Douglas Drummond QC said public confidence is unlikely to be restored if any Victoria Police unit is left to investigate whether any of its current or former members, including the chief commissioners, have committed criminal offences. 

“That is what will very likely happen if the commission leaves it to the Victorian Director of Public Prosecutions to decide whether there are to be any criminal convictions,” he said.

As all evidence collected by the royal commission over its inquiry period was deemed inadmissible in court, fresh investigations would be needed in order to test the strength of the case and prepare the briefs of evidence for prosecutors. Mr Drummond said the investigations are not within the functions of the DPP or its office. 

“If Victoria Police control the investigations and preparation of briefs for the DPP, they will effectively determine who, if any, police will be prosecuted,” he said. “How can the public have confidence now that Victoria Police will be diligent in investigating and in preparing prosecution briefs against their own members?” 

The DPP has disagreed with this sentiment, claiming via a statement that the functions are carried out independently of Victoria Police and state’s Attorney-General. The office said its independence is underpinned by the Prosecutions Act 1994. 

However, it did concede that briefs of evidence are typically prepared by investigative agencies like Victoria Police but that decisions made in respect of prosecutions arising from the briefs are to be “made independently” of police influence. 

“Prosecutorial decisions are made on the basis of clearly stated criteria set out in the Policy of the Director of Public Prosecutions,” the office claimed. “I strongly reject the suggestion that such decisions are in any way influenced by political considerations.

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“Such a suggestion is fundamentally inconsistent with the Directors’ role and statutory frameworks under which the office of the Director is established.” 

Mr Drummond also ruled out leaving the investigation to the Independent Broad-based Anti-Corruption Commission (IBAC) as it has been “largely neutered” by the government and its lack of funding. 

He said an agency responsible for the investigations of police conduct and preparation of briefs should be at “arm’s length” of IBAC, “which has already decided that police did not engage in any criminal conduct”. 

Mr Drummond instead asked the royal commission to consider in its final report the likelihood of establishing a special prosecutor who would be resourced with staff and budget necessary to complete all investigations necessary to prepare sufficient briefs of evidence. 

This prosecutor, he added, should be independent of political direction, “in contrast with the DPP” who he said acts in accordance to the Attorney-General’s directions. 

“The Andrews Government has benefited politically from various recent actions by Victoria Police. The government has relied on Victoria Police, led by its senior officers, to rigorously enforce the harsh lockdown decrees the government has issued during the coronavirus pandemic,” Mr Drummond said. 

“There should not be room for any perception that decisions whether any serving or former Victoria Police should be prosecuted may be subject to political influence keen to ensure continuing police support.”