Deadwood Justice
Paul Collits has worked in regional economic development analysis, policy and practice for over 20 years, in universities, State parliament, local and State government and in consulting. His longer career of 30 years has also included working in research and analysis in government at national level, industry and politics. This article, considered too hot for publication by some, is explosive. It gives the background to the most shocking episode in Australia in my lifetime – to Australia’s greatest case of justice miscarried.
The promos for Victorian Tourism and Destination Melbourne told us with considerable joy and pride that Roger Federer and Tiger Woods were visiting the southernmost mainland capital this summer.
So was one Ken Jones, who was visiting Victoria from the United Kingdom and not likely to be sighted anywhere near a tennis court or golf course. Jones’ visit is likely to have caused much more of a stir than that of the other two.
Jones is Sir Ken Jones QPM, decorated former copper of international reputation and broadly recognised to be beyond reproach. His visit to the once great State of Victoria is occasioned by the Royal Commission into the Management of Police Informants currently being conducted under the watchful gaze of Margaret McMurdo AC. But Sir Ken used his visit to air a few thoughts on broader Victorian police matters beyond the remit of the Royal Commission, and they are of considerable public interest.
It hasn’t been a good couple of months for Australian police forces. Sir Ken’s testimony before the Commission is merely one of four major embarrassments to our constabulary, all of which, taken together, suggest major deficits at the core of our law enforcement system. And, of course, there is a well-known Cardinal banged up in gaol for an alleged crime which many informed and unbiased people think he did not commit, who might well be interested in what has recently emerged in relation to the credibility of his pursuers.
The Eastman Case
First there was the botched prosecution and false imprisonment – for nearly 20 years – of former quirky Treasury official David Eastman for the murder of Colin Winchester coming home to bite the Australian Federal Police rather savagely in October. All up, the whole Winchester/Eastman frolic has cost the ACT taxpayer over $30m on one estimate. Colin Winchester was 2iC in the AFP, was known to be actively on the hunt for mafia criminals and was clinically murdered in January 1989.
It shouldn’t be forgotten that the AFP managed simultaneously to convict the wrong guy AND to not apprehend a cop killer. David Eastman was many things – he was once reportedly described by John Stone of The Treasury as a “very sick man” – but a coldly clinical murderer?
Nailing Eastman for the Winchester crime never passed the pub test, despite forensic evidence considered damning at the time and brought to bear at trial, since found to be decidedly dodgy – clearly of the kind that was so important in wrongly convicting Lindy Chamberlain. Then there is the suggestion of a biased forensic expert in the original trial. The ruthless pursuit of Eastman by the AFP was indeed forensic, obsessively so.
Eastman’s trial was not without humour. As recorded by Sam Vincent in The Monthly in 2018:
For much of the trial he represented himself, using the platform to abuse the prosecutor and the judge. (One day, Acting Justice Kenneth Carruthers asked if the accused had any questions of a police witness. “Yes,” said Eastman, “I wish to ask your Honour why you are such a lying c…” His Honour, who had been briefed on Eastman’s paranoid personality disorder, replied: “I will treat that as a no”).
Sam Vincent might almost have been talking about George Pell when he made the following observations about Eastman:
Could it be that Eastman, who spent so much time making a public menace of himself, forfeited his civic rights to a fair trial, to the presumption of innocence, to liberty as a result? Police commander Ric Ninness told the coroner he believed Eastman’s “type” didn’t deserve the right to silence afforded to every citizen.
His type? At the time of his murder conviction, David Eastman had accrued 128 charges of making threatening phone calls; as part of his bail conditions for this retrial, he hasn’t been allowed to approach 200 individuals. Fear and doubt are old bedfellows, but what about prejudice and certainty? Because while 100 jurors are usually empanelled for cases in the ACT Supreme Court, for this one they drew on 500. When asked to raise their hand if they had heard of Eastman, the vast majority were disqualified. The 16 chosen, of which 12 make the verdict, were either living under a rock in 1995, living elsewhere or not yet living. It may prove decisive.
