How Overland dodged a bullet

PHONE taps, enmities and a murder probe put Victoria Police in the spotlight.

IN an article in The Age nine months ago a journalist wrote about a nugget of remarkable evidence nestled in the little-known 23-page sworn affidavit of the man who is now Chief Commissioner of Victoria Police, Simon Overland.

Overland admitted a number of facts in this affidavit, dated November 1, 2007. The Age's Melissa Fyfe focused on the fact Overland, by his own admission, had passed on secret intelligence to his colleague, then Victoria Police media chief Stephen Linnell. The intelligence was from a telephone tap during a covert murder investigation called Operation Briars.

Although The Age's article was placed well back in the newspaper, its angle was powerful: Overland's action in passing on the secret intelligence from the telephone tap had been illegal, according to Paul Mullett, former secretary of the Police Association, Victoria's registered trade union for police.

Mullett, who had received the previously undisclosed affidavit months earlier as part of his entitlement in a legal discovery process, was accused by the Office of Police Integrity in late 2007 of leaking secret intelligence about the same covert murder investigation. A criminal prosecution of Mullett flowed from the OPI's scathing findings against him and others in early 2008.

Prosecutors, relying on the OPI's evidence, decided to abandon prosecution in June last year, causing the case against Mullett to collapse before the trial began.

Magistrate Peter Couzens had concluded in committal proceedings in May last year: "There is a palpable lack of direct evidence. There is an abundance of chaff, and few grains of wheat, so few that Mullett should not be directed to stand trial on charge one."

The Age's article on September 13 last year is believed to mark the first time the affidavit by Overland was made available to the media. Surprisingly, an extremely important issue raised in the article quickly went away.

It was hosed down by OPI spokesman Paul Conroy, who told The Age the OPI's lawyers had examined the affidavit and relevant sections of the Telecommunications (Interception and Access) Act, adding "they believe it does not constitute a breach. And we've received no complaints about any such matter."

Overland dodged a potential career-ending bullet.

For reasons that are inexplicable, The Age's article omitted the most extraordinary facts that were in Overland's affidavit.

These facts explain why Overland had passed on the secret intelligence to Linnell. They throw a completely different light on Overland's conduct, the OPI and the debacle they started.

The Australian can reveal that Overland passed on the secret intelligence from the telephone tap for reasons that were entirely personal. He was striving to avoid embarrassment in the media and he makes it plain from his affidavit that he wanted to use the secret intelligence to smother an inconvenient story about him.

Overland did not want to endure any public discomfort that might have arisen if a story about him being offered a taxpayer-funded management course at Fontainebleau in France were leaked to Melbourne radio 3AW's The Rumour File.

The Australian's investigation also shows it was Overland's disclosure to Linnell that led to the collapse of Operation Briars. Overland did not intend to destroy a covert operation, but by passing on the information to Linnell which was against protocol Overland unwittingly initiated a series of indiscretions.

As a result of Overland passing on the secret intelligence, and the subsequent indiscretions of others, the target of the covert murder investigation, then sergeant Peter Lalor, who was also a union delegate, discovered his telephone was being intercepted. (Lalor has subsequently denied any wrongdoing and strenuously rejects a contract killer's claims that Lalor assisted in the murder of Shane Chartres-Abbott, a prostitute, by providing the address of the target to his killer.)

The collapse of Operation Briars and the leaks surrounding it were the subject of an exhaustive OPI inquiry that involved days of hearings in 2007.

But the OPI inquiry failed to highlight some of the most pertinent facts. The inquiry did not release Overland's affidavit.

As the public record shows, Overland and the OPI -- knowing of his disclosure of secret intelligence, of his motives and the outcome -- blamed others for the leaks.

They backed the criminal prosecutions that were launched as a result. The OPI described its inquiry as a cleansing success. The OPI's deputy director at the time of the investigations and the inquiry, Graham Ashton, was welcomed by Overland to Victoria Police as the most senior non-sworn employee of the organisation when he moved across late last year.

