Minogue v IBAC

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 03380

CRAIG MINOGUE	Plaintiff
v
INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION	Defendant

---

JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2025
DATE OF JUDGMENT:	16 April 2025
CASE MAY BE CITED AS:	Minogue v IBAC
MEDIUM NEUTRAL CITATION:	[2025] VSC 197

---

JUDICIAL REVIEW – Plaintiff complained to the Independent Broad-based Anti-corruption Commission claiming a conspiracy and corrupt conduct of public bodies and public officers in respect of R v Camilleri [2013] VSC 676 – Plaintiff subsequently advised the defendant that it ‘must’ speak with the mother of a girl who disappeared in 1992 – Defendant later determined not to investigate the complaint and, consequently, the complaint was dismissed – Plaintiff sought judicial review – Whether defendant failed to take a mandatory relevant consideration into account or unreasonably failed to inquire – Independent Broad-based Anti-corruption Commission Act 2011 (Vic), ss 3, 8, 15, 51, 59, 59A, 60, 63, 67 and 68 – Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; Chang v Neill (2019) 62 VR 174; Schmael v Leach [2020] VSC 562 and MacKenzie v Head, Transport for Victoria [2021] VSCA 100 considered – Proceeding dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	DP McCredden	Maddocks

HIS HONOUR:

A Introduction

These introductory remarks are derived from the material presented by the parties.

Since 1986, the plaintiff has been incarcerated in connection with the ‘Russell Street bombing’.

At his Supreme Court trial in 1988, the prosecution witnesses included Paul and Julie Hetzel. The plaintiff says that their evidence was discredited and must have been disbelieved by the jury. In any event, the plaintiff was convicted. His brother, Rodney Minogue, was acquitted.

In February 1992, Prue Bird (aged 13) disappeared from her home in Glenroy and is presumed dead. Her body has never been found. She is the daughter of Jenny Bird (‘Ms Bird’), who is, in turn, the daughter of Julie Hetzel.

It seems to have later been reported in the press that the plaintiff ordered the murder of Prue Bird as an act of revenge in order ‘to punish the star witness who testified against him’.[1]
[1]Court Book (‘CB’) 51 [33].

In about 2009, Leslie Camilleri confessed to the abduction and murder of Prue Bird. In 1999, Mr Camilleri had been sentenced to life without parole in respect of the ‘Bega schoolgirl murders’. The facts and circumstances relating to the death of Prue Bird were in dispute.

Mr Camilleri’s plea was heard by Curtain J over nine days in 2013. On 5 December 2013, her Honour sentenced Mr Camilleri to 28 years’ imprisonment to be served concurrently with the sentences he was already undergoing. It will be necessary to refer to her Honour’s sentencing remarks in some detail (‘Camilleri’).[2]
[2]R v Camilleri [2013] VSC 676 (‘Camilleri’).

In 2019, the plaintiff complained to the Independent Broad-based Anti-Corruption Commission (‘IBAC’) in respect of what he refers to as the ‘Camilleri conspiracy’.

During the present hearing, reference was made to a detailed case summary report that, among other things, describes the plaintiff’s 2019 complaint and its disposition as follows –

… the complainant [plaintiff] raised allegations to IBAC that Victoria Police and the Supreme Court had used/allowed information, speculating as to his involvement in the murder to be included in the trial against Camilleri. The complainant believed police wanted to charge someone with Bird’s murder so they could hold a “faux trial”, as an opportunity to remind the public of the complainants’ prior threats to kill Bird. The complainant believes this speculation caused damage to his reputation. It does not appear the complainant was actually a subject of the trial of Camilleri. The above allegations were dismissed by IBAC as, ‘Lacks substance or credibility ss 67(2)(c)’ [of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (‘IBAC Act’)] and ‘Conduct doesn’t warrant investigation ss 67(2)(g).[3]

[3]CB 94.

The plaintiff subsequently came into the possession of various documents, including part or all of a Victoria Police ‘target profile’ relating to him, as well as other police records apparently relating to Rodney Minogue and Ms Bird together with a largely incoherent letter written by an inmate.[4] In the present hearing, the plaintiff was apt to describe that material as ‘fresh evidence’.
[4]CB 80-92.

On about 24 October 2023, the plaintiff lodged a further written complaint with IBAC. Among other things, the complaint stated –

I write as a detained person to make a formal public interest complaint about corrupt conduct pursuant to the relevant provisions of the Independent Broad-based Anti-corruption Commission Act 2011 and the Public Interest Disclosures Act 2012.
…
My complaint is directed to an allegation of corrupt conduct of public officers from:
• Victoria Police;
• Victorian Government Solicitor’s Office;
• Office of Public Prosecutions, including Crown Prosecutors;
• The Director of Public Prosecutions;
• Judicial Officers of the Supreme Court; and
• Court Services Victoria staff.
It is my complaint that public officers from the above agencies have all acted corruptly for the purposes of s 4(1)(b)(c)(d) of the IBAC Act which I claim constitute conduct which is a ‘relevant offence’ under the IBAC Act of: attempting to pervert the course of justice; perverting the course of justice; and misconduct in public office. Further, I claim that a fraud that was knowing[ly] or recklessly committed on the Supreme Court in the matter of R v Camilleri [2013] VSC 676.
…
The details of my complaint, the factual background and supporting documents are found in a draft affidavit that is attached with the file name of PB Conspiracy.pdf.
I have previously made a complaint to IBAC about the PB Conspiracy and that complaint was dismissed. However, I now have fresh evidence in the form of secret Victoria Police intelligence assessments and opinions which report that Victoria Police [have] known that the confession and plea of guilty in R v Camilleri [2013] VSC 676 was falsely made. Copies of these … secret Victoria Police documents, which were obtained by me on 19 May 2021, are attached as an exhibit to the draft affidavit.
…[5]

[5]CB 41-3 (emphasis in original).

The ‘draft affidavit’ comprises 34 pages of single-spaced text together with the so-called ‘fresh evidence’.[6] The title page states that it was ‘[u]pdated on 10 April 2023’.
[6]CB 44-92.

The draft affidavit includes a detailed critique of Camilleri, as well as various other events, by reference to which the plaintiff broadly seeks to advance the contention that ‘the Camilleri sentencing hearing was corruptly and improperly exploited by VP/OPP/DPP as an opportunity for a faux trial to be prosecuted against me’.[7]
[7]CB 45 [7].

Among many other things, the draft affidavit states –

[6]… On the un-redacted version of p7113 [ie, the document relating to Jenny Bird], Ms Bird says at point 19, that the Hetzel’s “were never scared” of me and others. This corroborates my account, put at the RSB [Russell Street bombing] trial in 1988, and in my 22 May 2019 written statement to police and this affidavit.
…
[25]The jury in the RSB trial acquitted me of the charges associated with the theft of the explosives from the Blackwood gold mine. It is my reasonably held belief that this acquittal speaks to the fact that the evidence of the Hetzel’s [sic] of threats to them and their grandchildren were not accepted by the jury.
…
[103]The mother of Prudence Bird, Ms Jenny Bird, has publicly in the media, and socially in her community, pursued the “Craig Minogue and RSB” revenge motive that was seeded by Paul Hetzel in 1986-88, as being the complicated explanation for the disappearance and presumed murder of her daughter. This despite the fact that the claims by Paul Hetzel about the threats against Prudence Bird were shown to be false at the 1988 trial, and despite the fact that a jury acquitted me of a change which was based on the claims of the threats against Prudence Bird. It is my guess that VP did not take the disappearance of Prudence Bird and the RSB revenge claim seriously in 1992, because there was knowledge within VP that the claims of Paul Hetzel of coercion and the [threat] to Prudence Bird were false.
…[8]

[8]CB 44-5, 49, 69-70.

