner Patton with a quandary. Patton can hardly leave McRae in charge of the Police Legal Service where his professional standards compliance is critical, while they are under review.
.Complicating matters is that we know that Assistant Commissioner Luke Cornelius also played a senior role in the management of Lawyer-X.
If the circumstances relate to one, they should equally apply to the other, and any number of other lawyers within Victoria Police and lawyers engaged for various aspects in the Gobbo legal stoush; spanning many years.
It is beyond reasonable belief that all the internal and external lawyers used to defend the exposure of Gobbo were unaware of her role. If they claim they did not know, then what were they defending her identity for or from? Why any of them didn’t have their professional ethics piqued, is amazing and an indictment on their profession.
The Legal Services Commission, if they do their job, are going to be very busy. However, as the fallout of this Royal Commission will improve policing it may also improve the ethics of the legal profession in this State. Both very desirable outcomes and will be applauded by the majority of lawyers and police who are ethical.
In our view, both lawyers McRae and Cornelius should be stood down from Victoria Police, and for that matter any other lawyers in the employ of Victoria Police that took part in any matters relating to Gobbo until an investigation can make recommendations on their ability to continue to hold a Practising Certificate. Likewise, law firms engaged by VicPol on this issue should be sidelined until the ethics of their lawyers can be reviewed.
Sworn police members who are subjected to investigation that could impinge on their duty as sworn police are suspended regularly until the matters are resolved. That same principle must apply to lawyers until their Certificates to Practise are reviewed and a conclusion reached. This is separate and distinct from any criminal matters that may be alleged against them.
The public will not accept being policed by police who have serious crimes alleged against them, and that is not unreasonable. However, in our view, those same principles should apply to legal practitioners. The public is entitled to know that lawyers with serious criminal and or professional matters alleged against them are not performing any legal functions.
In the case of lawyers, this is more important for internal police lawyers because in their legal function, preforming their normal roles, they could easily become involved in matters that become serious conflicts of interest.
The most significant risk, of course, is that the Special Investigator, yet to be appointed, starts with at least some targets already under investigation in another jurisdiction operating at different legal standards which could well end up compromising the criminal investigations that are to come.
The other risk already manifesting is that the Government will approach the findings of Justice McMurdo in a piecemeal, uncoordinated manner, so we may never know when this issue is completed. This approach exposes the risk of conflicts in the processes ending up with a nil-all result.
Prior to the appointment of the Special Investigator, there needs to be an independent Commissioner appointed to coordinate the response to the Royal Commission findings or like many Royal Commissions and inquires past there is a likelihood of,‘ Cherry picking’ findings, and in the end those responsible not implementing or diluting the recommendations made. The Black Saturday Royal Commission springs to mind.
As the fictional character Sir Humphrey Applebee of ‘Yes Minister’ fame would say, ‘the governments come and go but the public service is here to stay, so we only have to wait for an election and no matter who wins we have a clean slate and we continue on as we always do’.
That is not what Victorians need or deserve; we want ethical delivery of legal services in this State.
The CAA calls on the Andrews Government to appoint a review Commissioner who can ensure that the recommendations of McMurdo are implemented in a timely and professional way. This same Commissioner could look into the Quarantine Inquiry and provide the same service.
The High Court has observed that conducting a discipline investigation prior to conclusion is a contempt of court. In the case of Hammond v the Commonwealth (1982) 152 CLR 188 the High Court dealt with the appropriateness of this. That matter concerned a Royal Commission examining malpractice in the meat industry and concurrent criminal charges against Mr Hammond.
Section 371 of the Legal Profession Uniform Law provides Legal Service Commissioner’s investigators with coercive powers similar to those in s 171 of the Victoria Police Act 2013. Thus the High Court decision in Hammond is right on point for the current referral of a police lawyer to the Legal Services Commissioner.
The High Court held that to conduct a parallel non-judicial inquiry into the very matters forming the basis of criminal charges against a potential witnesse constitutes an interference with the due administration of criminal justice. Gibbs CJ stated:-
“Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence.”
Chief Justice Gibbs further observed:
“… if during the course of a commission’s inquiries into allegations that a person had been guilty of criminal conduct, a criminal prosecution was commenced against that person based on those allegations, the continuance of the inquiry would, generally speaking, amount to a contempt of court, and that the proper course would be to adjourn the inquiry until the disposal of the criminal proceedings.” (emphasis added)
It is likely therefore that no discipline investigation by the Legal Services Commissioner will occur until after all criminal proceedings, if any, are finalised.
A very well written and important article for so many reasons with far reaching consequences and I for one really appreciate the constructive work the CAA are doing however a powerful independent government watchdog is clearly what’s required and has been for decades – right now more than ever!
