Last nail in watchdog's coffin

A legal bungle has left critics baying for the Office of Police Integrity's blood

A legal bungle has left critics baying for the Office of Police Integrity's blood

WITH a furrowed brow and tightly pursed lips, Victoria's Office of Police Integrity director Michael Strong fired off one final comment before abruptly walking away from his own press conference. "I can assure the public that we regard this as a successful operation for the reasons I have given. Thank you very much."

But the "successful" 2 1/2 year OPI operation that Strong spent a stunningly short eight minutes defending had been left in tatters on the floor of the Victorian Supreme Court only half an hour earlier.

Its biggest target, former Victoria Police assistant commissioner Noel Ashby, had just walked away from the courtroom after 11 counts of perjury were dropped.

Ashby's conviction should have been the jewel in the crown of an OPI operation that began in 2007 with salacious public hearings. But an embarrassing legal loophole -- pointed out to the court by Ashby's lawyers -- not only led to the collapse of the case, but also left Strong staring down a sea of cameras answering questions about the future of his organisation.

The OPI must answer calls for it to be replaced by a broad-based anti-corruption body, such as an independent commission against corruption. Strong has dug his heels in, maintaining the operation was not the "unmitigated legal disaster" that Paul Mullett, the former police union secretary, has this week claimed it was. "Even if you put the perjury matter entirely to one side, this was a successful operation. An operation that served the public interest. The damage to Ashby's reputation has been the result of his conduct, exposed by the OPI, which led inevitably to his resignation from Victoria Police," Strong says.

But in the wake of his legal battle, a worn-looking Ashby has one question he really wants answered: "I just want to know the real reason for this inquiry. It doesn't seem like a success to me, and if the aim was to get me out of a job, then you have to ask why? What was I doing that was so subversive?"

He, alongside Mullett and former police media director Stephen Linnell, were alleged to have been a part of a chain of high-level police leaks that compromised the murder investigation of male prostitute and self-declared vampire Shane Chartres-Abbott.

Linnell was alleged to have improperly passed information about the investigation, Operation Briars, to his mentor Ashby, who in turn was alleged to have told his friend Mullett, who then allegedly passed the information on to police association president Brian Rix, who was alleged to have told Detective Sergeant Peter Lalor that he was the target of an investigation. Ashby, Mullett and Rix have consistently denied this.

Linnell was the only person convicted over evidence given during the OPI's public hearings in 2007. He received a suspended sentence last year. In a final blow, yesterday Linnell's lawyer announced he would appeal his perjury convictions.

Ashby has come out with his own set of allegations, linking the OPI investigation to serving state MPs. Ashby claims that on April 2, 2007, he was called to a meeting at the office of Tim Pallas, chief of staff to former premier Steve Bracks and now Roads and Ports Minister. There, he alleges, he had a 15-minute chat with Pallas. No briefing notes were taken, no other bureaucrats were present when, according to Ashby, Pallas briefly warned him to watch what he said over the phone to Mullett.

"He as a minister had some knowledge of a person's telephone being intercepted linking to an inquiry, and he shouldn't have . . . The law is strict when it comes to telephone intercepts, and the only people who need to know are the police minister and the attorney-general," Ashby says. He also alleges the OPI destroyed a sensitive file belonging to Labor MP Martin Foley, formerly the chief of staff to Police Minister Bob Cameron.

Neither Foley nor Pallas would respond to the allegations yesterday, but both MPs have previously denied Ashby's claims. Pallas has denied any prior knowledge of the OPI probe or giving Ashby any kind of tip-off.

The outcome of the case has drawn responses from around Australia. Anti-corruption campaigner and former West Australian police commissioner Bob Falconer says Victoria needs its own anti-corruption body, with the power to interrogate all public office holders, not just the cops.

"Clearly some of the worst corruption cases have input from other parties," he says.

For some, such as former National Crime Authority head Peter Faris QC, the fact the Brumby government has not set up a broad-based corruption body leads only to one suggestion.

"One of the inferences that can be drawn from their continual refusal is that don't want their own people in government investigated," he says. "The investigators stop at the doors of parliament . . . Is it because they have something to hide? If they haven't got anything to hide, what's the problem?"

Victoria and South Australia are the only states that do not have an ICAC that can investigate across government agencies.

Faris, who has been calling for years for the establishment of such a body in Victoria, believes the OPI is a "hybrid scheme" that is obviously not working properly, and the Ashby debacle is proof.

He also believes the way the OPI aired allegations of corruption in public hearings with Mullet, Linnell and Ashby -- before they were tested in the criminal justice system -- was outrageous. "I think it's absolutely disgraceful," Faris tells The Australian. "It's totally contrary to the principles of criminal justice. [For the OPI] to use their arbitrary power to parade these people like animals in a circus for the public is a disgrace. They should now apologise, but they won't."