On 4 December 2023, the plaintiff emailed the defendant referring to [6] of his draft affidavit (extracted above) as well as the document in the ‘fresh evidence’ relating to Ms Bird,[9] and stating that a ‘proper and lawful’ consideration of the ‘Camilleri Conspiracy’ requires that the defendant speak with her. In that connection, the plaintiff’s email states –

… It is my honestly held belief that Ms Jenny Bird would, if she was asked by IBAC, if she thought that the conviction in the R v Camilleri [2013] VSC 676 was a fraud on the Court to falsely convict someone for the murder of her daughter [so] as to clear the books, she would emphatically answer YES.[10]

[9]Cf CB 86, 88.

[10]CB 19.

In April 2024, a delegate considered the plaintiff’s complaint, together with documents including the case summary report. The case summary report identified the complaint as comprising distinct allegations, including several allegations that Camilleri constituted a corrupt ‘faux trial’ against the plaintiff.

In that connection –

(a) the delegate considered whether any of the allegations were a ‘public interest complaint’ within the meaning of the Public Interest Disclosures Act 2012 (Vic);

(b) the delegate determined that none of the allegations were a ‘public interest complaint’;

(c) the delegate considered whether, pursuant to s 67 of the IBAC Act, each of the allegations should be dismissed, referred to another body to investigate or investigated by the defendant;

(d) the delegate determined that none of the allegations warranted investigation; and

(e) consequently, pursuant to s 58 of the IBAC Act, IBAC was required to dismiss the complaint.[11]

[11]See generally CB 25-39. Cf IBAC Act, s 68(1)(a).

The delegate identified the considerations to which he had regard in determining that the allegations did not warrant investigation, including, as the case may be –

(a) the lack of substance and credibility in the complaints;

(b) that particular complaints essentially amounted to criticism of decisions to adduce and admit evidence in a judicial proceeding, and related judicial findings, and that IBAC was not the appropriate agency to consider such matters;

(c) that particular complaints overlapped to an extent with the plaintiff’s 2019 complaint, which IBAC had dealt with and dismissed;

(d) the significant length of time since the murder in 1992, and the Camilleri trial in 2012-13, which was a consideration militating against undertaking an investigation;

(e) that s 63 of the IBAC Act required that the allegation against Curtain J be dismissed; and

(f) that there was a lack of any information to suggest corrupt conduct by the Victorian Government Solicitor’s Office.[12]

[12]See generally CB 25-39. Cf IBAC Act s 68(1)(a).

By letter dated 27 May 2024, the defendant advised the plaintiff that it had determined not to investigate his complaints. Among other things, the letter states –

IBAC has decided not to investigate or refer your complaints to another agency for investigation. IBAC decides to not take further action in relation to a complaint for a number of reasons, which are set out in legislation, specifically section 67 of the [IBAC Act].
The threshold for an IBAC investigation is very high and includes evidence of serious or systemic corrupt conduct. In some cases, IBAC may refer serious allegations to another agency for investigation. Unfortunately, on this occasion, IBAC has decided that an investigation by it or a referral to another agency is not warranted.[13]

[13]CB 15.

By originating motion filed 3 July 2024, the plaintiff sought judicial review. Among other things, his originating motion states that –

No person acting reasonably and within jurisdiction could have possibly decided on the evidence provided to IBAC in the draft affidavit that the Camilleri Conspiracy complaint … met any of the s 67 conditions for deciding that it did not warrant investigation.[14]
[14]CB 5.

B The proceeding

The plaintiff’s originating motion was accompanied by a summons, affidavit and outline of submissions.

In the latter document, among other things, the plaintiff contended that –

(a) he had made ‘cogent and compelling complaints about a perverting of the course of justice in R v Camilleri’ that, he said, had been ‘simply ignored’;[15] and

(b) there was nothing on the face of the record that allowed him to know the reasons for the defendant’s decision.[16]

[15]CB 21 [2].

[16]CB 23 [7].

Subsequently, the delegate affirmed an affidavit dated 28 April 2024, aspects of which are highlighted above. Among other things, the affidavit addressed the process by which the decision was made and the considerations variously taken into account.[17]
[17]CB 25-107.

On 16 October 2024, the plaintiff filed a further outline of submissions in which, among other things, he contended that –

(a) the delegate erred in characterising his complaint as about ‘privacy and reputation’;[18]
[18]CB 108 [1], 109 [8].

(b) a fraud had knowingly or recklessly been committed on the Supreme Court in the matter of R v Camilleri;[19]
[19]CB 108-9 [2]-[5], 112 [22].

(c) Ms Bird ‘must be contacted’, which had not occurred, and which was ‘so unreasonable that it vitiates the decision’;[20] and
[20]CB 110 [11]-[12], [14].

(d) in that connection –

It is my understanding that Ms Jenny Bird attended every day of the 12 month long Camilleri plea hearing and the matter came to an end with her being in dispute with Victoria Police and the OPP/DPP about the obvious fraud that was being committed in the Court in the matter of the murder of her daughter.[21]

[21]CB 110 [13].

On 20 November 2024, the defendant filed a detailed outline of submissions addressing the plaintiff’s various contentions.[22]
[22]CB 113-30.

On 4 December 2024, the plaintiff filed an outline of submissions in response. Among other things, he submitted that –

(a) the defendant had not answered the case he had brought;[23]
[23]CB 131 [1].

(b) the failure of the defendant to ‘contact an important witness and make inquiries’ could amount to a breach of natural justice;[24]
[24]Ibid [2].

(c) the defendant failed to make a reasonable attempt to contact ‘the potentially vital witness, Ms Jenny Bird’;[25]
[25]CB 133 [17].

(d) the defendant was ‘bound by the IBAC Act to make inquiries with that important witness, and then take into account any information she may have provided’;[26]

(e) inquiry of Ms Bird ‘would have led to the “exposure” of corrupt conduct’, and the failure of the defendant to make that inquiry was ‘so unreasonable that it vitiated jurisdiction’;[27] and

(f) the plaintiff would seek to subpoena Ms Bird to give evidence and, in due course, pose particular stated questions for her to answer.[28]

[26]CB 135 [26].

[27]Ibid [27], [29].

[28]CB 135-6 [30]. The stated questions were in the following terms: ‘I made a complaint to IBAC that the conviction of Leslie Camilleri for the murder of your daughter involved a fraud on the Court by Victoria Police and others, because any person acting honestly could not have helped but to have known that his confession was false. In my complaint, I insisted the IBAC contact you and seek your knowledge as it relates to the conviction of Leslie Camilleri. It was my belief, that you would have vitally relevant information that would support my complaint that there had been a fraud on the Court by Victoria Police and others in the case about the murder of your daughter. We know that IBAC did not contact you and make any inquiries, and I am claiming that this was a shortfall in addressing my complaint that was so unreasonable that it was unlawful. Do you understand that? Do you believe that you have information that would go to the issue as to if there had been a fraud on the Court by Victoria Police and others in the case of Leslie Camilleri? [If yes] Please tell the Court in detail what that information is’. I should note that, on 28 February 2025 Ierodiaconou AsJ dismissed an application by the plaintiff seeking leave to issue a subpoena to Ms Bird.

The plaintiff’s originating motion came on for hearing on 28 March 2025.

At the hearing, among other things, the plaintiff submitted that —

(a) his complaint had been ‘falsely categorised’ as concerning his ‘privacy and … reputation’ — which, he said, was a ‘dishonest strawman’;[29]
[29]Transcript (‘T’) 2.

(b) in any event, ‘the heart of the issue’ was that —

… Ms Jenny Bird was a vital and relevant eyewitness to the complaint I made to IBAC and that has been deflected by wrongly categorising my complaint as being about privacy and reputation. My Camilleri conspiracy complaint was about a fraud that was committed on this Court in the Camilleri matter where, firstly, allegations about … my culpability of an involvement in murder were agitated before the Court over a 12-month period without my being charged with any offence or without my being afforded the right to be heard to rebut the allegations. And when I asked the Court to be heard to rebut the allegations, that was refused.[30]
[30]T3.

(c) in Camilleri, the Court made findings of fact about his culpability for and involvement in the murder of Prue Bird;[31]
[31]T3.

(d) further, the ‘narrative of the whole case’ in Camilleri was about ‘the revenge motive and Craig Minogue and the Russell Street bombing’ and, consequently, the proper processes of the Court had been abused ‘to cast blame on me and to allege my involvement in this crime without my [being] given a right to be heard’;[32]
[32]T7.