Eastman’s “type”? Pell’s “type”? A then triumphant Louise Milligan tweeted something along these lines when she was almost salivating with excitement following Pell’s conviction, referring to the comeuppance for one used to lecturing other people about morality. Screw you, bastard. I am dead certain there was more than a little of the Ric Ninness among the get Pell team within VicPol. And like Eastman, Pell had few vigorous and persistently loud public supporters banging drums for the accused, certainly not in the mainstream media.
On the dearth of Pell fans in the public square, and the multitude of enemies, the Currency Lad has noted:
The enemies of Cardinal George Pell had that sort of resolve and that sort of luck. A DPP who kept indulging preposterous briefs of “evidence,” a Pell-hating police force now regarded as the most corrupt in the country, a public broadcaster with a years-simmering hatred of the Cardinal, a second jury of dupable vigilantes eager to convict the self-same but, by then, notorious George Pell and an appeals court which this morning raised preposterous hearsay to the level of DNA and CCTV.
An article in the Sydney Morning Herald in 2003 stated, in relation to the unfortunate Eastman:
There has long been considerable disquiet about his conviction in what amounted to a very circumstantial case. The Federal Police pursued him relentlessly and tended to discount the other area of suspicion – Italian drug cultivators and dealers.
The well-based belief of many who followed the Winchester case was that if the police had gone down the latter path it would have opened up too much unpleasantness for senior officers of the time.
According to His Honour Justice Brian Martin (the Eastman retrial judge):
A substantial miscarriage of justice occurred in the applicant’s trial. The applicant did not receive a fair trial according to law. He was denied a fair chance of acquittal. The issue of guilt was determined on the basis of deeply flawed forensic evidence in circumstances where the applicant was denied procedural fairness in respect of a fundamental feature of the trial process concerned with disclosure by the prosecution of all relevant material. As a consequence of the substantial miscarriage of justice, the applicant has been in custody for almost 19 years. The miscarriage of justice was such that in ordinary circumstances a court of criminal appeal hearing an appeal against conviction soon after the conviction would allow the appeal and order a retrial. A retrial is not feasible and would not be fair. While I am fairly certain the applicant is guilty of the murder of the deceased, a nagging doubt remains. The case against the applicant based on the admissible and properly tested evidence is not overwhelming; it is properly described as a strong circumstantial case.
(“A nagging doubt remains”. Ringing Pell bells, anyone?)
Notwithstanding the Judge’s oddly expressed personal view of Eastman’s probable guilt, Blind Freddy could see that Winchester’s pursuit of Calabrian drug lords and – perhaps – their friends within the AFP, is more than likely to have led to Winchester’s clearly professional execution in leafy Canberra suburbia. Not just Blind Freddy, but investigative journalists like Brian Toohey, who with colleagues Roderick Campbell and William Pinwill unpacked the whole Winchester “scandal” back in the 1990s.
According to Toohey et al:
There have been allegations of police corruption … the disturbing background to police entanglement in marijuana growing … stories of problems with crucial investigative techniques – and a questionable (“cavalier”) attitude to individual rights.
David Eastman, now an ailing 74, is $7 million dollars richer but he won’t get his life back. His trial in 1995 followed three years of police harassment in Canberra. Eastman was a victim of the AFP’s obsession with getting a conviction at all costs and protecting their own, rather than seeking the truth, something that Sir Ken Jones also found to be the case with VicPol. Coincidentally (or not), two of VicPol’s recent commissioners – Simon Overland and Graham Ashton – were recruited from the “elite” AFP and brought to Melbourne.
