Deputy police commissioner Nick Kaldas has launched a fresh attack on former NSW ombudsman Bruce Barbour over his investigation of a police bugging scandal, declaring he has demonstrated bias and has "tainted" the office.
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In a submission to a parliamentary inquiry published on Wednesday, Arthur Moses, SC, on behalf of Mr Kaldas, argues Mr Barbour's investigation, Operation Prospect – which has already run for more than two years – is "invalidated and must be held again afresh."
The submission says Mr Barbour's actions in referring Mr Kaldas to the Director of Public Prosecutions for potential criminal charges have been "possibly unlawful" and potentially defamatory of Mr Kaldas.
It accuses Mr Barbour of making the referral in retaliation for the establishment of the parliamentary inquiry to examine the conduct of his own investigation.
But acting Ombudsman Chris Wheeler has hit back, arguing that the accusation of bias is "without merit".
"If deputy commissioner Kaldas believes otherwise upon advice, it is open to him to pursue the matter in a court of law, which is the proper forum for such allegations to be determined," Mr Wheeler says.
The inquiry is being held after a Fairfax Media article in April revealed Mr Barbour was considering seeking advice from the DPP about Mr Kaldas.
The article outlined an allegation that Mr Kaldas misled Mr Barbour's office about the source of documents given to him about the bugging operation, codenamed Mascot.
Mr Barbour's Operation Prospect has been investigating the scandal over Mascot, which ran between 1999 and 2001.
Mascot used a corrupt policeman, codenamed M5, to target allegedly corrupt police and a journalist with a listening device.
Mr Kaldas was bugged by Mascot, of which his fellow deputy commissioner Catherine Burn was team leader.
At a hearing of the parliamentary inquiry in June, Mr Barbour disclosed to police commissioner Andrew Scipione that he had referred the matter to the DPP in relation to allegedly misleading the inquiry into the bugging.
Mr Kaldas' submission states this was "inappropriate" and possibly unlawful as Mr Scipione was himself a witness in Mr Barbour's investigation.
It says that Mr Barbour's decision to refer Mr Kaldas to the DPP before his inquiry was complete "demonstrates that Mr Barbour may have already reached a final view in relation to Mr Kaldas' actions and credibility."
The submission argues that the parliamentary inquiry should find that the leak of the information to Fairfax Media about the referral of Mr Kaldas to the DPP came from the Ombudsman's office.
But Mr Wheeler says this is "baseless" because the journalist who wrote the story, Nick McKenzie, had already told the inquiry the information did not come from the Ombudsman's office.
He suggests the starting point for any investigation should be the inquiry members themselves, who were informed that a witness in Operation Prospect had been referred to the DPP prior to the leak.
Mr Barbour chose not to renew his term when it expired on June 30.
