I vaguely intend that the evidence I give shall be something like the truth, more or less…

March 4, 2012 6 Comments
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Image: Reuters

This is Tony Mokbel, and for the benefit of everyone not living in Australia and who’ve never heard of him (unless they caught the excellent TV series Underbelly) a brief précis of his Wikipedia entry is that he’s been linked to Melbourne’s gangland wars, people like convicted murderer and more recent murderee Carl Williams, and the meth trade, and was a few years ago successfully extradited from Greece to face drug charges in the Victorian Supreme Court. In fact in April last year he pleaded guilty to three charges, as reported by the Melbourne Herald Sun.

In the Supreme Court this Monday Mokbel admitted his guilt to trafficking a large commercial quantity of methylamphetamine between July 2006 and June 2007.

He also admitted trafficking a large commercial quantity of ecstasy between February and August 2005.

Mokbel pleaded guilty to a further charge of urging an undercover officer to commit the offence of importing ecstasy into Australia.

The court heard all other matters (which had originally included a murder charge – AE) against Mokbel will be discontinued.

So there you have it – or, as you’ll see shortly, there you would have had it – and you’d be forgiven for thinking that this is going to be one of those “If we stopped worrying about what substances people put in their bodies and legalised drugs we wouldn’t have as many problems with the drugs trade as we do” type posts like I did in November. Not that I’ve changed my mind about that because I haven’t, but that isn’t what this is about. Instead this is another one of those judicial system posts as Tony Mokbel’s story has an interesting epilogue.

A few months ago a Victorian police officer in an unrelated pre-trial hearing admitted that he had never once in his 25 year career either sworn an oath on a Bible or made an affirmation when preparing an affidavit, and instead had simply signed it and carried on. Big deal? For most of us it may not seem so but the fact is that in law an unsworn or improperly sworn affidavit is simply invalid, and since the affidavit for the search warrant in was invalid then, according to the magistrate, so was the warrant itself. The police had trespassed, the magistrate found, and the case was thrown out.

The larger problem, however, was that it soon became clear that this wasn’t a one off with a single officer not preparing affidavits for warrants properly, but was actually the norm for the Victoria Police and hundreds, possibly thousands, of cases potentially could be affected.

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And it turned out that it was indeed thousands of cases, including, as you’ve probably already guessed, that of Tony Mokbel, who wasted little time in asking to change his guilty plea to not guilty.

Veteran police officers with more than 30 years’ experience have admitted to inadvertently neglecting to follow proper procedures when obtaining search warrants during Victoria Police’s decade-long investigations into drug boss Tony Mokbel.

At Mokbel’s change of plea application in Victoria’s Supreme Court yesterday, retired detective inspector Jim O’Brien apologised for not swearing or witnessing the oath in relation to 10 Mokbel search warrant affidavits.

[...]

… [A]fter senior police admitted in an unrelated case that they had failed to swear affidavits on the Bible or by affirmation as legally required, Mokbel sought to change his plea to not guilty. His lawyers have since discovered that some of the warrants used to gather evidence against him had not been properly sworn by police, or were missing dates, locations and other vital details.

Mr O’Brien – who was the head of the Purana gangland taskforce when he retired after 30 years with Victoria Police in 2007 – said not swearing documents on oath was an ”accepted practice” at the crime department when he returned to work there in 2001.

[...]

Detective Senior Sergeant Alan Paxton, an officer of 35 years, testified that he remembered at least one occasion when he had not properly sworn a Mokbel affidavit.

This might also have happened on other occasions, as he was under ”extreme pressure and demands” at Purana as the only detective senior sergeant who had the responsibility of monitoring the progress of multiple Mokbel probes, he said.

Of the 10 affidavits he was involved in, he said three were definitely sworn according to law.

