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By Cameron Houston, The Age
The state’s corruption watchdog is investigating Victoria Police over allegations that information from privileged conversations between a senior member of the Mongols outlaw motorcycle gang and his lawyer was potentially used to build a legal case against the prominent bikie.
Mark Balsillie, 37, is charged with trafficking a commercial quantity of cocaine, possessing cocaine and dealing in the proceeds of crime, following a series of raids by officers from the Trident and Echo taskforces in August 2020.
A Lamborghini Huracan coupe worth nearly $500,000 and two other luxury cars were seized, suspected of being the proceeds of crimes between July 2019 and July 2020.
However, the police use of telephone intercepts and covert listening devices to obtain information from private discussions between Mr Balsillie and his solicitor, Nick Marcevski, is now under investigation by the Independent Broad-based Anti-corruption Commission.
According to the common law right of legal professional privilege, conversations between lawyers and their clients are protected and cannot be used by police for investigative or intelligence purposes. The ability to receive confidential advice from a lawyer that cannot be accessed, intercepted or used by police or prosecutors is considered a sacrosanct part of the administration of justice and the right to a fair trial.
The IBAC probe of police access to communications between Mr Balsillie and his lawyer was raised during a directions hearing in the County Court last week.
Ian Hill, QC, representing Mr Balsillie, asked for the police informant involved in the case to confirm if they are under investigation.
Mr Hill was granted a six-week adjournment for police to comply with the request after a County Court registrar conceded the IBAC investigation could be a “significant issue in this trial”.
An IBAC spokeswoman declined to comment on the probe.
“As a matter of practice, IBAC does not comment on whether it has a complaint or investigation before it,” the spokeswoman said.
A Victoria Police spokeswoman also declined to comment and directed all inquiries to IBAC.
In 2020, The Age revealed that Victoria Police had inappropriately handled confidential information from bugged phone calls between lawyers and their clients for a period of three years, in an incident the force blamed on an “inadvertent IT error”.
Details of the breach were contained in an affidavit from Detective Acting Superintendent Damian Jackson, head of Victoria Police’s covert services division, which was referred to IBAC and the Victorian Bar Association in November 2020.
“Victoria Police has become aware that, due to an inadvertent IT error, call summaries that had been prepared of communications intercepted under a number of telecommunications interception warrants, and which it had identified as containing communications subject to legal professional privilege, had been inadvertently made accessible to investigators,” Acting Superintendent Jackson said in the affidavit.
He insisted there was “no evidence” any protected information had been inappropriately used by investigators, following an internal investigation by the force.
When conversations between lawyers and their clients are inadvertently intercepted by wiretaps or other covert recording methods, police protocols require them to be marked as “privileged” and “quarantined” from police investigators.
But Acting Superintendent Jackson said investigators had potentially gained access to written summaries of these protected communications after they were “inadvertently” exported to a file management system accessible by investigators due to an IT error.
Copies of actual recordings were not accessible, only the summaries, according to the affidavit.
Mr Balsillie, who is national sergeant-at-arms of the Mongols, declined to comment when contacted by The Age.
Mr Marcevski did not respond to requests for comment.