Inside Story

Don’t mention the law

If judges don’t have a clear idea of how police should behave, where does that leave everyone else?

Jeremy Gans 10 December 2018 2680 words

Victoria Police chief commissioner Graham Ashton at a media conference following last week’s High Court judgement and the government’s announcement of a royal commission. Ellen Smith/AAP Image

Part way through 2005, Tony Mokbel launched yet another of his bids to avoid prison. (His best effort — skipping bail and decamping to Greece during his prosecutor’s closing argument — was still six months in the future.) Mokbel was charged with being the Australian middleman in a cocaine importation deal, but his prosecutors faced two problems. Their star witness — Mokbel’s alleged buyer, who also happened to be a registered police informant — had vanished overseas. Worse, four police officers who taped the informant’s conversations with Mokbel were under investigation for the corruption enveloping Victoria Police’s drug squad. Mokbel asked the Supreme Court to make the police integrity office divulge all it knew about the four, and it fell to the office’s point man, Graham Ashton, to resist Mokbel’s push. Ashton argued that the disclosures would reveal the office’s secret methods and, worse, the identity of its informers.

One of Mokbel’s team of barristers must have felt a little conflicted by these arguments. Ten days earlier, she had herself signed on as a police informant and was already giving her handlers information about Mokbel and his associates. “If this gets out,” she told them at the time, “say nice things at my eulogy, because I will be gone — and enjoy the royal commission.” She must have been heartened when the Supreme Court largely rejected Mokbel’s arguments. Over the next three years, she went on to meet her handlers daily, keeping them apprised of Mokbel’s planned tactics during the trial (while formally defending him) and his later plans to avoid extradition from Greece (when he thought she was providing him with free legal advice).

Lately, Ashton, who is now the chief commissioner, has had much less success making similar arguments. Since his 2015 promotion, he has spent his entire term trying to suppress a report by the state’s anti-corruption commission into the police’s use of the barrister, whom the media had dubbed Lawyer X. Last month, his final defeat was dispensed by Australia’s top court, clearing the way for Victoria’s top prosecutor to send the report to some twenty affected criminals, including Mokbel. True to Lawyer X’s prediction thirteen years earlier, this disclosure swiftly prompted a royal commission. Thankfully, there have been no eulogies for her to date, but the professional days of those who approved the barrister’s role as an informant, including Ashton himself, are clearly numbered.

The stakes are much higher than the careers of Victoria’s senior police or even the lives of the barrister and her two young children. For starters, it is certain that some of the state’s most significant criminal convictions, including Mokbel’s, will be re-examined and, most likely, overturned. Still more seriously, the royal commission will surely need to grapple with the question of how both the Bar and, especially, Victoria Police went so dramatically awry in this case (and perhaps others). The fact that both Ashton and former commissioner Simon Overland, who reportedly championed the informer’s role, both came to Victoria from the Australian Federal Police may draw the latter’s integrity into question. Both police forces are long overdue for the sort of root-and-branch inquiries into governance and culture that occurred in Queensland in the late 1980s and New South Wales in the mid 1990s.

If it were up to me, the recriminations wouldn’t stop there. I’m with Ashton, who told the media last week that he “hoped that the context in which these events occurred is not forgotten.” He had in mind Melbourne’s “gangland wars” early last decade, which he labelled a “desperate and dangerous time” where “a genuine sense of urgency was enveloping the criminal justice system, including police.” His reference to the wider “system” is key. While there is no reason to think that the courts or parliament knew of the police’s use of Lawyer X until this decade, they both played an ignoble part in allowing the Victorian public’s understandable “sense of urgency” in the mid 2000s to develop into something far more dangerous.

The High Court’s judgement on Lawyer X is a slim affair. Procedurally, it merely signalled the seven judges’ belief — reversing an earlier decision by two of them — that the fight between Victoria’s police and prosecutors was worth the court’s time. But the judgement makes up for brevity in vehemence. The justices dish out verbal blows to Lawyer X herself (questioning not only her “appalling” ethics but even her care for her children) and Victoria Police (“reprehensible,” “atrocious” and unfaithful!). Their sharpest line has a broader target: “the prosecution of each convicted person was corrupted in a manner which debased fundamental premises of the criminal justice system.” Corrupted! Debased! These carefully chosen words signal that the hard-fought drug trafficking convictions of Mokbel and his associates are already as good as gone.

