Where hard men are broken: Inside the Victorian legal system’s ‘secret place’

By Chris Vedelago

Comanchero bikie boss Mick Murray outside court earlier this year.Credit:Joe Armao

“Mate, this is very, very simple,” bikie boss Mick Murray snarled to his questioners. “This is set up for people to lag. I’m not a dog. I’m not answering questions. I’m not lagging anyone. So it’s pointless going on.”

This was not how it was supposed to go. Police had been chasing the Comancheros president for years and had never got more than a “no comment” about the club’s involvement in a string of unsolved shootings, bashings and arson attacks. Now they finally had him in front of a secret tribunal where a refusal to cooperate would see him sent to jail.

Here, before the Chief Examiner, in a nondescript three-storey office building near the Queen Victoria Market in North Melbourne, civil rights are temporarily suspended. The right to silence, the right against self-incrimination – the cornerstones of the legal system for more than 200 years – do not apply.

The Office of the Chief Examiner building in North Melbourne.Credit:Jason South

The current Chief Examiner, lawyer Joanne Smith, wields these enormous powers but is virtually unknown to the public. She declined to be interviewed by The Age. Victoria Police has also refused to comment.

Unlike courts, these proceedings are conducted in secret and disclosing any information from a hearing, or even that a particular person has appeared at one, is punishable by up to five years in prison. On legal advice, The Age cannot reveal the identity of any person or the details of any crime that has been investigated by the chief examiner.

The rules mean that everybody forced to appear here must make a decision: stay silent or spill your guts. If you talk, you go free, but you take the risk of being exposed as a snitch, a label with potentially dangerous implications in Victoria where suspected informers have a tendency to end up dead. Those who remain staunch, who refuse to answer questions, face up to five years in jail.

The goal is to break the underworld “code of silence”, a wall of deceit and defiance that protects murderers, drug traffickers and standover men from law enforcement.

But it’s not just criminals and their associates who are summoned to appear before the chief examiner. This office can call anyone who might have information about a target – family members, business associates, lawyers, journalists, accountants, friends and acquaintances.

Gangster Carl Williams in 2004.Credit:Craig Abraham

One witness with no prior criminal history from a “law-abiding background” was sent to jail for six months for failing to answer questions in 2006, according to redacted court records of one prosecution.

Failing to show up is also punishable by up to five years’ jail, as is providing false or misleading information. Disrupting the proceedings can get a difficult subject 12 months in prison.

For Murray, the infamous bikie, the choice was clear. “Mate, I’m not gunna waste anyone’s time. If you’re gunna charge me, give me my charges this morning and that’s it. I’m not answering anything,” he told the chief examiner in 2017.

He spent the next eight months in jail.

A game-changing murder

Mick Murray’s defiance was a rarity. Of the more than 700 people who have been called to appear before the secretive agency since it was created in 2005, he is one of just a handful who have refused to talk.

There is hardly a significant underworld-related murder in the last two decades that hasn’t been the subject of a coercive hearing. Most organised crime groups – bikie clubs, ethnic-based crime gangs such as the Italian mafia and major drug trafficking networks – have been targeted at one time or another.

The power the chief examiner holds is clear, but telling the story of its impact is not so simple because nobody can talk about it – not the police officers who operate within the system, nor the lawyers or criminal targets who appear before it.

“I wanted coercive powers – that is, the authority to compel witnesses, usually in secret, to answer questions and tell no one.”

Veteran barrister Damien Maguire is one of the few who will. He held the position of chief examiner from the inception of the role in the midst of Melbourne’s brutal underworld war in 2005 until 2015.

“I’m not opposed to publicity because people need to know the powers are being used and safeguards are in place,” Maguire told The Age. “It’s important to remember how out of control the gangland wars were. People being murdered in front of their kids at a footy field. The act was just horrific.

“(The chief examiner) would have never been brought in except for those exceptional circumstances.

Melbourne’s underworld war had been raging for five years when drug trafficker Jason Moran and his associate Pasquale Barbaro were gunned down in broad daylight at a children’s footy clinic in Essendon in June 2003.

More than a dozen people had already been killed in the fight for control of the city’s drug trade and nearly all these murders were unsolved. Gangsters like Carl Williams, Tony Mokbel and the Moran family had built sophisticated organised crime networks that made them wealthy and seemingly invulnerable.

“We’d lost control. We didn’t even really understand what was happening on the streets,” said a confidential law enforcement source, who held a senior position at Victoria Police during that time. “There was a complete mismatch between police and the environment we were policing.”

Police examine the van in which Jason Moran and Pasquale Barbaro were murdered.Credit:Paul Harris

The so-called underworld “code of silence” remained solid. After each murder, suspects would refuse to speak, giving a “no comment” interview and demand a lawyer. As long as everyone kept their mouths shut, police were hamstrung.

With the Moran execution – in front of children in the back seat of a minivan – “everything changed”, according to then chief commissioner of police Christine Nixon in her 2012 autobiography, Fair Cop.

