Police will be trusted to decide whether their own conduct was illegal during a secret prison bugging program, with prosecutors saying they will only reassess cases the force flags for review.
The Office of Public Prosecutions (OPP) has revealed Victoria Police is currently reviewing the evidence it collected under the controversial program, where high-security prisons were bugged without a valid warrant for close to two decades.
At least 115 permanent devices were fitted in prisons between 2000 and 2018, according to a report that Integrity Oversight Victoria, a watchdog monitoring some of the state's most powerful anti-corruption bodies, released last month.
The OPP said Victoria Police would "make disclosures where necessary".
"If it is determined that this evidence has been obtained unlawfully, the OPP will review any potentially affected prosecutions and take all necessary steps to ensure just outcomes," a spokeswoman said.
But the move by prosecutors has been met with derision from some of Melbourne's most high-profile criminal defence lawyers, many who were on the judicial frontlines during the city's bloody gangland war.
Victoria Police has maintained it was acting in good faith, obtained warrants to turn on the bugs and claimed it never used conversations protected by client-lawyer confidentiality.
"Victoria Police is confident all evidence obtained using these devices remain admissible in completed and pending court matters," a spokesman said.
Revelations confirm some lawyers' long-held suspicions
While some lawyers the ABC spoke to were stunned when the controversial program came to light, others had long suspected they were being monitored in the state's high-security prisons.
"I've certainly been the subject of it," Rob Stary, a former magistrate and criminal lawyer who represented Carl Williams in 2010, said.
Mr Stary said he had no doubt conversations between lawyers and clients in prison were monitored and, although the communications were not used in evidence in court, he said they manifested in other ways.
"We couldn't understand how it is that the prosecution seemed to know all [of] what we were planning strategically in the running of the case," he said, referring to one high-profile matter.
"I'd be absolutely certain now in retrospect that they were monitoring all our communications and our phones."
Zarah Garde-Wilson, who also acted for Williams, as well as Tony Mokbel, was just as scathing.
"It's extremely unlikely Victoria Police would've kept paper records or electronic records of illegal activities let alone produce them to the Office of Public Prosecutions," Ms Garde-Wilson said.
"They have to make it appear that they're doing something but the reality is, just like the Lawyer X scenario, nothing will happen. No-one will be held accountable."
Another high-profile defence lawyer, who wished to remain anonymous, was furious.
"If Victoria Police have been sitting on recordings of accused people but more significantly witnesses in serious investigations and that those recordings, insofar as they relate to trials and proceedings, haven't been disclosed, then we may as well call another royal commission," they said.
Tasmanian incident leads to Victorian findings
Victoria Police's secret bugging program first came to the attention of integrity officials in 2023 after an incident involving Tasmania Police.
In 2017, Tasmanian detectives installed a listening device at Hobart's Risdon Prison to capture a single conversation between convicted murderer Sue Neill-Fraser and her lawyer.
The device was not turned off for two months and all conversations were live-streamed back to a police station.
The incident prompted Integrity Oversight Victoria to contact Victoria Police, which revealed the scale of its own bugging program.
Its bugging scheme "was not done under the authority of a surveillance device warrant", the watchdog said in its report.
The use of surveillance devices by police is strictly controlled in Victoria and officers must apply to the Supreme Court for permission to install and then retrieve them.
Police instead just turned them on and off.
No unauthorised use of listening devices identified, Victoria Police says
The watchdog ultimately reviewed 88 warrants and found that none revealed that police were using permanent bugs, which it said caused "significant concern".
"Victoria Police should have disclosed the existence and proposed use of the integrated listening devices to each judge at the time of application," the watchdog said.
The force told Integrity Oversight Victoria it had legal advice from 2018 which said it was operating within the confines of the law, but could not find anything earlier.
"This meant there does not appear to be any guidance supporting Victoria Police's practice for installing listening devices in prisons from 2000 to 2017," the watchdog's report said.
"We did not identify any unauthorised use of listening devices.
"However, we could not definitively confirm that listening devices were activated only in accordance with a warrant as Victoria Police was unable to show contemporaneous records, such as logs, to confirm when the listening devices were activated."
Concerns relate to legally privileged conversations
Alex Patten, the secretary of the Criminal Bar Association of Victoria, said the concern for criminal lawyers was "whether there's been any compromise with what would be a legally privileged conversation between a lawyer or a client".
"The fact they [the bugs] could be operated remotely — that's concerning given what appears to be some fairly haphazard record keeping by Victoria Police," he said.
George Defteros, who represented slain underworld identities Alphonse Gangitano and Mario Condello, said there was nothing wrong with recording conversations if police had the authority to do so.
"But it's different if there's lawyer-client privilege involved," Mr Defteros said.
"If someone goes to visit a client in jail, there should be private and confidential conversations."
Inquiry into Carl Williams's death raised concerns about illegal bugs
Integrity Oversight Victoria's report also raised questions about what role Corrections Victoria, which runs the state's prisons, may have had in installing the devices.
It made no findings about that agency, but pointed to an earlier Victorian Ombudsman inquiry into the death of gangster Carl Williams inside Barwon Prison that showed the prison authority knew the devices were illegal in 2010.
Fellow prisoner Matthew "The General" Johnson bashed Williams to death with the seat stem of an exercise bike inside the prison's maximum security Acacia Unit in April 2010.
Even though the attack was captured on CCTV, prison staff did not find out about the killing for almost half an hour, prompting the launch of the ombudsman's inquiry.
In addition to finding that Corrections Victoria failed in its duty to Williams, ombudsman George Brouwer raised concerns about illegal listening devices after nine were found in the Acacia Unit and one in another unit, Banksia, during a sweep following the murder.
Mr Brouwer quoted from a memo then-Corrections Victoria deputy commissioner Rod Wise sent to the secretary of the Department of Justice in June 2010 — two months after Johnson murdered Williams — advising that the installation of the devices was unlawful.
"It is now not clear why the Prison Services believed that it could act outside the Listening Devices Act 1969," Mr Wise said in the memo.
"Many [of the listening devices] it seems, were installed with Police knowledge and it is not now known whether the Police obtained proper authority from the Magistrates' or Supreme Court, as required; these records no longer exist."
He said that since 2000, the devices were installed "upon a warrant being obtained and sighted".
Integrity Oversight Victoria's report covered listening devices installed illegally between 2008 and last year, but the second phase of its investigation will look at devices dating back to the turn of the century.
Corrections Victoria did not answer the ABC's questions about its knowledge of and role in installing the illegal bugs — or why the program continued in prisons until last year despite Mr Wise recognising in 2010 that the practice was against the law.
"As the OIV intends to conduct a second inspection in respect of this matter, it would be inappropriate to comment further," a spokesperson said.