Hopefully in time this can ultimately improve an implicated law fraternity absorbed by Vic-Pol who then wrap Vic-Pol up in layers of protection. This is devoid of empathy for the lives ruined in the process. No doubt these lawyers hide behind their professionalism “I was just doing my job” just as certain Vic-Pol members and politicians suffer amnesia and the ‘Nuremberg defence’ which still appears acceptable in the eyes of their judiciary and those Commissioners who run these money making Royal Commission grabs that merely scratch the surface rather than broaden the scope to get to the source of the issues. A sceptic may think there is an underlying reason for this. It’s a deeply embedded situation of systemic corruption indicating a hopeless dilution of the doctrine of the ‘separation of powers.’ It’s naturally become even worse under the current dictatorship of Daniel ANDREWS in what appears to be a learned behaviour of what they can knowingly and wilfully get away with over time… they’re all complicit, blind freddie can see that pardon the pun. The integrity of Vic-Pol as an organisation is rightfully under siege yet they attempt to convey a public perception they have already learnt and moved on (this will take over a decade in reality as we all know nothing happens quickly). Thus this is concerning in it’s own right as it indicates Command are currently misunderstanding of their position and conversely have not learnt at all – it’s a vicious cycle with no end in sight.
I wonder what happens with all the previous brutal internal police discipline investigations under PSCs former disgraced A/C Brett GUERIN? I know by way of fact previous Vic-Pol Discipline Convenors involved in the punitive internal Kangaroo Court process have been implicated in police suicides and a rapid decline in members health as per statistics and recent police suicides. You only have to Google the former Discipline Convenors names and it’s public information which I find extraordinary in itself. I understand former Discipline Convenor was coercing police members to submit material in the discipline stream relevant to live criminal matters being afoot and she has a law degree. She was also implicated in at least one very public police suicide which was then investigated by the OPI albeit I’m not certain of that particular outcome – presumably just another white wash either by OPI or Coroners Court.
Why are they so heavily protected and unaccountable but from a psychological perspective why do they behave this way in the first place, is it narcissism at that level whilst the true leaders within the rank and file go home to their families? selfish reasons of promotion?You’d think the TPA Legal Team would do something about these serious ongoing issue and or their contracted lawyers until you understand therein lies a wider part of the problem which requires further investigation from an outside body, a body with integrity, resources and appropriate powers pfffttt…. That’s if there is any integrity left in the law in 2020 surrounding Victoria Police. “Ignorance of the law is no excuse” I was once led to believe and I naively presumed this was applicable to the DAU Vic-Pol Civil Litigation, the OPP, Vic-Pols contracted lawyers, TPA Legal Team of which their current Manager also has a law degree. Clearly having a law degree does not denote ethics, integrity or emotional intelligence when working in conjunction with Vic-Pol. I stand to be corrected but surely you’d have to be indoctrinated not to see it. Media attention, exposure and transparency is becoming very important in an apathetic society currently dictated to by a leftist socialist Marxist regime and politicised police force thanks to Daniel ANDREWS who should also be held to account in a waning democracy? This exposure is certainly in the interests of the wider public who have their taxes plundered by VGSO in an attempt to cover-up police corruption. Do VGSO understand natural justice, procedural fairness or model litigant rules. How about the police oath, code of conduct, ethics or mission statement once applicable to members or the VPA. At what point do VGSO inject themselves unethically in the criminal process as applicable to them attempting to defend unprosecuted police criminal offences…??? I could go on and on regarding this particular topic.
The so called Honourable Premier ANDREWS recently chose not to provide further funding to the independent toothless body IBAC… I wonder why??? Perhaps he would stand to be investigated himself along with the once great police force he has now successfully politicised as per the contradictions between the handling of the leftist ‘BLM activist movement’, starkly contrary to the oppressive coercive treatment of ‘Covid protestors’ who had their basic fundamental human rights extinguished. All the while an A/C was preaching a platform of health which seemed a touch ironic. He also insulted the public ‘tin had brigade’ who were ‘bat shit crazy’ – excuse me? This was more akin to incitement and provocation than conciliatory. Is this the level junior members can hope to aspire to, fair dinkum?
Just on that note it appears a leftist Marxist socialist movement is currently upon us in Victoria under the guise of ‘activism’ a potential global movement towards Totalitarianism and centralised control. I’m looking forward to escaping this once great State I relocated to. As a 44 year old Caucasian Aussie male with 3 gorgeous young daughters I have been made to feel disconnected in my own country. I used to turn to the sport for escapism mostly cricket and footy but now these very same social and political issues pursued by the tyranny of the minorities has ruined my inner peace whilst I battle to watch the sports now injected with these very same issues that frustrate the silent majority. What we really require is a move back to true leadership. BTW my Toyota Aurion now identifies as a Ferrari in terms of the new PC ‘normal’ regime designed to remove our freedom of speech slowly over time in a subtle ‘divide and conquer’ mentality which may eventually divide us all. For that reason I hope I haven’t offended anyone but the facts don’t care for our feelings and there can be no certainty in the law if we start criminalising the English language we ironically learned from the State. I feel better already, literature being the ultimate therapy whilst it’s still legal, alas now back to the cricket….