The Appellate Court Judgement in the Pell Case
Second, VicPol (and the Victorian Court of Appeal, of course) were humiliated , first by a criminal law judge called Mark Weinberg then by the High Court of Australia, when the Court agreed, against the odds in many ways, to hear what will be the final George Pell appeal. The truly bizarre and very dangerous judgement of the majority of the Victorian Court of Appeal has been called many things by learned critics. Here are a few tasters:
“There was no supporting evidence of any kind from any other witness. Indeed, there was no supporting evidence of any kind at all. These convictions were based upon the jury’s assessment of the complainant as a witness, and nothing more.” (Mark Weinberg)
“Capricious”; “feeble”; “mere assertion”; “abrogating their responsibility”; “minimalist approach to objective evidence” (Christopher Friel)
“Reading the judgment, I had the strong impression that the court was biased against the Cardinal, for at times it went far beyond saying that the testimony of his accuser was not such that it could be dismissed out of hand, but that the accuser was a credible and even a truthful witness. In other words, it was in effect finding Pell guilty a second time, which was not its remit.” (Anthony Daniels)
“Unorthodox reasoning”; “circular reasoning”; “erroneous judicial method” (Bret Walker)
“a shocking miscarriage of justice” (Chris Merritt)
“Their experience of criminal law is starkly limited” (Anthony Smith)
“the onus of proof has been reversed …the worst I have ever seen is The Queen v Pell. It curdled my stomach” (Anthony Smith)
“Australian justice is now on trial” (George Weigel)
“this astonishing, indeed incomprehensible, decision calls into the gravest doubt the quality of justice in Australia” (George Weigel)
“The judges who concurred in a grotesque appellate decision confirming the result of a grotesque legal farce may or may not believe in a final judgment. But they certainly have other judgments to worry about. For they have confirmed that a once-admirable part of the Anglosphere known for independent thinking has become something quite ignoble, even sinister.” (George Weigel)
“Their credibility is now on the line.” (Andrew Bolt)
“… how very unsatisfactory the Judgment is in discharging its primary responsibility to apply the law coherently to the case before the court.” (John Finnis)
“Their common sense is obviously poor and their practical judgment, worse.” (Gerard Bradley)
These few comments, from far and wide, amount to a mere drop in the bucket (about a tenth of the total number of commentaries I have been able to collate) of the torrents of criticism the Appellate Judges have been forced to weather.
Justices Ferguson and Maxwell must get a very queasy feeling when they read these and other brutal eviscerations of their legal acumen, if indeed they read widely. Yet while this unrelenting blizzard of criticism was clearly directed at judges deemed by their legal peers and sundry other informed observers clearly to be not remotely up to the task, it is VicPol that must have the greater fear of egg-on-face. For it is VicPol’s equally unrelenting pursuit of Pell with deadly force over five years (2013-18) that is ultimately in the dock here. If the High Court sees its way to clear the Cardinal, it will be Operation Tethering with its very large gun toting team of crack detectives preying on an innocent man, much in the way that David Eastman was picked out as the AFP’s quarry in the Winchester case, that will eventually come under the most severe questioning from every investigative journalist worth his salt. At least there was a clearly established crime in the Winchester/Eastman affair.
The VicPol Emails
Third, and totally out of left field, it emerged in evidence before the McMurdo Royal Commission that the internal VicPol media machine that is, alas, so central to the whole contemporary policing operation in Victoria, was discussing openly the ways in which George Pell might be useful to keeping the media hounds at bay over the then emerging Gobbo scandal. One Charlie Morton is the star player here, in a series of emails from April 2014 concerned at the prospects of a potential Royal Commission into Lawyer X, just then beginning to be advocated by radio personality Neil Mitchell.
(Coincidentally, April 2014 is the same month that The Choirboy (the second alleged victim) in the Pell case died of a drug overdose, thus opening the way for The Kid to subsequently pursue his solitary allegations against Pell, free in the knowledge they would not be contested by his old buddy).
This is from Morton, a PR flunkey in VicPol media empire, to the Commissioner:
None of the other journos have got anything different or are prepared to use it.
The Pell stuff is coming tomorrow and will knock this way off the front page.
Unless there are some serious appeals from convicted crims which might get up as a result of this, then I can’t see this continuing with the same level of profile.
There will be more, but I suspect we can weather it.”
It is not clear what the “Pell stuff” was, perhaps something relating to Pell’s evidence before that other Royal Commission. In any event, and given the High Court challenge now confronting VicPol, the release of these emails is highly suggestive of a “get Pell” culture within VicPol, of a clear internal understanding of how question marks over Pell might be useful to VicPol in an ongoing way and of an absurdly honed culture of self-preservation and media management within the Victorian police service. We now know just how much dosh and human resources VicPol was willing to expend in order to keep Gobbo off the front page (see below). We also now know how much utterly contemptible strategic leaking from VicPol went on in the Pell case, with certainty in the case of Lucie Morris Marr and in all likelihood in the case of Louise Milligan, despite her persistent denials. They each got a book out of VicPol’s efforts – remember Julia Yost’s overly generous description of the Milligan book as “semi-literate police talking points” – and, as a result of the Milligan book above all else, VicPol got their man. Both sides were winners.
