Life on the West Island - Cultural problems

The reports of several recent high-level inquiries have raised serious questions about the West Island’s justice and policing cultures and procedures. These reports strike at the very basis of the belief that we can have confidence that fair and balanced systems exist, which can deliver justice to victims of crime and to the wider community. Most of us expect that these systems will be impartial, evidence-based and disinterested and that consequently the decisions they reach will be legitimate and reasonable. But that is not what has been demonstrated in recent inquiries.

Perhaps the most bizarre is the “Lawyer X” scandal in Victoria. A brief summary of this matter by Tammy Mills was published in The Age in November 2020:

The revelation in March 2019 that a former gangland barrister called Nicola Gobbo was also a police informer was a legal scandal like no other – one that threatened the foundations of the state's criminal justice system and some of Victoria Police's most celebrated convictions. The scandal, unfolding largely in secret and shrouded by suppression orders, took almost a decade to play out until the Director of Public Prosecutions finally decided Ms Gobbo's former clients had a right to know that she might have informed on them, breaching her duties as their lawyer. The police fought for years in the courts to try to keep her name from public disclosure. They took the case all the way to the High Court, which found in December 2018 that Victoria Police’s conduct in using her as a confidential informer was "reprehensible" and had corrupted prosecutions.

These startling revelations resulted in the establishment of the McMurdo Royal Commission. After examining almost 100 witnesses (many of whom were senior police), the Commission reported that the use of Ms Gobbo as a secret informer was a "systemic failure" and said the conduct by some officers could not have happened without "critical failures of leadership and governance in Victoria Police". In her report McMurdo found that Police Commissioner Overland didn't seek legal advice as it may have stopped the flow of information from Gobbo

The Victorian government then appointed High Court justice Geoffrey Nettle to the role of special investigator with responsibility for looking at the potential for disciplinary action and criminal charges for Gobbo and police officers. Earlier this year, Justice Nettle resigned after complaining that the Director of Public Prosecutions had not taken action on any of his recommendations for charging those involved in the scandal. The DPP remarkably claimed that there was no reasonable prospect of obtaining criminal convictions of any police officers. So far, no charges have been laid against any of the police but a significant number of convictions which used the Gobbo evidence have been overturned by the courts and the alleged offenders freed from gaol. Numerous claims for compensation are now under consideration.

Then we turn to the media and political circus surrounding the alleged rape of a female Liberal staffer in the early hours of the morning by a male Liberal staffer in the office of a female Liberal minister in Parliament House, Canberra. The allegations and defence arguments are well known, and a trial of the accused man was aborted after several days of jury consideration of a verdict, when a juror admitted to misconduct.

The DPP made allegations of police malpractice in the handling of the case, including mistreatment of the complainant, and the Territory government convened a special inquiry headed by Walter Sofronoff, former Solicitor-General of Queensland. That inquiry made damning findings against the DPP, but glossed over the police role which was supposedly a major topic of the inquiry. Respected senior journalist Jack Waterford (former editor of The Canberra Times), takes up the story:

The complainant had to hand over her mobile telephones, and police technology retrieved thousands of her communications, much of which was given to the defence. Very little of it was used in court. It is well established that unused material surrendered by discovery in court proceedings cannot be used for other purposes or given to the media. Anyone, particularly any lawyer, involved in putting it into the public domain is guilty of a quite serious contempt of court. But The Australian was given the messages by someone and promptly published some of the exchanges. Whoever leaked it to them was in breach of the law. On reports so far, these plain breaches, (certainly not by DPP Drumgold) of legal, ethical and professional duty do not seem to have exercised the Inquiry.

The publication of this and other sensitive private material about the complainant has excited much comment, but not a lot of investigation. I doubt that the police would approach an investigation with any zeal, even if one effect of the publications has been the creation of yet another reason for victims of sexual assault to avoid going to police. Asking for complainants’ phones to be downloaded, with the material to be given to defence teams, is getting contagious. In a recent rape case in Queensland, a defendant, well-known but unable to be named, asked for orders allowing him to see a download of data from the complainant’s phone.

While the complainant in the Canberra case was subjected to a lengthy series of police interviews and grilled for days in the witness box, the alleged perpetrator gave no evidence and did not have his phone seized or examined. This raised questions about the culture of police in receiving and investigating complaints of rape. As well, Commissioner Sofronoff gave off-the-record briefings to selected media during his inquiry and even handed his own report to some media before it was handed to the government. He is now facing possible prosecution for breaches of the legislation governing public inquiries.

In the wake of these issues, a report of the NSW Bureau of Crime Statistics and Research published this week found that in 95% of reported rapes, police accused alleged victims of lying. Of all reported rapes, less than 15% resulted in court action and only 3% of alleged offenders were found guilty. It also estimated that 80% of female rape victims do not report the crime to police, due to fears about the treatment they will receive there or in the courts.

It is clearly time for a complete change of culture in West Island policing and court systems if the community is to have confidence that justice will be done, and be seen to be done.