Read that last sentence again just in case you, like me, misread it the first time and thought they were conceding that nearly a third of the affidavits were iffy. That would be pretty bad as it is, but since it’s in fact saying that fewer than a third were actually done correctly it’s downright bloody appalling. That it involved an investigation into such serious offences makes the failure to follow procedure worse still, and that as a result an accused who had already put his hands up to three charges was given leave to apply to change his plea can hardly be seen as the Victorian Police’s finest hour.

And if you think that’s bad just you wait, because this I haven’t quite got to the two parts that really worry me. Last Thursday Tony Mokbel received the news that his application to change his plea to not guilty had been rejected, Justice Simon Whelan ruling that Mokbel had failed to prove that a miscarriage of justice had or would occur.

Justice Whelan found several affidavits were not correctly sworn and that their evidence was invalid.

He said he had not found any of the police involved to have been dishonest or to have been deliberately misleading in the way they had acted at the time or in the evidence they gave before him.

He said it was desirable and necessary to rely on evidence that was admissible and found that although the warrants were invalid the evidence was admissable.

So the warrants are invalid but that makes no difference? While I, as a relative newcomer to the state, don’t want to argue fine points of Victorian law with a learned judge at this point I have to say, “Seriously, Justice Whelan, what the fuck? What the actual fuck?”

If correctly reported this seems to be saying that as long as police don’t disregard legal procedure on purpose then evidence obtained during illegal searches is just fine, negligence or ineptitude excusing what malice or corruption would still (and we should hope will always) render inadmissible. Never mind that this kind of dotting and crossing of legal ‘i’s and ‘t’s is, so I’ve always been led to believe, really there to protect the law abiding majority from malfeasance and shields criminals only incidentally, an undesirable but necessary side effect of the far more desirable need to keep innocents from being imprisoned. The “Werl, we never meant no ‘arm by it, honest, yeronner” defence is now accepted when offered by police officers conducting unintentionally illegal searches, but since I don’t see anything to say that it only applies to Tony Mokbel I’m not sure it should just be him losing sleep over it.

Secondly, and even more worryingly, is the reaction by Victoria’s Liberal (in name only) government. Having the police screw things up so badly is clearly not acceptable, but rather than make the police do it right in future or even change the law so that an officer’s signature on an affidavit is as acceptable as swearing on an original Gutenberg the government has sold its soul to the legal Satan of creating law that travels backwards in time.

More than 6000 court cases compromised because Victoria Police failed to properly swear or affirm affidavits will be rescued by retrospective legislation.

Victorian Attorney-General Robert Clark will introduce the legislation today to prevent the collapse of the cases after police were exposed, having for years bungled the handling of affidavits in criminal investigations.

Back in January I wrote about Britain’s use of retrospective legal change to nail the killers of Stephen Lawrence, the conviction of those two men for that stolen life apparently being considered more important than the other sixty million or so people retaining the ancient right of double jeopardy protection. It was one of those moments where sadness at another such loss for Britons was mixed with relief at no longer living there, so it goes without saying that it gives me the shits to see something similar happening here. I no more hold a brief for Tony Mokbel than I do the convicted-at-all-costs killers of Stephen Lawrence, but I feel that being able to pass retrospective legislation is one of the most dangerous powers a state can grant itself. Bad enough when it’s used to excuse cut corners but the real danger is the temptation to jail undesirables who aren’t breaking the law by making what’s legal now illegal yesterday, and the instant the state can do this everyone is potentially guilty of anything the government decides to criminalise in the future.

But even the former has its dangers. At the time I was focussed on the point of double jeopardy and how this could mean successfully defending yourself against an improperly brought charge only to lose when changed rules allowed the police and CPS another go.

Let’s say you’d been done for speeding and decided to fight the ticket in court, and you discovered that the device the police caught you on was supposed to be calibrated daily but in fact they’d only been doing it once a week. As a result you’re found not guilty and sent on your way. Now imagine that the law is changed so that the speed device was now allowed to be calibrated once a month and that speeding motorists who’d been acquitted by a court once could be dragged back in again, except this time they wouldn’t have a leg to stand on. Ridiculous? Why? The law allowing the criminal justice system a second bite for murderers sets the precedent, and it’s naive to think that eventually there won’t be calls for it to be extended to those acquitted of kidnap or rape or drug dealing… and if those then why not robbery, burglary, assault, fraud, possession and even motoring offences?

