Victoria’s OPP drops 58 criminal charges over hotel quarantine debacle

Victoria’s Office of Public Prosecutions has blamed a loophole for dropping 58 criminal charges against the health department for failures which led to the deaths of more than 800 people.

Former Victorian health minister Jenny Mikakos and former premier Daniel Andrews in July 2020, as skyrocketing Covid-19 cases sent the state into the longest of its six lockdowns. Picture: Getty Images

Victoria’s Office of Public Prosecutions has blamed a loophole preventing it from using evidence from the Coate inquiry into the state’s hotel quarantine debacle for its decision to drop 58 criminal charges against the health department for failures which led to the deaths of more than 800 people.

The charges had been brought by WorkSafe — which on Wednesday said it was “deeply disappointed” by the decision.

The workplace regulator had alleged Victoria’s Department of Health failed to provide a safe workplace for employees or to ensure people were not exposed to health risks as part of its Covid-19 hotel quarantine program, which sparked the state’s deadly second wave of the virus in mid-2020, and the longest of Victoria’s six lockdowns.

In a statement released on Wednesday, an OPP spokesman cited a County Court judge’s ruling on April 9 that evidence given by 10 departmental staff members to retired Judge Jennifer Coate’s 2020 inquiry was inadmissable in the WorkSafe criminal proceeding.

The OPP chose not to appeal the County Court ruling, and on Tuesday dropped the charges following an application from taxpayer-funded lawyers acting for the health department to have the matter discontinued.

Victorian Director of Public Prosecutions Kerri Judd, KC.

“The court’s pre-trial ruling focused on S80 of the Inquiries Act 2014. That provision essentially prohibits the use of information given to the inquiry by a person against that person in any other proceedings,” the OPP spokesman said.

“The court’s ruling was that these witnesses provided statements to the inquiry on the department’s behalf. For that reason, the court ruled that evidence arising from those statements to the inquiry was not admissible against the department in this criminal proceeding.

The spokesman said the exclusion of the evidence “substantially weakened” the prosecution case.

“The Acting Director of Public Prosecutions, Acting Chief Crown Prosecutor, a Senior Crown Prosecutor and a Crown Prosecutor carefully considered whether there were reasonable prospects of a successful interlocutory appeal against the ruling,” he said.

“It was ultimately determined that there were not reasonable prospects of establishing that the judge’s ruling was not reasonably open to his Honour.

“As a consequence of the evidentiary ruling, a determination was made that there were not reasonable prospects of conviction in relation to the charges before the Court. Accordingly, on 30 April 2024, the prosecution was discontinued.”

A WorkSafe spokesman said the workplace watchdog was “deeply disappointed” by the decision.

“As an independent regulator, WorkSafe strives to enforce the highest standards of health and safety for workers and the community it serves,” the spokesman said.

WorkSafe charged the health department with the 58 breaches of the Occupational Health and Safety Act in September 2021, following a 15-month investigation, involving the review of tens of thousands of documents, including evidence submitted to the Coate inquiry.

At a March 2023 committal hearing, a magistrate found there was sufficient evidence to support a conviction and the Department of Health was committed to stand trial.

The Australian understands WorkSafe intends to conduct a detailed review of the matter and consider whether to provide advice to the state government on potential legislative reforms to the Inquiries Act, the Occupational Health and Safety Act, or both, to ensure that it is able to adequately fulfil the its regulatory role.

The OPP’s decision to drop the WorkSafe charges follows DPP Kerri Judd KC’s controversial decision last year not to lay criminal charges over the Lawyer X scandal, despite special investigator Geoffrey Nettle KC recommending key players, including senior police, be prosecuted for offences including misconduct in public office.

Victorian Opposition Leader John Pesutto. Picture: David Crosling

Opposition Leader John Pesutto said that even if the evidence out of the Coate inquiry, “which led to no one being held accountable”, was not admissible, “there are other ways you can adduce evidence in a criminal proceeding.”

“I don’t know why that’s used as a justification. It doesn’t seem to be persuasive to me,” the former lawyer said.

“I do want to recognise that there may be reasons that have not been articulated publicly, but like a lot of Victorians (I) today will be wondering why no one, whether in the Coate inquiry or now the abandonment of this criminal proceeding, no one is going to be held accountable for one of the worst disasters in Victoria’s recent history.

“There’s an expectation publicly by Victorians across our state that people will be held accountable when things like this happen, and continually, whether it’s Lawyer X, whether it’s this, whether it was the Coate inquiry, nobody was ever held accountable, and Victorians are wondering, can we continue to have confidence in our government, in our institutions, and that’s not the way our state should be led, whether it’s in the government or agencies of government.”

Victorian Premier Jacinta Allan. Picture: Andrew Henshaw

Premier Jacinta Allan said she had not been briefed on the dropping of the charges, news of which broke while she was in a national cabinet meeting.

“I’ve been in national cabinet all morning, so I have not been briefed on that case, so I cannot make a comment,” Ms Allan said.

“Based on what you’ve told me this morning, this was a decision by the independent DPP, so if the opposition is casting shade and inference on the DPP, that’s a matter for them to respond to in terms of why they would want to interfere with an independent officer in our justice system.”