But Queensland barrister Mark Le Grand, a former director of the official misconduct division of Queensland's Criminal Justice Commission (part of what became the Crime and Misconduct Commission), believes Victoria first needs to have a royal commission determine the extent of any corruption before a body to address it is established.

"I think it is putting the cart before the horse," he says of calls for an ICAC-style body to be set up straight away. "I think you need a royal commission first to determine what kind of a corruption problem [if any] you have in Victoria. I think you need to get to the root cause of the problem before you can set up any kind of body, otherwise you are just treating the symptoms, not the cause."

Le Grand, who was also the Victorian-based deputy director of the Commonwealth Department of Public Prosecutions, says the Ashby debacle shows the OPI has problems doing its job.

"It's clearly a huge embarrassment and does show a certain level of ineptitude," he says.

The barrister also says Premier John Brumby has "failed to grasp the nettle" and deal with corruption allegations.

But the Brumby government may be preparing the ground for a change of heart. In November it appointed businesswoman Elizabeth Proust to conduct an investigation into Victoria's three anti-corruption bodies: the OPI, the Ombudsman and the Auditor General. For now, Brumby continues to staunchly defend the OPI, despite the events of this week.

"As the head of OPI, Judge Michael Strong has made very clear, if you look at the record of the OPI in terms of maintaining integrity of Victorian police and rooting out any corruption that's there, their record is a better than any comparable police integrity or crime body anywhere around Australia," he says. "So when he says they delivered results, if you look objectively over the history of the OPI, they have delivered results."

Brumby says the existing anti-corruption bodies give Victoria "better focus" on tackling corruption issues than "any other state".

For the OPI in the end, the blunder that led to the collapse of its most high-profile prosecution came down to chronology. The OPI is allowed to delegate its far reaching royal commission-style powers to an "appropriate person" who can on its behalf conduct public hearings under oath.

The problem for the Ashby prosecution was that the chosen delegate -- retired judge Murray Wilcox QC -- was himself not lawfully sworn in and Judge Robert Osborn ruled last Friday that Wilcox "did not have by law authority to hear, receive and examine evidence".

The oath Ashby swore was therefore not an oath at all, and without an oath there could be no perjury. It was suddenly totally irrelevant whether or not Ashby told the truth when he took the stand on October 15, 2007 to give evidence before the OPI about an alleged series of high-level police leaks claimed to have comprised a murder investigation. The only point of law that mattered was that former OPI director, career bureaucrat George Brouwer, delegated his powers to Wilcox on September 24. If he had waited just one day, until Wilcox was sworn in on September 25, the outcome might have been very different.

NSW Law Reform Commission chairman Justice James Wood, who ran the royal commission which recommended the establishment of the Police Integrity Commission in NSW, said the mistake was "unforgivable".

"I think it's very disappointing that there was a mistake, human error of that kind is really unforgivable," he said.

Mullett, never known to temper his resentment toward the OPI, said the loss of the Ashby case was "the final nail in the OPI's coffin".

Victoria's police chief has not rushed to defend the OPI either. Simon Overland, who Ashby claims was a former factional rival of his, voiced his disappointment that the "merit of the charges" against Ashby would never be determined before a jury. He has defended the need for a police oversight body, but says whether that remains the present OPI is a matter for the government, not him.

If a final nail does seal the fate of the OPI, it is likely to come from Proust when she delivers her verdict on Victoria's wounded anti-corruption agencies.

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COPS CHASING THEIR TALE

• April 6, 2003: Self-proclaimed vampire Shane Chartres-Abbott, on trial for rape, shot dead by two gunmen.
• August 2004: Anti-corruption watchdog Office of Police Integrity established by the Victorian government.
• May 30, 2007: OPI launches investigation into claims senior police figures leaked confidential information about the Chartres-Abbott murder.
• September 2007: Detective Sergeant Peter Lalor linked to Chartres-Abbott murder.
• September 25, 2007: OPI private hearings call assistant commissioner Noel Ashby, police media director Stephen Linnell and police union secretary Paul Mullett to attend.
• November 9, 2007: Ashby quits force as revelations emerge about his dealings with the covert investigation into Chartres-Abbott's death.
• November 12, 2007: Linnell resigns after admitting he lied to OPI inquiry.
• November 15, 2007: Mullett is suspended after the head of OPI inquiry said he appeared to have interfered in a murder investigation.
• July 29, 2008: Ashby charged with 29 criminal offences.
• May 20, 2009: Mullett committed to stand trial on perjury charges for allegedly lying to closed police integrity hearings. The charges are later dropped.
• March 25, 2009: Linnell avoids jail with suspended sentence after pleading guilty to perjury charges.
• February 9 2010: Perjury case against Ashby dropped.

AAP