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.