DEPUTY Commissioner Nick Kaldas has claimed the former NSW Ombudsman Bruce Barbour referred him for possible criminal charges in an act of retaliation and wants him investigated for alleged bias.
A submission by lawyers for Mr Kaldas contains sensational criticisms of Mr Barbour including that he was wrong to “secretly” tell Police Commissioner Andrew Scipione that he had referred Mr Kaldas to the Director of Public Prosecutions for advice on charging him.
Not only was Mr Scipione a witness alongside Mr Kaldas in Mr Barbour’s Operation Prospect investigation into a notorious police bugging scandal, it is illegal under the Ombudsman Act to disclose material in this way, the submission claims.
The submission alleges that only two places knew of the decision to refer Mr Kaldas to the DPP — the Ombudsman’s office and the DPP’s office.
“There is no suggestion that the leak came from the DPP’s office,” it states.
The submission claims that Mr Barbour referred Mr Kaldas to the DPP in November last year just five days after the decision to hold the parliamentary inquiry, for which Mr Kaldas lobbied, and raises the question about whether it was a “retaliatory action taken in displeasure at Mr Kaldas.”
The submission is the latest made by Mr Kaldas to the parliamentary inquiry which is examining why Mr Barbour’s investigation remains incomplete after over two years and almost $5 million and looking into the leaking to the media of the information about Mr Kaldas’ referral to the DPP.
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It alleges Mr Barbour has “tainted” the office of the Ombudsman, has lied or misled parliament and could face criminal charges himself.
“Mr Barbour took the extraordinary step of confiding in a witness (Mr Scipione) in the inquiry as to an action that he was taking against another witness,” the submission states.
“This inappropriate step hopelessly compromised Mr Barbour and directly calls into question his impartiality.”
It was Mr Scipione who revealed the secret meeting with Mr Barbour to the parliamentary inquiry. He is not criticised in the submission and has said he told no-one about the information Mr Barbour gave him.
The submission also calls for Mr Barbour to be investigated and consideration being given to him being referred to the DPP himself if the parliamentary committee finds he has lied or misled them.
He told the committee three times that he had come to no conclusions nor made any findings as a result of Operation Prospect- yet he had already referred Mr Kaldas to the DPP, the submission states.
Mr Barbour also told the committee that he did “not engage in private individuals who are involved in this matter to discuss any issues the subject of my inquiry” — yet he had already spoken to Mr Scipione.
“There has been a lack of clarity and candour — and perhaps even been misleading conduct — in Mr Barbour’s evidence and written information to the committee in respect of the referral,” the submission states.
Mr Barbour retired as Ombudsman at the end of his $410,000 plus-a-year contract on June 30 despite being asked to stay on and complete Operation Prospect. He has denied he was “cutting and running.”
Mr Kaldas’s submission states that Operation Prospect is now so tainted by Mr Barbour’s apprehension of bias it has to be scrapped and begun again.
It is the latest fallout of the government’s decision to ask the Ombudsman to set up Operation Prospect to investigate the 15-year-old police bugging case that has dogged the force and also to investigate whistleblowers who leaked material about a subsequent police internal inquiry to media outlets.
The bugging scandal that has dragged on since 2000 involved Mr Kaldas, then head of homicide, and over 100 other officers and a journalist being placed under surveillance by a police internal affairs operation under Special Crimes and Internal Affairs overseen by his now fellow Deputy Commissioner, Catherine Burn.
Mr Scipione became head of SCIA in 2001 and both he and Ms Burn have given evidence to the parliamentary inquiry.
Mr Kaldas’ submission claims that Operation Prospect is no so tainted by Mr Barbour’s apprehension of bias that it must be scrapped and begun again and it would be nearly impossible for the new Ombudsman to take it over.
Mr Barbour had sought advice about whether Mr Kaldas could be criminally charged for allegedly misleading Operation Prospect about the source of some documents. Mr Kaldas later said he was trying to protect the source.
The director of criminal investigations for the NSW Crime Commission, Tim O’Connor, has told the parliamentary inquiry that the reporter who wrote the April article in The Sydney Morning Herald had told him that he had spoken to someone in the Ombudsman’s office and that they “regarded the charging of Kaldas as a victory for the inquiry.”
“Such an attitude speaks of an investigation that has become tainted by an unacceptable bias or at least gives rise to an apprehension of bias,” Mr Kaldas’ submission states.
No charges have been laid and there is no suggestion Mr Kaldas has committed any crime.
Mr Kaldas claims he was denied procedural fairness because he was never given the chance to answer any “findings” by Mr Barbour.
“Should the committee be satisfied that there is a sufficient basis for finding that any witness may have given false or misleading evidence to this committee on oath or affirmation then this committee may refer the matter to the DPP for consideration of an appropriate charge,” the submission states.
Timeline (according to the submission of Mr Kaldas)
October 11 2012. Operation Prospect began.
November 12, 2014. The select committee on the conduct and progress of Operation Prospect was established.
November 19, 2014. Mr Barbour referred Mr Kaldas to the DPP for advice on whether he should be prosecuted in relation to evidence he gave to an Operation Prospect hearing.
That same day, Mr Barbour told the committee: “I have quite properly at this stage of the investigation reached no firm conclusions and made no findings on the evidence.”
December 9, 2014. Mr Barbour met with Mr Scipione and told him about his decision regarding Mr Kaldas.
January 28, 2015. Mr Barbour told the committee he had still reached no conclusions or findings.
February 3, 2015. Mr Barbour told the commission he had made no findings and did not “engage in private meetings with individuals who are involved in this matter to discuss any issues the subject of my inquiry.”
April 17, 2015. The Herald published the article that the Ombudsman had sought advice about charging Mr Kaldas.
June 18, 2015. Mr Barbour told the committee that his staff had no spoken to the journalist and had sworn statutory declarations in that regard.
June 25, 2015. A statutory declaration was made by one person from the Ombudsman’s office to say he did talk to the journalist on April 1 but not about Operation Prospect.