Tasmania Police has announced an independent review after it was revealed officers secretly recorded private and legally privileged conversations between lawyers and clients at Risdon Prison for months while trying to make a case against convicted murderer Susan Neill-Fraser's lawyer.
Police bugged a meeting room at the prison in Hobart on June 15, 2017, to record a meeting with lawyer Jeffrey Ian Thompson the next day but then failed to switch off the recording devices — one recording audio and video and the other just audio — for two months.
Justice advocates have said the surveillance amounted to a "serious violation of confidentiality" and have called for a commission of inquiry.
Police were investigating Mr Thompson over allegations he planned to pervert the course of justice.
A judgement that was suppressed until yesterday revealed that last month a Supreme Court judge found police had reasonable grounds to seek a warrant from a magistrate to bug the meeting room, but the warrant ultimately failed to respond to privacy risks.
It meant the secretly recorded evidence of Mr Thompson's meeting with potential key Neill-Fraser witness Stephen Gleeson could not be admitted in court.
The charge against Mr Thompson was dropped.
Intercepted phone call led to recordings
In 2017, Mr Thompson was working on Susan Neill-Fraser's court appeal, which ultimately failed.
The court heard police had intercepted a call involving Mr Thompson when they learned of his upcoming meeting with Mr Gleeson at Risdon Prison.
According to the judgement, police alleged Mr Thompson planned to use this meeting to indicate to Mr Gleeson which photograph to identify on a photo board.
Police applied for a 90-day warrant to bug the meeting room.
The judgement said police were recording all meetings in the room for two months using two devices.
At least five members of the police investigation team had access to the recordings, and technical services officers could have accessed the material upon request.
The decision noted that Constable Adam Jago, who applied for the warrant, told the court police did not monitor any of the other conversations and no other material was downloaded.
No other members of the investigation team were called to give evidence.
In a decision last month, Justice Michael Brett said while there was no evidence that other recorded meetings had been accessed, there was still "that potential".
Justice Brett found the warrant should have been far narrower to only allow the recording of the meeting between Mr Thompson and Mr Gleeson, and the privacy issues meant the evidence could not be used.
He described the wording of the warrant as "ambiguous" and said this should have been addressed by the magistrate who approved it.
"Both officers were aware, and the magistrate must have been aware, that the professional meeting rooms in question would in the usual course be utilised by lawyers and clients to conduct conversations protected by legal professional privilege," he wrote.
"There was a high probability of many such meetings over the proposed life of the warrant, 90 days."
The decision noted that the officer who installed the devices — identified only as officer A — told the court one of the devices could be switched off remotely, but the other could not.
He said they were both left running in case "technical issues" came up and if there were difficulties in getting into the room at short notice.
Justice Brett found that prison officers had control over when Mr Gleeson was available for a meeting, and police would have had enough notice to get into the room and make sure it only recorded this one conversation.
Police announce 'independent review'
In a statement today, Commissioner Darren Hine said while it was a "technical breach" of the legislation and other conversations not covered by the warrant were not listened to, "we acknowledge the importance of our community having trust and confidence in our organisation".
"As such, we have taken immediate steps to address the issue identified and a review of procedures to ensure there is clear guidance to police officers in relation to the use of surveillance devices has been completed," he said.
"In addition, today I am announcing an independent review by former Solicitor-General Michael O'Farrell SC of this matter to ensure appropriate processes have been followed."
Commissioner Hine said the report "will be made public."
'Serious violation of confidentiality'
The Tasmanian Prisoners Legal Service and the Australian Lawyers Alliance (ALA) have called on the state government to hold a commission of inquiry into Tasmania Police practices in relation to seeking and executing warrants for the use of listening devices.
Barrister and ALA spokesman Fabiano Cangelosi said Justice Brett's findings were concerning.
"The findings indicate that Tasmania Police engaged in a gross violation of confidential communications between inmates of Risdon Prison and their legal representatives," he said.
Mr Cangelosi called on any lawyers who saw a client in Risdon Prison during the surveillance period, between June 15 and August 17, 2017, to review their matter and see if their confidentiality had been breached.
He said the police conduct amounted to "a serious violation of confidentiality and privilege".
"Such violations have the potential to interfere with the administration of justice in a most serious way," he said.
Mr Cangelosi was also concerned that the court only heard from one surveillance specialist, and it was unclear whether others who potentially had access to the material had given a guarantee they had not accessed it.
Prisoners Legal Service spokesman Greg Barnes said other private conversations may also have been recorded.
"You also have other professionals such as psychiatrists and psychologists who go and visit prisoners and of course they're revealing very personal information," he said.
Tasmanian Greens Justice spokeswoman Rosalie Woodruff called the revelations "extremely disturbing" and called on Police Minister Felix Ellis to provide clear information about how it happened and what would be done to prevent it happening again.
Mr Ellis has been approached for comment.
Susan Neill-Fraser is serving a 23-year sentence after being found guilty of murdering her partner Bob Chappell, 65, on board their yacht the Four Winds, which was moored off Sandy Bay on Australia Day 2009.
Mr Chappell's body has never been found, nor has a murder weapon ever been located.
The case has been the subject of extensive media interest and a campaign by those who believe Neill-Fraser is innocent for her to be freed.
Neill-Fraser is now eligible to apply for parole.