The timing of the emails that mention Pell, linked as it is to the death of The Choirboy, is curious but probably not more. How indeed could VicPol have known that a week later a critical event in the whole Pell saga would occur, an event that would enable the rest of the grim story to unfold?
What the emails show most of all, perhaps, is the degree to which corporatisation, in lethal combination with the attendant politicisation that occurs in public institutions so corporatised, can strangle traditional civil service organisations and what used to be a culture of service and independent advice. Rather, such corporatisation brings out the worst, self-serving behaviour, combined withsubservience to mediocre, butt protecting ministers and a cover-up mentality that one can imagine.
The Ken Jones Testimony
Fourth, let us return to Sir Ken Jones. His recent testimony is the proverbial icing on the 2019 police bashing cake. Sir Ken’s appearance may, one may hope, indeed be the game breaker that will eventually cause some or other Victorian government, against the odds, to hose out the stables and start afresh with policing in that state.
As the Lawyer X Royal Commission thunders on, new evidence is emerging of VicPol’s astonishing methods of keeping the peace, pursuing criminals and securing justice for the innocent in Victoria.
Sir Ken Jones certainly can capture the essence of things with a colourful epithet or seven. But these are epithets with that ring of truth that comes when someone confirms what we deep down already know to be the case. Here are some of them offered to the Royal Commission:
- Toxic culture
- Absolute loyalty to the boss
- “Industrial” subversion of the judicial system
- Cooking crime statistics for political reasons
- The OPI was a “guard dog” for VicPol, not a “watchdog”
- Paying of a witness (Gobbo) not to testify (against Paul Dale)
- Use of the Office of Police Integrity (OPI) to end the careers of rivals to Overland
- The routine suppression of exculpatory material by OPI and VicPol
- Petty personal sensitivities
- “dark corners”
- Routine phone tapping of police officers
You get the idea. One might think this tirade was merely the articulation of career grief from a career loser. Oh no. And VicPol is fighting every inch of the way to have Sir Ken’s more general critique of the culture and operations of VicPol hidden forever from the public. Whatever else VicPol is and isn’t good at, it is world class in the matter of self-protection.
Sir Ken’s tenure as Deputy Police Commissioner in Victoria was from 2009 to 2011, spanning the change of government from Brumby to Baillieu.
Sir Ken’s entirely plausible charge that VicPol became a victim of the modish corporatist “loyalty to the boss” mentality so redolent of today’s civil services is central to his overall critique of VicPol. It would be no surprise, then, if such a mentality was at its strongest when applied to the Commissioner/Minister relationship. This is especially the case in the era of short term contracts, and was supercharged in the case of VicPol given its mid-to-late 2000s pursuit of lawless, rampant, no-holds-barred, gangland drugs barons, and more recently by the racially/religiously sensitive issue of “gangs of colour” causing havoc across Melbourne’s suburbs.
The toxic culture also extends to protecting one’s mates (bosses included) within the force at the expense of targeted “enemies within”. VicPol does witch hunts exceedingly well. Setting aside the pursuit of Ken Jones (and George Pell), just look at the case of former Victorian detective Paul Dale. Paul Dale’s book defending his own innocence and reputation (Disgraced? The Cop at the Centre of Melbourne Gangland Wars) provides, among much else, harrowing evidence of the extent to which VicPol’s sheer vindictiveness can go, in its relentless pursuit of one retired copper in country Victoria who dared to be seen in the company of Paul Dale. That copper’s name is Gary Thayer.
Dale was accused of commissioning the Hodson family murders in 2004, not to mention his alleged involvement in the killing of one Carl Williams in 2010.
Nicola Gobbo was one of Dale’s lawyers. She was also (of course) to be a prosecution witness in one of the several cases brought against Dale. According to Dale’s book – and who would dispute it – Gobbo was paid expenses by VicPol that included $43,000 in allowances, 38 flights in ten months (business class, of course – once you have flown business class, who can go back?), $22,300 in car hire, $2,157 for cabs, $133 for a parking fine, body corporate fees ($2,177), concert tickets ($344) and Victoria Racing Club membership ($380). VicPol also kindly bought Nicola flowers on her birthday ($89.95). A nice bunch, clearly.