(e) certain old English authorities were the ‘template’ for the alleged abuse of process;[33]
[33]T8

(f) an attempt to contact Ms Bird was a ‘mandatory decision-making consideration’;[34]
[34]T10.

(g) in that regard –

It’s my honestly held belief that Jenny Bird sat through the 12-day long plea hearing of Leslie Camilleri, and she came to the conclusion that a fraud was being committed on the Court, and that she believed that Leslie Camilleri had absolutely nothing to do with the murder of her daughter, and Victoria Police put a palpably false case to the Court to simply clear their books of an embarrassing cold case.
Jenny Bird said in her victim impact statement that she had – and this is in the judgment at paragraph 77 – that she had lost trust in the police because the case against Camilleri was palpably false. It was run to implicate me in a murder that I could not have possibly committed. I’ve been in prison since May 1986, and yet in the Camilleri case, the Court found that witnesses who identified me as me being at the crime scene in 1992 were witnesses of credit.
So Ms Bird would be able to give evidence about what she witnessed in Court and with police, and I have made that explicitly clear, and that’s why I tried to call Ms Bird as a witness, and I was hoping that maybe even today she would turn up, but no, she hasn’t. She was an eyewitness to the corrupt conduct, to the fraud on the Court. No one believes Camilleri was guilty of the offence. Victoria Police themselves say it, and that’s in the court book in the materials I provided.[35]

(h) consequently, the defendant’s exercise of power was vitiated by unreasonableness;[36] and

(i) in that connection, the defendant misconstrued sub-s 67(2)(g) of the IBAC Act.[37]

[35]T11-12. See also T21-2.

[36]T16-17.

[37]T17-21.

In response, among other things, counsel for the defendant —

(a) noted that the plaintiff’s arguments had shifted over time;[38]
[38]T23.

(b) directed attention to various provisions of the IBAC Act;[39]
[39]T24-33.

(c) submitted that –

… there was no obligation on IBAC to make inquiries of an alleged witness having regard to the statutory functions I’ve taken Your Honour to and the particular powers [it was] exercising, but further, and logically separate to that, … when one had regard to the information about that witness that the plaintiff had given to IBAC at the time of his complaint, it is clear, in my submission, that it was well within IBAC’s discretion to decline to investigate the complaint without making any such inquiries …[40]
[40]T32.

(d) thereafter addressed three particular matters that were said to ‘tell clearly against the plaintiff’s contention that there was some unlawfulness in failing to make those inquiries’;[41]
[41]T32-3, 37-43.

(e) contended that it was ‘not clear on the present state of the evidence’ that inquiry of Ms Bird would have made any material difference to the decision of the defendant;[42]
[42]T40. In that connection, counsel later identified several authorities in relation to the issue of ‘materiality’: particularly, Hossain v Minister for Immigration (2018) 264 CLR 123, Minister for Immigration v SZMTA (2019) 264 CLR 421 and MZAPC v Minister for Immigration (2021) 273 CLR 506 and LPDT v Minister for Immigration (2024) 418 ALR 152 (‘LPDT’).

(f) also submitted that the plaintiff had conflated the concept of ‘relevant consideration’ with a ‘source of potential evidence that might inform a relevant consideration’ and had failed to identify a ‘matter or topic’ that the defendant had failed to take into account;[43]
[43]T46.

(g) contended that the ‘test’ for legal unreasonableness is ‘stringent’ and that the particular information under consideration was ‘nowhere near the type of obviously critical information that might, in theory, … support some argument of irrationality or unreasonableness’;[44]
[44]T47-8.

(h) contended further that, having regard to the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’), it had been necessary for the decision-maker to consider ‘privacy and reputation’;[45] and
[45]T48.

(i) submitted that the affidavit of the delegate, together with the case summary report, demonstrate that –

… the decision maker here correctly understood and identified the allegations that were being made, and the way that those allegations were dealt with is explained in a cogent way and demonstrates [that] the decision maker understood the central aspects of the plaintiff’s complaint.[46]

[46]T48-9.

In reply, among other things, the plaintiff submitted that —

(a) the defendant had failed to discharge its investigative function by not making ‘a simple phone call to Ms Bird to ask her if she had anything relevant’;[47]
[47]T50-4.

(b) his earlier complaints concerning procedural fairness and reasons were ‘a bit of a side issue’ and did not now need to be determined;[48] and
[48]T54-5.

(c) in summary –

… in all of the circumstances, a simple phone call to Ms Jenny Bird was mandatory … because … she was an obvious person to ask the question of. And that question wasn’t asked because IBAC wasn’t interested in hearing from the likes of me about such a matter.

And the fact that Victoria Police in their [intelligence] assessment report agreed with me that there’s a strongly held belief that Camilleri didn’t commit the crime, that didn’t make any inroads whatsoever.[49]

[49]T55.

C Relevant provisions

It will be evident that the arguments touched on various provisions of the IBAC Act.

In that regard, the plaintiff’s complaint to IBAC was directed to the following paragraphs of the definition of ‘corrupt conduct’ stated in s 4 –

(1) For the purposes of this Act, corrupt conduct means conduct—

(a) …

(b) of a public officer or public body that constitutes or involves the dishonest performance of his or her or its functions as a public officer or public body; or

(c) of a public officer or public body that constitutes or involves knowingly or recklessly breaching public trust; or

(d) of a public officer or a public body that involves the misuse of information or material acquired in the course of the performance of his or her or its functions as a public officer or public body, whether or not for the benefit of the public officer or public body or any other person; or

…[50]

[50]CB 42.

In argument, the parties each emphasised different stated objects and functions of IBAC. In that connection –

8 Objects of Act
The objects of this Act are to—
(a)provide for the identification, investigation and exposure of—
(i)corrupt conduct; and
…

(aa)provide for the IBAC to prioritise the investigation and exposure of serious corrupt conduct or systemic corrupt conduct;
…

15 Functions of the IBAC

(1) The IBAC has the functions conferred on the IBAC under this Act or any other Act.

(1A) In performing its functions, the IBAC must prioritise its attention to the investigation and exposure of corrupt conduct which the IBAC considers may constitute serious corrupt conduct or systemic corrupt conduct.

(1B) Subsection (1A) does not restrict the IBAC’s discretion to determine to investigate any matter that the IBAC considers may constitute corrupt conduct.

(2) Without limiting the generality of subsection (1), the IBAC has the following functions—

(a) to identify, expose and investigate corrupt conduct;

…

(3) Without limiting the generality of subsection (2), the IBAC has the following functions under subsection (2)—

(a) to receive complaints and notifications to the IBAC in relation to corrupt conduct;

…

Part 3 of the IBAC Act is entitled ‘Investigations’.

Division 1 of Part 3 is directed to ‘Complaints to the IBAC’, within which the following sections appear –

51 Complaints to the IBAC about corrupt conduct
A person may make a complaint to the IBAC about conduct the person believes may be corrupt conduct.

…
53 Complaint to be in writing
A complaint to the IBAC must be made in writing unless the IBAC determines that there are exceptional circumstances for a complaint to be made otherwise than in writing.

54 Complaint from detained person
(1) This section applies if a detained person wishes to—
(a)provide information or make a complaint to the IBAC under this Act; or …

…

Division 2 of Part 3 is entitled ‘Information and notifications to the IBAC’.

In that connection, in respect of the receipt of information, s 56 relevantly states –
(1)The IBAC may receive from any body or person information relevant to the carrying out of the IBAC’s investigative functions or the IBAC’s functions under section 15(7)(a) or conducting a preliminary inquiry under Division 3A.
(2)The IBAC may receive information under subsection (1) even if that information does not form part of, or is not related to, a complaint.
(2A)…
(3)The IBAC may use information received under this section in carrying out its investigative functions or conducting a preliminary inquiry under Division 3A.
…

Division 3 of Part 3 is entitled ‘IBAC obligations in relation to complaints and notifications to the IBAC’. In that connection –

58 IBAC must dismiss, investigate or make referral
In relation to any complaint or notification to the IBAC, the IBAC must, in accordance with this Act—
(a)dismiss the complaint or notification if there are grounds to do so; or

(b) investigate the complaint or notification; or
(c) make a referral of the complaint or notification.