The court’s anger had been clear a few weeks earlier, during another high-profile case, when five judges took the extraordinary step of permanently ending four prosecutions arising from Australia’s worst bribery scandal. Victorian courts had found that, in their eagerness to prove the allegation that executives of a Reserve Bank subsidiary had bribed foreign officials into adopting the bank’s plastic currency, Australia’s two top investigative agencies had hopelessly blurred their distinct roles. In particular, the Australian Crime Commission illegally lent its most powerful tool — its Star Chamber powers allowing anyone to be forced to confess all on pain of criminal punishment — to the Australian Federal Police and wrongly allowed prosecutors to reap the rewards. The High Court overruled Victoria’s Court of Appeal, which refused to stay the prosecution, declaring that investigators must not be allowed to think that they can violate both the law and suspects’ rights “confident in the knowledge that this court would wave through the results.”

Alas, the High Court’s approach differed in the past. In the “desperate and dangerous times” of the early 2000s, Victorian police detectives, frustrated with criminal suspects’ refusal to talk to them, devised a complex scam in which they pretended to be fellow criminals running a lucrative gang that required a full confession as the price for joining (much like the legal profession Lawyer X joined). When that alone didn’t prompt admissions of serious crimes, the police added new twists to the scenario: real officers would offer fake evidence of the suspect’s guilt, which the pretend criminals would then offer to make go away through their corrupt contacts in the force. Not one of the scheme’s targets expressed the slightest surprise that Victorian police officers would either fit them up or corruptly clear them.

Neither prosecutors nor courts stopped the police’s scheme. As the gangland war heated up, Victoria’s Supreme Court judges repeatedly allowed prosecutors to present admissions gathered from the sting, while holding their noses at some of the details. Later, halfway through Lawyer X’s double dealings, the High Court waved the confessions through, holding that “no corruption of the legal system took place” and that excluding the confessions would reward criminals for trusting gangsters and corrupt police. Their sole “cautionary note” was that such operations carry the risk of “seduction of the officers.” Just one Australian judge dissented. Justice Michael Kirby wrote:

The state is a great teacher in society. If it sets debased standards for itself, there is a risk that such standards will proliferate and result in a lowering of confidence in the state and its officials and of respect for the rule of law.

Again, the word “debased” was no accident, and neither was Kirby’s reference to the role of the state. In prohibition-era America, Justice Louis Brandeis, dissenting while the US Supreme Court waved through evidence federal agents had found using illegal wiretaps, famously called the government “the potent, the omnipresent teacher.” (Four decades later, the same court reversed its earlier ruling.)

What lessons have Australia’s top courts taught this past decade? Is it okay for police to trick a young suspect into confessing by deliberately leaving out the second half of the official caution (“anything you say may be given in evidence”)? Sure, said chief justice Murray Gleeson and justice Dyson Heydon, because “every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute.” Is it okay for police to supply a young suspect with a hand-picked “youth liaison officer” who was willing to pass on anything he said to his investigators? Sure, said justice Virginia Bell, because that’s no different to someone confessing all to his or her mother. Is it okay for Australian police to gather admissions from a man while he was being held and tortured in Pakistan? No, Victorian judges (eventually) ruled, but the Commonwealth director of public prosecutions could still prosecute him by using an ABC interview he gave shortly after an earlier judge allowed the prosecution to use his Pakistan admissions to convict him.

The courts’ rulings sometimes vary. Late in 2011, the High Court stopped the prosecution of the Solomon Islands attorney-general for alleged child sex offences because Australian officials connived in his illegal deportation. A few weeks earlier, Victoria’s Court of Appeal permitted the state’s trial judges to toss out evidence because of Victoria Police’s widespread practice of obtaining search warrants without actually swearing (that is, orally declaring) the truth of the affidavits they presented to magistrates. But when Tony Mokbel responded by seeking to withdraw his guilty pleas to drug offences because the evidence against him was founded on illegal warrants obtained by anti-drug and anti-gangland taskforce officers, Victoria’s parliament hurriedly stepped in. Within hours of a Supreme Court ruling on Mokbel’s application — which justice Simon Whelan said that he would have rejected anyway — parliament rushed through retrospective legislation validating over a decade’s worth of invalid search warrants.

Attorney-general Robert Clark said parliament wasn’t excusing the police’s failings, only remedying all their “grave” consequences. Victoria Police could scarcely have missed the lesson: the courts or, failing them, parliament could be counted on to make good any and all of their mistakes and misdeeds on the way to ending the gangland war. It was during this period that Victoria Police first acknowledged that its handling of Lawyer X may have been an error.

