VIC­TO­RIA … THE PLACE TO BE TREACH­ER­OUS

This must go fur­ther than just Lawyer X

The Australian - - COMMENTARY - MIRKO BAGARIC

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.

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