Here is Dale on Simon Overland’s direct role in the Lawyer X fiasco:
Overland played a leading role in my persecution. He authorised million-dollar deals and made it clear to Nicola Gobbo that money was no object, as long as she came on board and helped the Petra Taskforce nail me. George Williams [Carl’s father] was offered a similar deal with a tax write-off. Both sued Victoria Police after the agreements weren’t honoured.
Goodness.
After all this, Gobbo didn’t give evidence against Dale, citing – in the manner of Simon Overland following his resignation recently from Whittlesea Council – concern for her “health”. The whole Lawyer X farrago is quite simply gobbo-smacking. As Sir Ken Jones described it, it started out “highly irregular and unethical” only to end up “illegal and chaotic”. Such a description is being unintentionally generous, I would think.
According to Paul Dale’s mother Jenny, Christine Nixon (former Victoria Police Commissioner) and Overland “used the media all the time”. This is all part of the rock star CEO complex to which VicPol has clearly not been immune. More importantly, Jenny Dale’s spot-on assessment of VicPol’s leadership reveals the toxic fraternal (incestuous?) relationships between today’s media unit-led public entities and the mainstream media. While the media can help police forces to catch criminals, and has always done so, it can also act as a non-objective extension of VicPol’s public relations arm, by not subjecting the force to proper, rigorous investigative scrutiny. VicPol has been a media player, cannily playing all the games par excellence, alternately leaking selectively and then covering up. One only has to consider the Pell case to have this suspicion confirmed. After all, this is the same lot who were routinely tipping off the media during the multiple arrest processes relating to Paul Dale.
No generalised account of the deep state in Australia should ever avoid using the state of Victoria as a prime case study.
What the Margaret McMurdo Royal Commission shows is that every single pursuit of alleged criminals by VicPol, not just those related to the Lawyer X abomination of justice, must come under the most severe scrutiny. The things that Victorian police and their commanders have been shown to have been willing to do brings every last criminal investigation in Victoria into question. Including, perhaps especially, Operation Tethering.
For his trouble, back in 2011, Sir Ken Jones received death threats to himself and his family. Lasers trained on chests, that sort of thing. The State Ombudsman of the day told Jones he knew of OPI (Office of Police Integrity) plans to burgle his home and interfere with his computer! He was hounded out of the service. Remember who was 2iC at the OPI. The man now in charge of the circus.
Sir Ken Jones was the proverbial cleanskin cop in VicPol, an organisation that has often appeared to be little more than a posse of wild west type cowboys under the Bracks, Brumby and (especially) the Andrews Governments. Deadwood justice indeed – collegial yet very, very rough. At least the OPI no longer exists, having been disbanded by the Baillieu Government in 2013. The system has (in theory) also been bolstered by the creation of the Independent Bureau Against Corruption (IBAC), which the then Government used to replace the OPI. Mind you, IBAC went decidedly limp when it found that Graham Ashton had not “intended to” breach Commonwealth telecommunications laws when he provided telephone tapes to Overland in relation to Noel Ashby and Paul Mullett. (The pursuit by the OPI of targets within the force didn’t end with Jones and Dale, not by a long shot. Ashby and Mullett were accused of leaking in the mid-2000s but subsequently cleared. No such vigour – or rigour – was applied to the Pell related leaks a decade later).
Sir Ken Jones said his ousting from the force was an attempt to silence and discredit the concerns he had raised about the use of Informer 3838, the manipulation of crime statistics, cost-blow outs and what he described as ‘‘distasteful’’ practices within the top ranks of Victoria Police.
He was told his removal was greeted with ‘‘the chief and my colleagues indulging in some unprofessional high-five gestures’’ inside Victoria Police headquarters.
He summed up the culture of VicPol thus:
‘‘In any public service such unquestioning loyalty to hierarchy is toxic and dysfunctional, it sustains and nurtures corrupt cultures and cover ups. This is especially true in law enforcement.”