“I saw this moment as pivotal, a rare opportunity to gain more financial resources and to boost our armoury of powers,” she wrote. “I wanted coercive powers – that is, the authority to compel witnesses, usually in secret, to answer questions and tell no one.”

The right to silence and the right against self-incrimination have been bedrock legal principles for more than 200 years. What was being proposed was akin to a modern “star chamber” like the English kings used hundreds of years ago to force subjects to answer questions without the right of refusal, an unfettered use of power that was eventually rejected in most western liberal democracies as an abuse of individual rights and freedoms.

“These rights allow organised crime to flourish,” said one police detective, who cannot be identified talking about confidential operations. “They’re able to shield themselves with those rights.”

Under intense public pressure to stop the violence, Victoria Police and the then Bracks Labor government decided to take those traditional rights away.

Cracking the code of silence

The hearing room of the chief examiner has many of the trappings of a traditional courtroom but operates not like a court so much as an inquisition. The bench the chief examiner occupies looks a bit like a judge’s bench, but he or she is not a judge – the role must be filled by a lawyer of at least five years’ experience.

The target of the examination sits in a box seat – it’s referred to as the “dock”, like in a normal courtroom – and their lawyer takes position at a table facing the bench. Unlike a court, though, a defence lawyer cannot object to a line of questioning or provide advice. The rules of evidence do not apply.

Getting called before the chief examiner is a carefully choreographed and gruelling experience. Questions are delivered rapid fire, with the chief examiner briefed by police not just on a subject’s criminal activities but their personal background, marital relationship and children, associations and finances. Any subject is fair game.

The stress can be intense.

Inside the chief examiner’s formal examination room.

One witness had a panic attack and collapsed. Paramedics were sworn to secrecy about the emergency callout. Another witness fled the building during a break, forcing police to hunt them down, according to incident reports filed with the Victorian Inspectorate, which oversees the chief examiner.

Many people fruitlessly plead to be left alone out of fear what might happen if word gets out they cooperated in any way. But hundreds of people have been called into this room and few have been convicted of contempt for refusing to cooperate, suggesting many hardened criminals have been broken, betraying alliances and friendships in return for their freedom.

Just how successful the chief examiner has been at cracking the underworld code of silence – gathering valuable intelligence and underwriting criminal prosecutions – is a closely guarded secret. Its wins are never marked on the public record.

Even when evidence obtained from a coercive hearing is used in criminal trials its origin is obscured in euphemisms. In the trial of one major underworld figure, nearly every witness for the prosecution and the defence had already been grilled before the chief examiner. In a delicate, sometimes absurd dance, the court was told the credibility of some witnesses was questionable because of evidence previously gleaned in “another place”, or a “secret place”.

“Quite often people would see people going into the building … I know it sounds ridiculous but it was laughable really.”

Information from hearings have been used as the evidence in underworld prosecutions. How critical they were in making the cases is unknown.

“There have been victories. Quite dramatic ones – half a dozen successes in major cases involving serious organised crime,” former chief examiner Maguire said. “There are also the small, incremental successes. People shouldn’t focus just on the dramatic results. Every hearing obtains info the police would not otherwise have had.”

This is what proponents of the system, most often the police, point to as the office’s greatest success. It gathers intelligence and answers basic questions of who, what, where, when and how that would normally be met with a “no comment”.

David Jones was the Special Investigations Monitor from 2004-2009 and his job was independent oversight of the chief examiner. He said the office’s value was “difficult to quantify in any specific moment or case” but there was no doubt it worked as intended.

As part of his oversight, Jones reviewed recordings of the coercive hearings and he estimates that at least 95 per cent of those who appeared before the chief examiner ultimately talked.

David Jones, then Special Investigations Monitor, in 2010.Credit:Craig Abraham

‘The worst kept secret in Melbourne’

The only legitimate reason for refusing to answer questions at the office of the chief examiner is if a target can demonstrate that doing so would put them at reasonable risk of harm to their reputation or safety.

But because the chief examiner defines its work as inherently secret, and binds all participants in layers of confidentiality orders, it’s a get-out-of-jail-free card that is very hard to get. Witnesses must prove the existence of a direct, substantiated threat against them at the time they are called to testify. A vague fear that the underworld might find out they were called is simply not enough.

According to some, though, little of what the chief examiner does remains secret – or not for long.

Barrister-turned-informer Nicola Gobbo was queried about the chief examiner’s operations at the Royal Commission into the Management of Police Informants in 2019 and said its attempts at secrecy were “laughable”.

Gobbo had represented some of Melbourne’s most well-known criminal figures at the chief examiner during the gangland wars and, as an accepted underworld confidant, she also knew how much was known on the street about its operations.

Nicola Gobbo and her former client Tony Mokbel.Credit:Nine

The system, she told the royal commission, “wasn’t working” because police officers would deliver the confidential summonses in front of other people, effectively outing them as targets. Also, the chief examiner’s North Melbourne office was located near a restaurant that was a popular haunt for Melbourne’s wise-guys and stickybeaks were able to see almost into the front door.