…
59Notice of dismissal, investigation or referral of complaint or notification
(1)Subject to subsections (2) and (4), the IBAC may notify the person who made a complaint to the IBAC—
(a)of the action referred to in section 58 that the IBAC has taken; or
…

(2)Subject to subsection (4), the IBAC must notify the person who made a public interest complaint of—
(a)the action referred to in section 58 which the IBAC has taken; and
(b)in the case of a decision by the IBAC to dismiss the public interest complaint—the reasons for the decision.

(3)A notification under subsection (2) must be given within a reasonable time after the action has been taken or the investigation has commenced.
(3A)Subject to subsection (4), the IBAC may notify the person who made a notification to the IBAC—
(a)of the action referred to in section 58 that the IBAC has taken; or
(b)if applicable, that the IBAC has deferred taking that action while the subject matter of the notification is being investigated by another person or body.

(4)The IBAC must not notify a person under subsection (1), (2) or (3A) if the IBAC considers that notifying that person would—
(a)not be in the public interest or in the interests of justice; or

(b) put a person’s safety at risk; or
(c) cause unreasonable damage to a person’s reputation; or
(d)prejudice an investigation under this Act or an investigation by Victoria Police or the person or body to which the referral was made; or
(e)otherwise contravene any applicable statutory secrecy obligations or which would involve the unreasonable disclosure of information relating to the personal affairs of any person.

…

Division 3A of Part 3 is entitled ‘Preliminary inquiries’.

In that connection, s 59A states –
The IBAC may conduct a preliminary inquiry for the purpose of determining whether to dismiss, refer or investigate a complaint or notification under this Act.
In respect of a ‘preliminary investigation’, s 59D empowers IBAC to request the principal officer of a public body to provide requested relevant information, and s 59E empowers it to issue witness summonses.

Division 4 of Part 3 is entitled ‘Carrying out investigations’.

In that regard, the defendant highlighted –

60 Conducting investigations about corrupt conduct
(1)Subject to subsection (2), the IBAC may conduct an investigation in accordance with its corrupt conduct investigative functions—
(a) on a complaint made to it under section 51; or
…
(2)The IBAC must not conduct an investigation under subsection (1) unless the IBAC suspects on reasonable grounds that the conduct constitutes corrupt conduct.

…
63The IBAC must dismiss certain complaints or notifications to the IBAC about judicial officers
The IBAC must dismiss a complaint or a notification to the IBAC about the conduct of a judicial officer if the complaint or notification directly relates to the merits of a decision made, an order made or a judgment given by the judicial officer.

…
67Complaints or notifications to the IBAC that do not warrant investigation
(1)Subject to sections 60(2), 60(4), 60(5), 63 and 65, the IBAC, in its absolute discretion, may determine that a complaint or a notification to the IBAC does not warrant investigation.
(2)Without limiting subsection (1), the IBAC may determine under that subsection that a complaint or a notification to the IBAC does not warrant investigation if, in the opinion of the IBAC—
(a)the subject matter of the complaint or notification is trivial or unrelated to the functions of the IBAC; or
(b)the complaint or notification is frivolous or vexatious; or
(c)the complaint or notification lacks substance or credibility; or
(d)the matter has already been the subject of a complaint or notification which has been investigated or otherwise dealt with; or
(e)the complaint or notification relates to conduct that occurred at too remote a time to justify investigation; or
(f)the complaint or notification was not made genuinely or was made primarily for a mischievous purpose; or
(g)in all of the circumstances, the conduct does not warrant investigation.

…

68 When certain complaints or notifications to the IBAC are dismissed
(1)A complaint or notification to the IBAC other than a public interest complaint is dismissed if the IBAC—
(a)determines under section 65(2) or section 67(1) that the complaint or notification does not warrant investigation; or
...

(2) A public interest complaint is dismissed if—
(a)…
(b)the IBAC has determined under section 67(1) that the complaint does not warrant investigation because any of the criteria specified in section 67(2)(b), (c), (d), (e) or (f) apply; or
…

As I have earlier noted, the plaintiff emphasised s 67(2)(g).

D Consideration

It will be evident that the plaintiff’s central contention came to be that the defendant’s decision is vitiated by its failure to attempt to inquire of Ms Bird.

The plaintiff’s submissions did not engage in any detailed examination of the relevant authorities. Accordingly, it is, perhaps, unsurprising that his submissions tended to refer to ‘unreasonableness’ and the alleged failure to have regard to a ‘relevant consideration’ somewhat interchangeably.

In its most succinct form, however, it was plain enough that the plaintiff’s complaint was one of an unreasonable failure to ‘inquire’,[51] and that he sought to advance that contention with reference to features broadly referred to in the relevant authorities, including whether the views of Ms Bird were ‘central’, ‘critical’, ‘vital’ and ‘key’, as well as whether she could easily have been located.[52]
[51]See, eg, T17 (‘... the unreasonableness of that lack of decision-making consideration vitiated the lawful exercise of power under [s] 67 …’), T22 (‘Should an inquiry have been made as to if she had relevant information about the subject matter of my complaint when deciding about whether or not to investigate the complaint and they didn’t do that’).
[52]T21-2, 52,55. Cf Schmael v Leach [2020] VSC 562, [37] (‘Schmael’).

From what I have earlier said, it will be evident that the alleged views of Ms Bird were not identified with particular consistency or clarity. Indeed, the plaintiff seems to have been in doubt about what, if any, relevant views Ms Bird might have been in a position to express.[53]
[53]See, eg, CB 135-6 [30], T15 (‘… she might not have been available to speak to them. She might not have been willing to speak to them.’).

Consequently, it is considerably more apt to describe the plaintiff’s complaint as one of an unreasonable breach of a ‘duty to inquire’ in respect of the views of Ms Bird than as a failure to take account of a relevant consideration.[54]
[54]Cf Chang v Neill (2019) 62 VR 174, [71]-[72].

It is presently unnecessary to survey all of the authorities concerning an unreasonable failure to inquire giving rise to jurisdictional error.

That said, such a survey would commence with Prasad v Minister for Immigration and Ethnic Affairs (‘Prasad’),[55] in which Wilcox J considered a ministerial decision to refuse an application for a permanent entry permit and expressed the tentative view that, where it is obvious that material is readily available and centrally relevant to the decision, to make the decision without making any attempt to obtain that information may amount to an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it. As his Honour noted, in such an instance the court should receive evidence as to the existence and nature of the information.[56]
[55](1985) 6 FCR 155 (‘Prasad’).
[56]Prasad (n 55) 169-70. Cf City of Melbourne v Neppessen [2019] VSC 84, [84]-[89] (‘City of Melbourne’); Schmael (n 52) [17]-[25].

After Prasad, several other Federal Court decisions followed.

In Minister for Immigration and Citizenship v SZIAI,[57] the High Court considered an alleged failure of the Refugee Review Tribunal to make inquiries arising from certain certificates. In that context, French CJ, Gummow, Hayne, Kiefel, Crennan and Bell JJ referred to and discussed several authorities, including Prasad,[58] and stated –

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.[59]

[57](2009) 259 ALR 429 (‘SZIAI’).

[58]Prasad (n 55).

[59]SZIAI (n 57) [25]. See also Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22.

Their Honours thereafter observed that, in that particular instance, ‘nothing on the record’ indicated that any further inquiry by the Tribunal ‘could have yielded a useful result’.[60]
[60]SZIAI (n 57) [26].

More recently, in Schmael v Leach,[61] a medical panel came to an opinion that the plaintiff had ‘no evidence of an organic medical condition’. However, the plaintiff had informed the Panel that she had recently been seen by a surgeon and referred for bilateral scans. Subsequently, the surgeon examined the scan results and informed the plaintiff that she had ‘bursitis, impingement and rotator cuff tendinitis’. The plaintiff proceeded to shoulder surgery.
[61]Schmael (n 52).