What I didn’t stress in that example was that this also would make use of retrospective legislation that doesn’t just permit the police to do something in a way they couldn’t previously but actually made valid all those occasions in the past when they’d done it incorrectly, which is of course exactly what’s happening here in Victoria. I won’t say that this is all part of a convict-Mokbel-at-any-cost thing, but I can’t help but feel that having got the guy to the point of pleading guilty there was no way in hell the powers that be wanted him to escape jail (although he’s actually been on remand all this time anyway).

Not that it’s over yet because Mokbel’s lawyer claims he’s still got another shot in the locker.

Peter Faris QC, Mokbel’s lawyer, told a hastily arranged hearing of the Supreme Court this afternoon that it appeared the planned new law breached Victoria’s charter of human rights and responsibilities.

[...]

“I believe it (the legislation) is unconstitutional, and if he advises me to challenge it I’ll challenge it,” Mr Faris said.

I’m not so sure about that. Partly because the bit in the Charter about retrospective legislation prohibits criminalising people for something that was legal when they were doing it – which we should all be bloody thankful for and careful to hang on to because you can bet someone somewhere would like to take it away – and doesn’t mention anything about retrospectively permitting the police to do things in a way which was previously not legal. Partly also because this wouldn’t be the first time the police have been allowed to do something despite the Charter saying they aren’t. And partly because I really do have the feeling that Tony Mokbel’s conviction is almost a matter of policy.

I imagine he’ll challenge the searches in court no matter what happens but all the same I hope Peter Faris is right and succeeds in getting his client’s plea changed. For all I know Tony Mokbel may be any or all of the things he’s been accused of, but there’s more than just his fate at stake here. In this kind of post I tend to quote Bolt’s Thomas More at this point and say that I too would give the Devil himself the benefit of law if only for my own safety’s sake, and I’m not convinced that Mokbel – who despite everything remains innocent ’til proven guilty – has been given the benefit of law.

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6 Responses to I vaguely intend that the evidence I give shall be something like the truth, more or less…

  1. Andrew Duffin
    March 4, 2012 at 8:30 am

    By coincidence there was a little piece in yesterday’s Telegraph which said that “although Mr. Bad man had not been convicted of any offence, it was obvious he was a bad lot and the judge made an order confiscating his house”.

    I paraphrase, but only slightly: he had not been convicted (or even charge afaik) of anything, yet his property was taken away.

    And nobody seems to see anything wrong with this; I suppose they think it will only ever happen to other people.

    Chilling.

    • March 4, 2012 at 8:54 am

      That’s the ‘Teflon Don’, isn’t it? And the POCA 2002.

      According to the ‘Mail’:

      “He claims to be the managing director of a legitimate business and has accused detectives of running a corrupt campaign to get him behind bars.”

      Corrupt police? Well, I never!

  2. March 4, 2012 at 8:52 am

    “He said he had not found any of the police involved to have been dishonest or to have been deliberately misleading…”

    Just stunningly incompetent at their jobs? Oh, well, that’s OK then..

    • March 4, 2012 at 9:50 am

      Today it’s okay. Tomorrow it’s part of their job description.

  3. James Strong
    March 4, 2012 at 3:09 pm

    It is only by giving people like this the benefit of law that we know that we will enjoy the benefit of law.

    All law-abiding citizens should be very afraid of retroactive legislation.

    • March 5, 2012 at 12:44 am

      Nutshell. In it. Drives me round the bend that so many people are happy to see these rules bent to get at villains and never give a thought to the protections that they’re allowing to be stripped away from themselves in the process.

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