Leading Melbourne barrister Phillip Priest QC, who defended former assistant commissioner Noel Ashby, describes the OPI's conduct as corrupt.

Terry O'Gorman, a civil liberties advocate with no connection to any of the parties in Victoria, said he believed Overland's action as shown by his affidavit was a gross abuse of the investigative process and possibly illegal.

Former National Crime Authority member, Criminal Justice Commission investigations chief and Deputy Director of Public Prosecutions Mark Le Grand says he is stunned by the contents of Overland's affidavit.

"How a [then] deputy chief commissioner could imperil a pro-active murder investigation to address such trivial personal concerns is truly incomprehensible.

"You cannot just go out and disseminate information from a telephone intercept because you don't want to be embarrassed in the media. This is just extraordinary stuff from the officer who is supposed to control the force, to superintend investigations, to ensure discipline and to enforce compliance with the law."

The Australian's investigation, which relies on sworn testimony to the OPI, concludes Overland made a critical error of judgment that had serious consequences on August 14, 2007, when he decided to pass on secret intelligence from a telephone tap because of concern for his own reputation.

OPI media manager Conroy was sent 12 questions by The Australian yesterday in relation to the conduct of Overland and the OPI .

Conroy replied yesterday: "As presently advised, OPI lawyers do not consider that the claims raised show a breach of the telephone intercept legislation. We are not making any further comment at this stage."

Overland, who was sent similar questions, replied through a spokeswoman: "Our comment is that our advice is that the Chief Commissioner has not committed an offence."

The responses shed no light on why Overland's conduct was not subjected to the fierce rigour that the OPI applied to others during its leaks inquiry in 2007.

The Australian's investigation shows the OPI operated with a double standard, which has been exposed by comparing its treatment of Overland with the treatment of Overland's adversaries, Mullett, Ashby and, to a lesser extent, Linnell.

This is how the OPI's public report, at paragraph 49, dealt with Overland's action in passing on the secret intelligence from the telephone tap. "In the course of their discussion, apparently, Overland told Linnell about the intercepted Mullett-Lalor conversation on that topic."

The effect of Overland's action was disastrous. In a comedy of errors, wild indiscretions and misunderstandings, the target of Operation Briars, Lalor, received an accurate warning 48 hours later to be careful about whom he spoke to, and implicit in that was a warning to be careful on his telephone. Lalor would not have been warned if Overland had not started the chain of indiscretions by trying to media-manage a rumour about himself.

As carefully explained in his affidavit, Overland volunteered to Linnell on August 14, 2007, that Mullett, the then head of the police association, and Mullett's union confidant, Lalor, "are talking about" leaking the story to 3AW's The Rumour File.

Linnell was also told by Overland that this fact had come from superintendent Rod Wilson, head of the Operation Briars taskforce.

Wilson had told Overland: "Look, they're talking about leaking it to the media, they're talking about running it through The Rumour File."

What follows is the critical part of Overland's affidavit that explains his motives for passing on the secret intelligence.

Overland: "I was sensitive about that matter because I had a previous experience with The Rumour File, where Mullett ran a story through The Rumour File about me. Radio station 3AW picked it up and started reporting it as a news item without actually coming back to me. I actually rang the news director down there. They then pulled it off because it simply was not true. But I knew Mullett was behind it. So I thought, 'Well, they'll do the same thing with this. They'll just set me up.'

"I went back to Linnell and I said, 'Look, you just need to be aware I've just got a call from Rod.' I did not specifically say TI, but I said, 'I understand Mullett and Lalor are talking about this. I understand they're going to run it through 3AW so it's going to be a Rumour File story. You need to watch it.'

"I thought he had killed the story after we had the first conversation because he came back to me and said 'story's dead'. We had no further conversation about it other than he rang me the next day to say, 'Look, it hasn't run on The Rumour File'."