Richards J noted that cases of failure to inquire amounting to jurisdictional error had been described as ‘rare or exceptional’.[62] That said, her Honour accepted that it had been legally unreasonable for the Panel to give its opinion without having obtained the scan results.
[62]Schmael (n 52) [29].

In that connection, her Honour stated, in substance –

(a) it must have been obvious to the Panel that the scan results would be centrally relevant to the medical questions on which it was to provide its opinion;[63]

(b) in the circumstances, the statement of the Panel that ‘no additional or medical imaging or other investigations were necessary’ had ‘no evident or intelligible basis’;[64] and

(c) consequently, the determination of the Panel to give its opinion without seeing any further imaging was a ‘failure to make an obvious inquiry about a critical fact’ the existence of which could easily have been ascertained.[65]

[63]Ibid [39].

[64]Ibid [40].

[65]Ibid [41].

Finally, in MacKenzie v Head, Transport for Victoria,[66] the applicants contended that factual errors in certain reports were capable of establishing that ministerial decisions relating to a section of the Western Highway were unreasonable and irrational.
[66][2021] VSCA 100 (‘MacKenzie’).

In that context, the Court of Appeal (Tate, Kyrou and Kennedy JJA), referred to authorities including Prasad, SZIAI and Schmael[67] and stated that –
[67]Ibid [149], [161]-[162].

[163] … the excluded reports did not engage the principle in Prasad in connection with the 2013 Ministerial assessment. That is because: the factual matters dealt with in those reports were neither ‘critical’ nor ‘central’ to the Minister’s decision; their existence was not easily ascertained; and the Minister did not fail to make any obvious inquiry in relation to them. The excluded reports post-dated the 2013 Ministerial assessment and disclosed matters that came to light after that time based on further enquiry. There was nothing in the material before the Minister when he made the 2013 Ministerial assessment that alerted him to the errors that came to light later.

[164] Whilst the reports were in existence when, in 2017, the Minister made the Exemption decision, and the Adoption and Approval decision, the applicants have not demonstrated that the reports were either ‘critical’ or ‘central’ to the Minister’s decisions. …

It may be noted that no doubt was there expressed about whether, in fact, there is a ‘Prasad principle’.

It is important to note that the relevant authorities tend to consider any availability and applicability of the ‘Prasad principle’ upon a careful consideration of the provisions of the relevant statute. For example, in Schmael, Richards J considered various provisions of the Workplace Injury Rehabilitation and Compensation Act 2014 (Vic), including a specific provision which empowered a medical panel to seek further information.[68]
[68]Schmael (n 52) [31]-[35]. Cf City of Melbourne (n 56) [66].

In that context, as I have earlier noted, the plaintiff’s argument tended to emphasise the alleged ease with which contact might have been made with Ms Bird as well as the alleged criticality and centrality of her views. However, the plaintiff made less reference to any operative provisions of the IBAC Act. In large part, that aspect of his argument was directed to the stated objects and functions provisions, as well as the expression ‘in all of the circumstances’ appearing in sub-s 67(2)(g). The argument in respect of that provision linked back to the kinds of considerations referred to in Prasad.[69]
[69]See T21: ‘So in exercising all of its discretion to determine my complaint to determine that, in all of the circumstances of my complaint, they didn’t seek to contact Ms Jennifer Bird. She is such an obvious witness. She’s not hard to find; they have her name, her address, her date of birth, her phone number, her vehicle registration, but they didn’t even try and I say the lack of that effort vitiates the decision-making because how have they taken all of the circumstances into account?’.

In contrast, the defendant drew attention to the overall structure of the IBAC Act as well as various objects, functions and operative provisions.

In that general connection, it is evident that –

(a) the stated objects of IBAC include prioritising ‘the investigation and exposure of serious corrupt conduct or systemic corrupt conduct’ (s 8);[70]
[70]See also the functions of IBAC stated in s 15.

(b) a person may complain to IBAC about conduct the person ‘believes may be corrupt conduct’ (s 51);

(c) such a complaint must be in writing unless IBAC determines that there are exceptional circumstances for a complaint to be made otherwise than in writing (s 53);

(d) a detained person, such as the plaintiff, may make such a complaint (s 54);

(e) IBAC must ‘dismiss the complaint … if there are grounds to do so’ or ‘investigate the complaint’ or ‘make a referral of the complaint’ (s 58);

(f) in certain circumstances, IBAC need not notify the complainant whether the complaint has been dismissed, investigated or referred or, it seems, give any reasons for a dismissal (s 59);

(g) IBAC may conduct a ‘preliminary inquiry’ for the purpose of determining whether to dismiss, refer or investigate a complaint – in connection with which it may issue a witness summons to any person if satisfied that it is reasonable to do so (ss 59A and 59E);

(h) IBAC may conduct an investigation ‘in accordance with its corrupt conduct investigative functions’ (s 60(1));

(i) IBAC must not conduct such an investigation unless it suspects on reasonable grounds that the conduct constitutes corrupt conduct (s 60(2));

(j) IBAC must dismiss a complaint about the conduct of a judicial officer if it directly relates to the merits of a decision, order or judgment made by the judicial officer (s 63);

(k) subject to sections including s 60(2), IBAC may determine, ‘in its absolute discretion’, that a complaint does not warrant investigation (s 67(1));

(l) without limiting the ambit of that discretion, IBAC may so determine if, in its opinion, any identified conditions are present, including that ‘in all of the circumstances, the conduct does not warrant investigation’ (s 67(2));

(m) subject to specified exceptions, if a person who makes a complaint has delayed making that complaint by more than a year after becoming aware of the conduct the subject of the complaint, IBAC may decide not to investigate the complaint (s 67(3)); and

(n) a complaint that is not determined to be a ‘public interest complaint’, is dismissed if IBAC determines that the complaint does not warrant investigation, or decides not to investigate it pursuant to s 67(3) (s 68(1)).

The structure and terms of those provisions seem to me to be of considerable present importance. In particular –

(a) a complaint is identified as based in the ‘belief’ of the complainant;

(b) as such a complaint is ordinarily made in writing, it seems to be anticipated that any substance in the complaint should be able to be examined on its own terms;

(c) it is not necessarily the case that the complainant need be given any reasons or otherwise notified if a complaint is dismissed;

(d) assuming that a complaint is not dismissed, the specified outcomes are investigation or referral;

(e) IBAC is specifically prohibited from investigating unless it suspects on reasonable grounds that the conduct complained of constitutes corrupt conduct;

(f) in that connection, IBAC has an absolute discretion to determine that a complaint does not warrant investigation;

(g) without limitation, such may be determined if IBAC forms any of several identified ‘opinions’; and

(h) if IBAC determines not to investigate, a complaint which is not a public interest complaint stands dismissed.

Such a statutory structure seems to me to repose a discretion of considerable width in IBAC, and to contemplate that a complaint will often – if not ordinarily – be considered and determined on its own (written) terms without any preliminary or other investigation being undertaken.

In that regard, there seems to me to be considerable force in the submission of the defendant that, at least ordinarily –

IBAC was not obligated to start investigating the complaint – by speaking to an alleged potential witness … - before it had determined whether to investigate the complaint. It was well with IBAC’s discretion under s 67 to reach a determination on whether the complaint (on the basis of the material provided …) warranted investigation, without undertaking steps to acquire further information from third parties.[71]

[71]CB 126 [30.1] (emphasis in original).

In light of the statutory structure and provisions to which I have referred, it seems to me that care should be taken not simply to assume, uncritically, that the ‘Prasad principle’ necessarily has any present application. In my view, there must be a respectable argument that, unlike many of the other cases to which I have referred, the detail in the present statutory scheme, as well as the fact that one of the specified outcomes of a complaint is itself investigation, suggests that such a principle should have a limited operation, if any.