Although rumours of Lawyer X’s double dealings eventually spread throughout the police, legal, media and criminal communities, the wider public knew almost nothing about them until last week. Victorians should be well used to this situation. For half a decade or more, court orders barred local media from reporting on the gangland war or its legal aftermath, with the aim of ensuring that dozens of individual jury trials could be held with each jury supposedly oblivious of the rest. The nadir of this “don’t mention the war” phase was when the courts banished the first season of Underbelly from Victorian screens, rejecting even the airing of its first three episodes (which were confined to the 1990s), despite Mokbel being unnamed and even actor Robert Mammone’s face being pixelated.

More recently, it has been the war between police and prosecutors over Lawyer X that no one could mention. For the past two years, the courts insisted that the chief commissioner be called AB and the director of public prosecutions CD, while Lawyer X was EF. When the case reached the High Court, the registrar omitted it altogether from the court’s official monthly bulletin and took the (probably) unprecedented step of holding a full hearing before all seven judges in total secrecy, omitting even the alphabet soup from its court list. The court’s dramatic judgement was itself kept hidden for nearly a month, postponing the resulting controversy from three weeks before Victoria’s state election to one week after. Lawyer X’s name remains unspeakable until at least next year, and the more detailed lower-court judgements in the case keep appearing and disappearing from internet repositories without explanation.

Given its courts’ reputation for suppressing anything and everything, the fact that all of this has happened in Victoria is no surprise. No one questions the importance of the orders’ purpose — fair hearings for alleged criminals and protecting the lives of Lawyer X and her kids — but their effects are another matter. Only the courts seem to believe that their lengthy ban on discussing the gangland war somehow caused Victorian juries to forget the war’s events and the criminal records of its participants. Indeed, the ban on Underbelly guaranteed widespread interest in the show, which was estimated to have reached a quarter of the population in the form of unpixellated bootlegs of the DVDs. Likewise, thanks to what is said (and never denied) to be the leaking of Lawyer X’s identity to the media in 2014 — simultaneously the greatest scandal of the Lawyer X story and the main reason we know about it — her informing has been widely known to her clients for years.

The courts reveal the pointlessness of their own orders whenever they are asked to consider the consequences of their own failure to suppress any secrets. When he ruled on yet another attempt by Mokbel to avoid prosecution in 2009, justice Stephen Kaye decided that the showing of Underbelly came at no great cost to Mokbel because the series portrayed everyone — including his alleged murder victim, Lewis Moran, and the anonymous chief prosecution witness in his trial — in a negative light. Anyway, he opined, media coverage rarely stays focused on anything and much of the publicity Mokbel received was due to his flight from justice three years earlier. More recently, Victoria’s courts were likewise sceptical of the risks of publishing Lawyer X’s identity to criminals who everyone agreed already knew about it. The judges were rightly dubious about claims by Victoria Police that gangland criminals would be loath to execute an alleged double agent until officials confirmed her role. Indeed, why would Mokbel and others try to kill her at all, given that she is now their latest and best chance for freedom?

While suppression orders are often ineffective at achieving their stated goal of keeping dangerous secrets from jurors or criminals, they are effective at keeping them off newspapers’ front pages. And that means that police officers contemplating improper deeds can rest assured that any significant consequences — in the form of the detailed media investigations of their role that prompt governments to order official inquiries — will be many years, perhaps decades down the track. By that time, the police can claim, as Ashton did last week, that the problems revealed are from a past era about which the proper lessons have been learnt. Never mind that Ashton himself was at the centre of those past scandals and was promoted in 2015, without his role being known, to a position that allowed him to fight to keep it secret.

Very occasionally, the courts reflect on their own role in the debasing of society. Justice Kaye, while hearing evidence from Mokbel’s lawyers about the publicity in his case, was shocked to learn that the Supreme Court itself was displaying an article detailing the defendant’s background outside its ceremonial courtroom, as part of an exhibition titled “Ned Kelly to Underbelly.” Kaye reflected that “it is appropriate that I note that the lapse from the high standards, by which our society has traditionally protected the presumption of innocence, has become so endemic, that an instance of it occurred in the building in which this court seeks to uphold the fundamental rights of the citizen.” But like so many of his fellow Victorian judges, Kaye drew precisely the wrong lesson from these events. In performing their role as “the great teacher,” Victoria’s courts have never been consistent, much less effective. Rather than being potent and omnipresent, their lessons have been too little, too late and, all too often, mixed. If even judges fail to learn the right lessons, then more scandals will be inevitable. •