VICTORIA … THE PLACE TO BE TREACHEROUS
This must go further than just Lawyer X
The Victorian government should be commended for announcing a royal commission into the dealings of Lawyer X but it is vital that the terms of reference go beyond this issue. The history of police impropriety shows that bad judgment and improper conduct is never compartmentalised to one matter or a few police officers.
Moreover, Victorians have every right to lack confidence in the integrity of their justice system. A decade ago, more than half of the Victoria drug squad was imprisoned for organised crime offences. And when it comes to dispensing “justice”, Victoria is the most secretive jurisdiction in Australia. There are more suppression orders in Victoria than the rest of the country combined.
It is obvious that there continue to be profound shortcomings with the Victorian legal system. The fact police would turn a criminal defence lawyer into an informer is the most egregious abuse of process that has come to light in Australia’s history. The High Court more than a quarter of a century ago in Dietrich made it manifestly clear that an accused has the inviolable right to a lawyer and if the state does not provide one, the matter must be stayed. A hundred times worse than not having a lawyer is having a lawyer who is secretly passing on information to the police.
The injustice is made palpably worse by the fact Victoria Police has been fighting in the courts for years to prevent the DPP from informing clients of Lawyer X’s role as an informer.
In a justice system that had proper regard for the rule of law, a royal commission would have been announced the moment the Independent Broad-based AntiCorruption Commission criticised the police for conduct relating to Lawyer X. It is only in a climate of utter secrecy that disfigurements of this nature can fester.
Instead, it took the Full Bench of the High Court (not known for its proneness to exaggerate) to state that the “Victoria Police were guilty of reprehensible conduct in knowingly encouraging (Lawyer X) to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer … As a result, the prosecution of each convicted person was corrupted in a manner which debased fundamental premises of the criminal justice system”, to mobilise the Victorian government.
Unfortunately, there are already concerns that the royal commission’s role will be compromised. Premier Daniel Andrews ininitially said the outcome of the commission won’t be to provide offenders with freedom and compensation cheques. It is impertinent for the Premier to pre-empt the recommendations of a supposedly independent inquiry into the most breathtaking legal scandal in Australia’s history.
Only last month, a 5-2 majority of the High Court in Strickland granted a permanent stay of prosecution to a number of defendants because their right of silence had been infringed when the Australian Federal Police inappropriately used the Australian Crime Commission to coercively interrogate the defendants. This abuse of process was held to be so serious that it effectively gave the defendants immunity from prosecution.
The level of impropriety involved in Strickland was trivial compared with that involved with a lawyer providing information obtained under the cover of legal professional privilege to police. Importantly, the role of a lawyer extends to not only representing clients but also influencing the decisions of clients in terms of how to proceed when they face criminal charges.
Any decisions made by clients of Lawyer X in terms of pleading guilty or contesting charges are now also potentially compromised. The foundations of every conviction against a defendant for whom Lawyer X acted are at risk. The police have declared that they always acted in good faith in handling Lawyer X. There are some instances where the ends justify the means. But the Melbourne gangland scenario, for all its brutality, could never be an instance where that calculus justified such an approach.
The bedrock of our civil society is a legal system that is adversarial in nature. The key agents in this are judges, police and lawyers. Their roles are distinct and equally important.
Any fusion between these roles irreparably debases the entire system and fundamentally breaks the rule of law. The response to the gangland issue should have been to confer more surveillance and police resources to deal with the problem; not police self-help.
Extreme events such as the gangland war can cause inappropriate responses, but not in a system that has appropriate checks, safeguards and accountability measures.
These are the broader issues that must be examined by the royal commission.
Mirko Bagaric is director of the Criminal Justice and Sentencing Project, Swinburne University. He acted for Tony Mokbel in his extradition case.