That said, the power of IBAC to conduct a ‘preliminary investigation’ may suggest that a principle like that essayed in Prasad could have a zone of potential operation. However, the fact that one of the three specified outcomes of any consideration by IBAC of a complaint is itself investigation, as well as the fact that IBAC is expressly conferred with an ‘absolute discretion’ to determine that a complaint does not warrant investigation, seem to me to suggest that the circumstances in which such a principle could be found to have application must be, at the very least, ‘rare’ and ‘exceptional’.

In the circumstances, without finally determining the point, I will presently assume that such a principle could and did apply.

From that point, however, things do not seem to me to get any easier for the plaintiff.

While the plaintiff submitted that Ms Bird was an ‘obvious’, ‘vital’, ‘critical’ and ‘central’ witness, it will be evident that the ‘Prasad principle’, at least as encapsulated in the above passage from SZIAI, is directed to ‘obvious’ inquiry about a ‘critical fact’ which supplies a ‘sufficient link’ to the outcome so as to constitute an unreasonable failure to exercise the statutory discretion. The circumstances considered by Richards J in Schmael might be thought to stand as a good example of each of those elements.

However, the present circumstances stand quite differently. In particular, the plaintiff’s lengthy ‘draft affidavit’ did not give any great prominence to claims made concerning Ms Bird, or suggest that it was necessary for the defendant to contact her.

In particular, as earlier noted, at [6], the draft affidavit referred relatively briefly to the so-called ‘fresh evidence’ relating to Ms Bird.[72] That document appears to comprise the notes of an attendance on her by two police officers in May 2019.[73] The point highlighted by the plaintiff is that Ms Bird is recorded as having said that the Hetzels were ‘never scared’ of the plaintiff, and others; which is said by him to corroborate his account at the Russell Street bombing trial.
[72]CB 45.
[73]CB 86, 88.

That point was, of course, able to be assessed by the defendant by reference to both the document produced and the plaintiff’s other assertions concerning the verdict of the jury in the Russell Street bombing trial. Accordingly, it was not necessary for the defendant to contact Ms Bird concerning the point in order that it might be considered. Further, it was not then suggested that it was necessary for the defendant to do so.

I should add that the document produced also records various further aspects of concern identified by Ms Bird during her encounter with the two police officers, including that she is ‘still searching for the truth regarding PB [Prue Bird]’.[74] However, no direct reference is there made to Camilleri, and it is certainly not recorded that Ms Bird was of the view that the hearing concerning Mr Camilleri had constituted a ‘fraud on the Court’.
[74]CB 86. Noting, of course, that the evidence at the plea hearing for Mr Camilleri did not disclose how it was that Prue Bird was murdered and that her body had not been found and ‘most likely never will’: Camilleri (n 2) [75]-[76].

The draft affidavit referred to Ms Bird again only at [103].[75] The presently relevant part of that paragraph – which is extracted earlier – amounts to no more than a suggestion that in unspecified reporting in the media, as well as ‘socially in her community’, Ms Bird had pursued a ‘“Craig Minogue and RSB” revenge motive’ as the explanation for the disappearance and presumed murder of her daughter.
[75]CB 69-70.

None of that could be said to favour the plaintiff,[76] or to necessarily exculpate Mr Camilleri.
[76]Cf T10-11.

Further, that a ‘revenge motive’ might have been mentioned by Ms Bird would hardly seem surprising. Among other things –

(a) it is evident from other parts of the draft affidavit that, in February 2012, the plaintiff was questioned by police in respect of the disappearance of Prue Bird,[77] and that media reporting at the time speculated that the plaintiff ordered the murder of Prue Bird ‘as an act of revenge’;[78] and

(b) the so-called ‘fresh evidence’ also records that, at some point, the plaintiff was a ‘suspect’ in relation to the disappearance and murder of Prue Bird in 1992, albeit that he had been ‘incarcerated at the time’.[79]

[77]CB 47 [15].

[78]CB 51 [33].

[79]CB 82.

Such a situation hardly cries out as requiring that the privacy of an unsurprisingly distressed parent be disturbed in order to consider and determine a complaint made by the very person to whom she is said to attribute a ‘revenge motive’. Of course, at that point, at least, it was not suggested that the defendant was required to contact Ms Bird.

That suggestion was first made in the plaintiff’s email to the defendant dated 4 December 2023. As I have earlier noted, that email expressed an ‘honestly held belief’ that, if asked, Ms Bird would confirm that the conviction of Mr Camilleri was a ‘fraud on the Court to falsely convict someone for the murder of her daughter’.[80]
[80]CB 18-20.

At that point, however, the defendant would have been entitled to regard that email as pressing it to inquire about the matters earlier identified in the draft affidavit – particularly, Ms Bird’s asserted belief in a ‘revenge motive’ – which, as I have noted, could hardly be said to favour the plaintiff, or exculpate Mr Camilleri; let alone support any well founded contention that the conviction of Mr Camilleri was procured by fraud.

Considerably later, the plaintiff’s contention in respect of Ms Bird emerged into the form ultimately advanced in argument at the hearing. In that regard, it came to be submitted, in substance, that –

(a) any reasonable person reading Camilleri could only conclude that findings of fact had been made about the plaintiff’s culpability and involvement in the murder – which, the plaintiff said, was an ‘abuse of process’ and a ‘perversion of the course of justice’;[81]
[81]T8-9.

(b) in that connection, Ms Bird had sat through the hearing in Camilleri and concluded that a fraud was being committed on the Court;[82]
[82]T11.

(c) in particular, Ms Bird had said in her victim impact statement that she had lost trust in police because the case against Mr Camilleri was ‘palpably false’;[83]

(d) in the circumstances, Ms Bird was ‘an eyewitness to corrupt conduct’ and so would be able to give evidence about ‘what she [had] witnessed in Court and with police’;[84] and

(e) consequently, Ms Bird was an ‘obvious’ and ‘vital’ witness who had not been ‘hard to find’.[85]

[83]Ibid.

[84]T11-12.

[85]T21.

It will be notable that the above contention includes the suggestion that Ms Bird was an ‘eyewitness to corrupt conduct’ who had come to the view that a fraud had been committed on the Court in Camilleri. It will, however, be evident that no such suggestion appeared with any clarity in the ‘draft affidavit’ or the subsequent email to the defendant.

Further, in my view, the draft affidavit and email could not reasonably be read as putting the defendant on notice of such a suggestion before it later came to be made (after the defendant’s determination and, indeed, after the commencement of judicial review proceedings by the plaintiff).

In any event, the starting point in the plaintiff’s argument seemed to be that any reasonable person reading Camilleri could only conclude that findings of fact had been made about his culpability for and involvement in the murder of Prue Bird.

In developing that argument, the plaintiff went to several paragraphs of Camilleri, albeit in some respects out of sequence and proper context. Further, several of those paragraphs were referred to in terms that were, at least, incomplete.

In any event, it is evident from the early part of the remarks of her Honour in Camilleri that –

(a) the plea hearing occupied 9 days across dates in 2013, prior to the sentencing of Mr Camilleri on 5 December 2013;

(b) Mr Camilleri’s account in respect of the abduction and murder of Prue Bird was plainly in issue;

(c) the Crown contended that Mr Camilleri had been ‘acting with Mark McConville and another and that the abduction and murder was planned’;[86] and

(d) in that connection, the Crown called a significant number of witnesses, particularly, ‘witness M’, ‘witness K’ and ‘witness L’.

[86]Camilleri (n 2) [7].

It is also apparent that there had been a suggestion in the evidence of a motive relating to Paul Hetzel and the Russell Street bombing. In that connection, at [9], her Honour stated –

Likewise, the Crown has not relied upon any cogent evidence concerning the motive for the murder of Prue Bird. It is the fact that Prue Bird was the granddaughter of a woman who was married to Paul Hetzel, who gave evidence on behalf of the Crown in the trial of Rodney and Craig Minogue and others for offences arising from the Russell Street bombing in 1986. Whether retribution be the motive or not, the Crown has not sought to prove it beyond reasonable doubt and I proceed on that basis.

Although the plaintiff tended to submit otherwise, I read that paragraph as making it quite clear, from an early point in her Honour’s remarks, that any suggestion of motive relating to Craig Minogue and others was not found to be proved.

