‘They never had the power to be police’: Defence lawyers scramble to identify cases

Defence lawyers are scrambling to identify potentially thousands of cases involving Victorian police, who never had the power to act as officers, following an error that the government says will be fixed with retrospective legislation.

Lawyers say a new law may salvage prosecutions but that the impact on the criminal justice system may be immediate, with reports from lawyers of cases being adjourned for at least eight weeks to establish the power of the police involved.

Chief Commissioner Shane Patton and Police Minister Lisa Neville speaking to media on Thursday.Credit: Wayne Taylor

In an administrative bungle made public on Thursday, it was revealed an error in legislation meant more than 1200 police, protective service officers and custody officers were sworn in by someone without the authority to do so. An almost identical error occurred in New Zealand, which was rectified with retrospective legislation in 2013.

In Victoria’s case, police sworn in as far back as 2014 did not have the power to perform their duties, thus throwing into question innumerable arrests, charges, fines, searches and evidence obtained by these officers.

“It’s concerning,” Law Institute of Victoria president Tania Wolff said. “And I think that concern has been felt in every criminal law practice and court across the state today.”

Though it is still unclear how many prosecutions could be affected, individual police were contacting prosecutors on Thursday to say they were not sworn in properly, while criminal lawyers have been contacting investigating officers in their clients’ cases to find out their status.

“We have an obligation to interrogate every possible defence so we’re on the front foot about it,” solicitor Ruth Parker said.

“It is an extraordinarily complicated issue which I think will be rendered nugatory by retrospective legislation, but in the meantime, matters are being further adjourned off, contributing even further to the incredible delay, bearing in mind there are accused persons and victims seeking finality.”

Police accountability lawyer Jeremy King said technically, people on remand in custody could bring urgent applications before the court to raise the issue.

“It’s a massive issue. You have an enormous number of civilians using arrest powers and use of force powers, all unlawfully,” Mr King said.

Law Institute of Victoria president Tania Wolff.Credit:

Police Minister Lisa Neville said the government would introduce retrospective legislation during the next sitting week of Parliament in a fortnight’s time. The law would effectively return the officers’ power.

The error arose when changes were made to the Victoria Police Act by the former government in 2014, which meant deputy commissioners appointed acting assistant commissioners without the required power. Those acting assistant commissioners then swore in some graduating police officers.

Ms Neville said the officers in question acted in good faith and there was no misconduct.

“It’s not an ideal situation for us to be in, but I can assure [the public] we’re moving as quickly as possible to fix this issue,” she said.

Defence lawyer Bernie Balmer said a number of scandals, including Lawyer X and not this error, has eroded trust.Credit: Justin McManus

Chief Commissioner Shane Patton said he was confident retrospective legislation would render questions about affected cases a “moot point”, but said disclosures would be made to affected defendants.

He said each case would need to be looked at individually because of the nuances involved. For example, there could be one officer involved in a prosecution who was improperly sworn in, but there were other officers who investigated, so it may not render a case invalid.

“I expect there’ll be no ongoing ramifications for any of the police officers involved in this matter once the legislative provisions have been remediated. They have been acting in good faith. They have been performing their duties in the belief that they had the requisite powers and as a result of that, we will continue to indemnify these officers,” Mr Patton said.

The Independent Broad-based Anti-corruption Commission said it was assessing whether any further action was required by the watchdog. The Office of Public Prosecutions declined to make a comment.

‘It’s not an ideal situation for us to be in, but I can assure [the public] we’re moving as quickly as possible to fix this issue.’

Police Minister Lisa Neville

Melbourne defence lawyer Bernie Balmer said the justice system relied on trust and that those involved – such as police and lawyers – would act properly. But, he said, that trust had been eroded following scandals such as the force’s use of barrister-turned-informer Nicola Gobbo.

“What other cesspools are we in?” Mr Balmer said. “If you haven’t got the authority to do something, then there’s a flow-on effect. The flow-on effect is perhaps unlawful imprisonment, illegally obtained evidence, court results that are flawed. That might lead to civil litigation.”

The confusion the bungle created in the courts on Thursday was clear, with prosecutors in one high-profile case – that of a police detective charged with sharing a photograph of former AFL coach Dani Laidley – saying the error could deal a “fatal” blow to their case.

Prosecutor Neill Hutton said checks were needed to determine whether the officers involved in the case were affected, asking for a verdict to be deferred until there was clarification. A police spokeswoman later say that none of the officers involved were improperly sworn-in.

Mr Patton said the error was uncovered during a court hearing for a major drug investigation in February last year. He said police first believed the issue was confined to the one case, but an audit conducted later confirmed how widespread the error was.

Victoria Police began the re-swearing of officers on Thursday, with hundreds taking the oath again online.

The error echoed another mishap from 2011 when Victorian police admitted they had not correctly sworn on (either by swearing on a Bible or via affirmation) thousands of affidavits to facilitate search warrants.

The Baillieu government pushed through retrospective laws to salvage more than 6000 prosecutions a year later, but there were multiple court judgments beforehand that either rendered evidence inadmissable or confirmed evidence could still be used by officers who acted in good faith.

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