Wilson agreed with Overland's evidence. In his affidavit, Wilson described the "reliable information" about Fontainebleau being discussed between Mullett and Lalor. Wilson stated: "Mullett told Lalor that Mr Overland is spending six weeks at Fontainebleau in Paris on an intensive business course [in September 2007] at a cost of E30,000, which is $120,000 to the taxpayer. Mullett stated that he intended to leak the information via the 3AW Rumour File. As far as I am aware, they initially contacted a journalist at The Age, Andrea Petrie, to run the story. I contacted Mr Overland and informed him of the possibility that a media article may be published about him in an attempt to cause him embarrassment."

In the tapped conversation that began at 9.15am, Mullett and Lalor discussed a range of industrial issues, office politics, a farewell event for a retiring officer and the gossip that Overland would be heading off to Fontainebleau, They discussed planting the rumour on 3AW's Rumour File.

Incredibly, Overland's disclosure to Linnell of police knowledge of this actual conversation was the real catalyst for the collapse of Operation Briars within 48 hours.

On hearing from Overland, Linnell warned his friend and mentor, Ashby, out of concern that if Mullett's telephone were being tapped, then Ashby could be sure some of their conversations were being intercepted.

Ashby realised his exchanges of gossip could be embarrassing to them both. He warned Mullett, who relayed it to his union president Brian Rix, who warned Lalor.

As OPI inquiry chief Murray Wilcox QC said in his report: "[Ashby] was in a panic about the possibility of his conversations with Mr Mullett having been intercepted."

The cat was out of the bag.

Warrants to tap Lalor's telephone were authorised under the Telecommunications (Interception and Access) Act. However, it is a criminal offence to communicate information that is likely to enable the identification of a telephone or its user to which or whom an interception warrant relates, unless it is for a permitted purpose. The circumstances under which Overland conveyed the intelligence about the Lalor tap to Linnell did not constitute a breach, according to the OPI and Overland yesterday.

Linnell was already aware of the objectives of Operation Briars because he was a member of an advisory group, and he was preparing advice on a media strategy for when the operation went public.

Linnell was not to receive operational intelligence such as the product from telephone taps. Overland stressed in his affidavit that secrecy was paramount and a strict "need to know" principle had been adopted. "It was just to be as secure as we could possibly make it. It does not come much more sensitive than this," he stated.

Overland's disclosure caused immediate alarm in Linnell because he had already heard the Fontainebleau rumour, days earlier, in an August 8 telephone conversation with Ashby.

This conversation between Linnell and Ashby was intercepted by the OPI as part of a separate secret investigation into Ashby, which remains a mystery in terms of its justification. (Ashby was acquitted earlier this year of charges arising from the OPI's hearings.) At the time, in 2007, Ashby, Linnell, and Overland were not aware of this separate investigation, called Operation Diana.

When Overland went to Linnell on August 14 to pass on the secret intelligence, Linnell correctly suspected Ashby must have been the source for Mullett's information about the Fontainebleau rumour.

Ashby told Mullett about the Fontainebleau proposal on August 9, and this conversation was also intercepted by the OPI.

The penny dropped for Linnell. Although he already suspected Lalor's telephone was being tapped as part of Operation Briars, Linnell feared Mullett's phone might also be tapped. Linnell panicked about this possibility and almost immediately tried to warn Ashby to be careful about talking on his telephone to Mullett. Ashby warned Mullet on the same day to be careful.

Mullett decided it was unlikely his phone was being tapped, but it was probable Lalor's phone was tapped.

Mullett has always insisted he believed Lalor's telephone was being tapped because of a separate police probe into the role of Lalor as the anonymous author, nicknamed "Kit Walker", of emailed newsletters that were infuriating the police hierarchy.

As for Fontainebleau, Overland did not go to France to attend the executive management course. But he was elevated to the role of Chief Commissioner early last year.