The plaintiff’s draft affidavit included a detailed series of assertions and observations in respect of Camilleri, including that the evidence of motive had not been ‘sufficiently relevant or bona fide’.[87] Indeed, the ‘draft affidavit’ might be thought to go so far as to submit that such evidence was ‘totally irrelevant and inadmissible’.[88]
[87]CB 53 [40] (emphasis in original).
[88]CB 54 [46].

Those propositions were not directly developed in argument at the hearing. However, evidence of motive was plainly relevant to the nature and gravity of the offending, and it is clear enough that some such evidence was given at the hearing.

In that regard, ‘witness M’ does not seem to have given any evidence relevant to the alleged motive, but she was accepted as a witness of truth and her evidence linked Mr Camilleri to relevant events, including a blue car owned by Mr McConville.[89]
[89]Camilleri (n 2) [37]-[45].

The position in respect of the evidence of ‘witness K’ was complicated.

Among other things, witness K gave evidence about Messrs Camilleri and McConville, including a conversation in which Mr Camilleri was said to have said that ‘the girl was a Crown witness who lived in Glenroy’, as well as having been in a car with Messrs Camilleri and McConville in respect to which it was said that Mr Camilleri had said that they were ‘going to look for the girl’. In that connection, among other things, witness K appears to have recalled the street name for the house where Prue Bird lived, the school which she attended and to have identified the house on a photoboard. Witness K seems also to have identified a photo of Mr Camilleri on a photoboard, albeit not at first.[90]
[90]Ibid [46]-[48].

Witness K gave other evidence, including of having been in a shed with a girl named ‘Prue’, that Mr McConville had threatened both of them with a knife and that she had been tied to a tree in a forest when she saw the corpse of a young woman nearby.[91]
[91]Ibid [49]-[54].

In that regard, her Honour records that the evidence of witness K was, in many respects, successfully challenged in cross-examination.

In the course of explaining the difficulties in that evidence, her Honour referred to witness K having said to detectives in 2009 that ‘she, McConville and another male had been driving around the Glenroy area, looking for the girl who was a relative of a witness who gave evidence in the Russell Street bombing’.[92]
[92]Camilleri (n 2). See also [57]-[58].

In argument, the plaintiff suggested that the reference to ‘another male’ was a reference to him.[93] However, read in proper context, it is plain that the reference is to Mr Camilleri.
[93]T5.

Her Honour thereafter refers to various other evidence before referring further to the evidence of witness K and making certain limited findings.[94]
[94]Camilleri (n 2) [59]-[64].

That involved her Honour accepting some parts of witness K’s evidence and rejecting other parts, particularly the evidence relating to her having been locked in a shed with Prue Bird. Such an approach is, of course, a perfectly normal part of fact finding that is often necessary when the whole of the evidence reveals significant conflicts or inconsistencies.

Her Honour’s findings included that witness K had known Mr Camilleri through Mr McConville and had been with Messrs Camilleri and McConville ‘driving around the streets of Glenroy, looking for a young girl’.[95]
[95]Ibid [64(7)].

That particular finding was given prominence in the plaintiff’s submissions and, indeed, was said to have been ‘a finding against me’ and ‘a finding … [of] my … culpability for this murder’.[96]
[96]T4-5.

In proper context, however, no reasonable reader could reach such a conclusion as –

(a) the earlier reference to ‘another male’ is plainly a reference to Mr Camilleri;[97] and

(b) while her Honour obviously accepted that, as a matter of fact, witness K had been with Messrs Camilleri and McConville ‘driving around the streets of Glenroy, looking for a young girl’, any suggestion that the activity concerned was motivated by something to do with ‘Craig Minogue and others’ had earlier been identified as not proved.

[97]So much is make clear beyond doubt in Camilleri (n 2) [64(7)]: ‘she was with you and McConville, on occasions, driving around …”.

Accordingly, as I have indicated, her Honour there appropriately referred to that which she accepted, and not to that which she had earlier identified as unproven.

Her Honour then turned to the evidence of ‘witness L’.

Witness L gave evidence relating to cars, including a blue one with two men in it parked opposite the house of Prue Bird. She also gave evidence of two men at the door of Prue Bird’s house and having seen the car with Prue in it and banging on the back window.[98]
[98]Camilleri (n 2) [65].

Shortly thereafter, her Honour stated –

… Years later, she [witness L] saw a photo which she thought looked very similar to one of the men in the cars, and it was “either Craig or his brother. A photo of both was in the paper that day”. Witness L, at her suggestion, was later hypnotised, but this did not advance her account, other than to say that the number plate of the Ford sedan was “AT or CAK 357” and that it was dark blue. She had written the number down and stuck it on the fridge. She said that she was 90% sure that one of the drivers was Craig Minogue. It is not disputed that Craig Minogue was in custody at the time of Prue Bird’s disappearance, but Rodney Minogue was not.[99]

[99]Ibid [66].

Her Honour then turned to other evidence, particularly concerning the hypnosis of witness L, and explained how it was that, on the evidence, witness L could have referred to ‘Craig Minogue’.[100] No part of that explanation could be reasonably read as her Honour attributing culpability for the abduction and murder of Prue Bird to the plaintiff. Among other things, of course, her Honour specifically noted that the plaintiff was in custody at the relevant time.
[100]Ibid [67]-[68].

Shortly thereafter, her Honour synthesised the accepted aspects of the evidence of witnesses M, K and L, in the course of which she observed that the witnesses ‘do not know each other’. Her Honour then turned to other aspects of the evidence and made findings based in the ‘combined force of the evidence.[101]
[101]Camilleri (n 2) [70]-[75].

The above survey demonstrates that, in my view, there is nothing in Camilleri that reasonably supports the plaintiff’s various assertions that –

(a) findings were made by her Honour in respect of the plaintiff’s ‘culpability’ and ‘involvement’ in the murder of Prue Bird;[102]

(b) the ‘narrative of the whole case’ was about ‘the revenge motive and Craig Minogue and the Russell Street bombing’;[103] and

(c) the ‘proper processes of the Court were abused to cast blame on me and to allege my involvement in this crime’.[104]

[102]T3. See also T4-5.

[103]T7.

[104]Ibid.

Indeed, her Honour seems to have considered the various evidence with great care and, in the course of doing so, made it quite clear that –

(a) the suggested motive was not proven; and

(b) in any event, the plaintiff was in custody at the time at which Prue Bird disappeared.

In that connection, it seems to me to be unremarkable that there might, at some point, have been a suggestion that Mr Camilleri could have been motivated by matters to do with the Russell Street bombing. After all, witness K is recorded as having given evidence of Mr Camilleri saying that he had to ‘knock a girl off’ who was a Crown witness. Witness K seems also to have given evidence that she, Mr McConville and another male (Mr Camilleri) had been driving around Glenroy ‘looking for the girl who was a relative of a witness who gave evidence in respect to the Russell Street bombing’.

It was not said that the evidence to which I have referred was not given by witness K. Instead, as I have noted, the suggestion was that such evidence was ‘insufficient’ to establish a motive linked to the plaintiff. That ultimately proved to be so. However, it does not necessarily follow that going into the hearing, and before witness K gave her evidence and was cross-examined, and all of the other evidence was heard and the relevant witnesses cross-examined, it was not proper for it to be contended that the evidence anticipated to be given might ultimately come to establish that there had been such a motive for the murder.

In short, I cannot accept the submission that the aspects of Camilleri to which I have referred are reasonably indicative of any form of abuse of process or perversion of the course of justice.

For completeness, I should add that I also cannot accept the submission that Ms Bird said in her victim impact statement that she had lost trust in the police because the case against Mr Camilleri was ‘palpably false’.