As noted above, Sir Ken Jones made special mention of the very ironically named OPI (Office of Police Integrity). Inhis evidence before the Commission, he stated:
“I had tried to get the OPI interested when I raised concerns in the broadest sense with His Honour Michael Strong … we had a conversation in which I was somewhat guarded as I didn’t wholly trust the OPI.”
Sir Ken said in his statement the meeting was not a success.
‘‘Mr Strong did not react well. He seemed somewhat indignant with me and paraphrased what I said as an attack on the chief, which was not the case. He stood up and showed me the door.”
The same Michael Strong has also been a County Court Judge in Victoria, reinforcing the sense one has, post-Pell, of the extremely tight linkages across the various arms of justice and law enforcement in Victoria.
The Age has noted, in relation to the unintentionally hilarious appointment in 2018 of Strong to a new justice role with the Andrews Government:
“Former Office of Police Integrity director Michael Strong is expected to become Victoria’s next Public Interest Monitor, responsible for preventing law enforcement agencies from abusing covert and coercive powers, such as phone-tapping.”
“Privacy advocates are also expected to be concerned about Mr Strong’s suitability for the role, when the former OPI, under his watch, was accused of abusing its powers, including the widespread use of phone taps and coercive questioning.”
Former Liberal Party operative Tony Nutt suggested (correctly in my view) that the former OPI acted like “the Stasi”, a claim Strong said was “an outrageous slur”. Well, he would say that. Cops dobbing in cops? Intrusive surveillance? Pursuit at all costs? Pre-judging guilt? Never! Others, less kind and perhaps more objective than Strong, have called the OPI a “force within a force” with a culture of “violence and cover-up”.
The Age again notes in relation to Strong’s appointment:
“The Age can reveal the appointment of Mr Strong was made by the Andrews government in January, without any public statement about his ascension to the important integrity role that includes remuneration of almost $500,000.”
I assume this figure is not a misprint involving 0’s that should not be there. A nice little earner indeed in one’s later years.
The Age noted at the time of the hushed-up appointment:
“Mr Mullett on Sunday described the selection of Mr Strong as the new Public Interest Monitor as “like putting Dracula in charge of the blood bank”.
Sir Ken Jones was cleared of any wrongdoing by an independently appointed review under Murray Kellam. Kellam was sympathetic to Jones’ charge that the OPI was given to assuming guilt first – indeed pre-judging – then pursuing the target. Again – does this not sound very familiar? It is, indeed, the precise methodology used by VicPol in Operation Tethering, conducted on Ashton’s watch just as the OPI outrages were. A Cardinal must be shaking his head in disbelief. What a place to be tangling with the law, where frontier justice reigns!
Where to from here?
On all the evidence, VicPol clearly remains a festy, rancid swamp of incompetence, ersatz corporatisation, obsession with public relations, politicisation, cover-ups, reputation protection at all costs, the wasteful use of resources (again at industrial level, and I have not even mentioned the $100m IT blunder),routine illegality and spite. There are many different definitions of corruption, and they do not necessarily involve simply being “on the take”. Placing one’s own reputation and career longevity and the routine cover-up of “industrial scale” wrongdoing above upholding the law and protecting the innocent is, surely, morally equivalent to accepting money for favours to criminals, whether done by individual officers or corporately.
As the High Court ponders the Pell case, we must all be wondering, given the events of these past months, whither policing in this fair land and, in particular, south of the Murray? The deep south. With a very deep state.
The members of Team Deadwood might well argue that they are involved in “noble cause corruption” (as suggested in the book Bent Uncensored: Australia’s Crooked Cops, written by James Morton and Susanna Lobez). Well, the long-suffering citizens of Victoria (and their friends in Canberra reeling at the final chapter of the Eastman saga) might just settle for some good old honest cop policing.
Time, indeed, well past time, to drain this particular swamp. In the meantime, thank God for Margaret McMurdo.
Paul Collits
17 December 2019
Editor’s Note:
Daniel Andrews has been the Labor Premier of Victoria since 2014, around the time the ‘Get Pell’ campaign got going. Recently he publicly denounced former Prime Minister Tony Abbot – with barely controllably anger – for visiting Cardinal Pell in jail. Andrews’ justice arrangements keeps Cardinal Pell in solitary confinement. One can’t fathom the workings of this man’s mind.