“Quite often people would see people going into the building or they would see some crook’s car parked out the front of the building for the day and in order to avoid getting a parking ticket the police would stick the Victoria Police laminated card on the front of your car,” Gobbo testified. “I know it sounds ridiculous but it was laughable really.”

Underworld figures often out themselves to associates in a kind of preemptive defence — risking a jail sentence — claiming they were grilled but that they gave up nothing or told lies.

There have also been serious lapses in security, including an incident where the governor of a prison openly discussed a target being taken to the chief examiner in front of 20 other inmates.

“(I am afraid of) the whole jail population, ’cause I just got dragged out of me cell. I’ve come on a special escort and now I’m gunna be taken back….and thrown back in,” according to the court records of one man convicted of contempt for refusing to answer questions.

The chief examiner also holds the power to make evidence given under coercion public for the purposes of criminal prosecutions (just not against the person who gave evidence). This has led to cases where targets have found the transcripts of their hearings released in prosecutions of their associates and enemies.

A senior member of one of the most notorious crime clans in Melbourne was left begging their underworld contemporaries for forgiveness after their transcripts were passed around, according to confidential sources.

In one case, it was argued that there would be no threat to the safety of a witness because members of the underworld would “understand” that someone had been compelled to give evidence.

The chief examiner and Victoria Police have been clear when pushing to release this kind of nominally confidential information that the benefit from solving crimes and securing convictions outweighs any threat to the safety of the informer. The Supreme Court has largely agreed.

The reality that little of what the chief examiner does remains secret was not lost on Mick Murray when the chief examiner lectured the bikie boss in 2017 about his refusal to cooperate.

“Mate, this place is the worst-kept secret in Melbourne. Everyone knows who’s been to the [chief examiner]. You guys can try and keep it a secret. It’s not,” Murray said.

Cracks in the system

The chief examiner has been running for more than 15 years and in all that time has attracted very little public attention or criticism – partly because of its secrecy provisions, partly because nobody cares much for its targets.

“These are hardcore criminals like hitmen, drug dealers and standover men,” one source involved in the process said.

When the chief examiner was created in 2005, it was met with sharp protests from civil libertarians and the wider legal fraternity. Liberty Victoria called it a “standing royal commission” without the checks and balances.

Just three years later, in 2008, Jones was commissioned to conduct a review, and the lack of protest about the office’s powers surprised him.

The chief examiner’s office is non-descript but infamous in the underworld.Credit:Jason South

“I sent copies of our notices seeking submissions to all bodies that had previously shown interest. I got nothing. I gave every opportunity to people who had expressed serious concerns about this,” he said.

Jones stresses that the chief examiner does not act in a vacuum. Investigations begin with the approval of a Supreme Court judge, the chief examiner is a statutorily independent agency despite its close working relationship with the police and its operations are closely reviewed by the Victorian Inspectorate (formerly the Special Investigations Monitor).

“It’s reasonable to draw the conclusion that it was working alright. The fact that it has continued and there’s been no controversy about it would suggest it’s been appropriate legislation,” Jones said.

But one lawyer familiar with the chief examiner said the lack of transparency made it impossible to understand whether the system was delivering legitimate wins against organised crime.

“Does it actually assist in successful prosecutions? What is the value of the intelligence it obtains? Or is this just about getting heads on stakes out the front in North Melbourne?”

The only real pushback on the system appears to be coming from the targets themselves. Court records show a small but growing number of the office’s targets have refused to break, choosing jail time over cooperating.

At least seven people, including two under the age of 18, have been convicted of contempt in the past five years – nearly double the number who refused to cooperate in the entire decade before.

Whether this is a trend or just some kind of anomaly is impossible to tell – the chief examiner and Victoria Police have declined repeated requests for data on its operations.

This intransigence both annoys and delights authorities, depending on their perspective. The Supreme Court judges who are convicting the holdouts have little regard for their defiance, using prison sentences as a way to send a message that the law must be obeyed.

This is one of the key reasons the court chose to break with long-standing tradition and publicly identify Mick Murray as a target of the chief examiner when he was convicted and sentenced.

“It’s very important that contempt power is utilised and publicised, that there are repercussions for refusing to cooperate. If they are half-hearted about the consequences, then word gets out,” Maguire said.

The downside is that publicity cuts both ways. In the underworld, refusing to cooperate is regarded as a badge of honour.

For police, every time a hardcore organised crime figure is jailed for contempt, it has the benefit of taking them off the streets relatively easily.

Mick Murray was jailed for eight months. Another major underworld figure had his prison stint extended for six months, potentially disrupting the activities of a major drug trafficking network.

Meanwhile, not even the lockdown has disrupted the work of the chief examiner. Witnesses continue to be grilled, reputations made and broken. Only now, it’s done at a social distance and COVID-safe.

Even in the secret place there are some laws that can’t be suspended.

Most Viewed in National

Source: Read Full Article