That submission was advanced by reference to the following paragraph in Camilleri –

Mrs Bird, in her victim impact statement, which she read to the Court, spoke eloquently of the unbearable grief which she has endured. Mrs Bird said that she had written to you twice, asking you to return Prue’s remains so that she could bury her with the dignity that she deserved. Mrs Bird said that, in her despair, she has been taken to the darkest of places and on 2 February 1992, the life she once knew was all gone. She feels disrespected and not heard. She has lost her trust in the police and lost her faith. In her words, you have destroyed her life and given her a life sentence. Through your counsel, you proffered a feeble apology to Mrs Bird that you were genuinely sorry for what you had put her through; hardly an expression of complete contrition and remorse. True it is that since Mrs Bird addressed you directly when reading her victim impact statement, you have cooperated with the authorities in making yourself available to the police and accompanying them to the site of the old Frankston tip and endeavouring to identify the location where you say you disposed of Prue Bird’s body. Such cooperation may, of course, be entirely self-serving or may be genuine. Nonetheless, you did cooperate with the authorities to that extent, and such cooperation may be consistent with some compassion for Mrs Bird’s position and with some very, very qualified remorse.[105]

[105]Camilleri (n 2) [77].

One can only have the greatest of sympathy for the suffering there described.

In any event, it will be evident that there is nothing in that paragraph which would reasonably suggest that Ms Bird lost trust in the police because the case against Mr Camilleri was ‘palpably false’. In particular –

(a) it hardly seems likely that Ms Bird would have written to Mr Camilleri in the terms identified, or accused him of having destroyed her life and given her a life sentence if, in fact, her state of mind was that he had not committed the crime of which he had been accused; and

(b) nothing there would reasonably suggest that Ms Bird formed the view that the hearing in which she participated, and evidently read out her victim impact statement, was a ‘fraud’.

That brings me to the alleged criticality of Ms Bird as an ‘eyewitness’ to ‘corrupt conduct’.

In that regard, it will be evident from much of what I have already said that the suggestion is unsupported by any reasonable view of the material on which it was purported to be based, particularly the sentencing remarks in Camilleri.[106]
[106]I have also referred earlier to the content of the so-called ‘fresh evidence’ relating to Ms Bird.

As I have endeavoured to explain, the remarks made in Camilleri are in unremarkable terms that go nowhere near supporting the plaintiff’s contention that the hearing was affected by fraud or a perversion of the course of justice.

I should add, however, that the contention that Ms Bird should have been contacted because she was an ‘eyewitness’ to ‘corrupt conduct’ seems to me to be problematic for at least one further and quite fundamental reason.

When the events of Supreme Court proceedings are sought to be examined for any reason (most usually, in the course of an appeal), that is practically always done by reference to the record of the trial – particularly the transcripts of hearings, any exhibits received and any reasons for judgment – and not by calling evidence from people who sat in the body of the Court during the trial.

The reasons for that are manifold, particularly when the trial in question –

(a) occupied multiple different periods and days of hearing; and

(b) occurred upwards of a decade ago.

In that connection, experience demonstrates that the unaided recollections of participants in trials of some antiquity are regularly imperfect, including those of the legal practitioners involved, let alone those of unqualified persons who sat in the body of the Court during the trial, presumably without access to the transcript and exhibits.

In light of the above, the suggestion that Ms Bird was a ‘critical’, ‘vital’ and ‘obvious’ witness in respect of the hearing concerning Mr Camilleri cannot be accepted.

It follows from the above that –

(a) there is a respectable argument that the ‘Prasad principle’ has no application to the present circumstances;

(b) in any event, the ‘draft affidavit’ referred to Ms Bird only briefly and it was not then suggested that any inquiry should be made of Ms Bird;

(c) that suggestion came in the subsequent email, but the points made in respect of Ms Bird remained of little apparent cogency or significance;

(d) it follows that there could have been no ‘legal unreasonableness’ in the defendant failing to inquire of Ms Bird;

(e) after the defendant determined the plaintiff’s complaint, and the plaintiff commenced proceedings seeking judicial review, the plaintiff came to develop the contention that it had been ‘obvious’, ‘critical’ and vital’ to contact Ms Bird because she had been an ‘eyewitness to corrupt conduct’ and had concluded that the hearing in respect of Mr Camilleri was a ‘fraud’;

(f) that contention is not supported by any reasonable consideration of the attendant circumstances, especially the content of her Honour’s sentencing remarks in Camilleri;

(g) specifically, the circumstances do not reasonably suggest that the failure of the defendant to inquire of Ms Bird amounted to a failure to make an obvious inquiry about a critical fact the existence of which is easily ascertained and that could supply a sufficient link to the outcome;

(h) in that regard, the present circumstances are quite unlike those considered in Schmael and much more like those considered in SZIAI;

(i) in particular, there is nothing that suggests that there is any realistic possibility that inquiry of Ms Bird could have ‘led to the exposure of corrupt conduct’ or any different decision by the defendant;[107]

(j) consequently, even if the later version of the plaintiff’s argument be considered, there remained no ‘legal unreasonableness’ or material error in the defendant failing to inquire of Ms Bird; and

(k) it follows that the plaintiff’s various contentions that the decision of the defendant is vitiated by a failure to attempt to inquire of Ms Bird must be rejected.

[107]Cf LPDT (n 42) [7], [14], [16].

It will be evident from what I have earlier said that the plaintiff’s originating motion, as well as aspects of his written argument, sought to advance a broader contention to the effect that no person acting reasonably and within jurisdiction could possibly have decided, on the evidence provided, that the plaintiff’s complaint did not warrant investigation.

In that general connection, the plaintiff advanced the points to which I have already referred, but also sought to emphasise the so-called ‘fresh evidence’ and submitted that ‘[n]o one believes Camilleri was guilty’ and ‘Victoria Police themselves say it’.[108]
[108]T12.

The so-called ‘fresh evidence’ was, of course, included with the ‘draft affidavit’ and was therefore before the defendant and did not lead to the plaintiff’s complaint being investigated. I do not consider that to have been relevantly unreasonable, or otherwise in error.

In that regard, for reasons already identified, the circumstances do not reasonably support the view that a fraud on the Court took place in the hearing relating to Mr Camilleri.

Nor, in my view, did any of the so-called ‘fresh evidence’[109].
[109]CB 77-92.

In that connection, I have already referred to the document relating to Ms Bird as well as the letter said to be from an inmate (which, quite frankly, is largely incoherent).

In any event, in argument, the plaintiff tended to emphasise a particular part of the so-called ‘fresh evidence’ relating to him, as well as a document apparently relating to his brother, Rodney Minogue.

The presently relevant part of the documents relating to the plaintiff seem to comprise the ‘comments’ attributed to an unidentified ‘analyst’. Among other things, it is there stated that the plaintiff was a suspect in relation to the disappearance and murder of Prue Bird and that Mr Camilleri ‘most likely did not commit this murder’. However, the latter opinion seems to be based, at least in significant part, upon unspecified ‘intelligence’ identified as speculation and surmise. Further, the only relevant date given seems to post-date the conviction and sentencing of Mr Camilleri (as does the document itself).[110]
[110]CB 82.

The document relating to Rodney Minogue also post-dates the conviction and sentencing of Mr Camilleri and, among other things, states that ‘[i]t has is [sic] strongly believed that CAMILLERI did not commit this crime’. However, the basis for the stated belief is unclear, as is the identity of the person who held it and whether it was held at the date of the document or historically.[111]
[111]CB 84.

More broadly, it will be plain that the documents to which I have referred cannot realistically be said to indicate any institutional or concluded view of Victoria Police that a fraud on the Court took place in the hearing relating to Mr Camilleri.

For completeness, I should note that, while the plaintiff was strongly critical of the delegate’s reference to the plaintiff’s ‘privacy and reputation’ – and, indeed, went so far as to describe it as a ‘dishonest strawman’ – that consideration seems to me to have been correctly considered as a consequence of the provisions of the Charter.

Further, and in any event, it is quite plain that the delegate understood that the plaintiff’s complaint included several allegations that Camilleri constituted a corrupt ‘faux trial’ against him.

In the circumstances, the plaintiff’s various contentions that the defendant’s decision not to investigate and therefore dismiss his complaint is vitiated by error must be rejected.

E Conclusion

The proceeding must be dismissed.

I will hear from the parties concerning the proper form of orders, as well as any other issues, including costs.

[2025] VSC 197

16 April 2025