How a family business was killed off by a Slug, Dr Brett Sutton and Corruption.

On 13 January 2019 an 86 year old woman was admitted to the Knox Private Hospital in Wantirna with diarrhoea and other symptoms consistent with food poisoning.  This woman had battled Ischaemic Heart Disease for 15 years. She lived alone in a retirement home and no-one knew what she had eaten shortly before she entered the hospital.

Although she entered the hospital with clear symptoms of food poisoning, the elderly woman wasn’t tested for listeria for many days after her first admission, as indeed she should have been.  Finally, she was tested on the 23rd of January, 2019. She tested positive for listeria monocytogenes.  Media reports and speeches in the Victorian Parliament subsequently confirmed that the treatment she then received, medicine for the listeria monocytogenes while in hospital, was successful and further blood tests showed she was clear of any listeria.

As was required by law, the listeria was reported to the Department of Health and Human Services.

The Health Department did an investigation to find out what the woman had eaten in hospital.  The investigation included the patient’s daughter.  The daughter said her mother liked eating sandwiches.  Two and a half years later, the daughter would change her story and claim she saw her mother eating a sandwich she believed was from I Cook Foods, in the hospital’s Emergency Department.

Throughout her stay in the hospital the elderly woman was on a soft food diet, meaning she was not to be given sandwiches, unless they were made by the hospital. Moreover, the sandwiches in the hospital’s Emergency Department were not the type of sandwiches from I Cook Foods which the Department later falsely claimed were connected to the elderly woman’s death.

Despite knowing the elderly woman was on a soft food diet and would not have been given a sandwich from I Cook Foods, the Department of Health and Human Services still asked the City of Greater Dandenong to investigate I Cook Foods.   A council officer, Kim Rogerson, then took samples of the sandwiches and sandwich ingredients and swabs of the food preparation area.

The 86 year old woman subsequently, tragically died of acute pulmonary oedema  caused by Ischaemic Heart Disease. The death certificate noted that the 86 year old woman had suffered from this condition for many years, and crucially, her death certificate made it clear that she did not die from Listeria Monocytogenes at all.

The death certificate stated she had died with listeria, and not from listeria. But even this wasn’t accurate. In fact, results from the woman’s blood tests show that she was completely free from listeria at the time of her passing.

On the 18th of February 2019 the Department of Health and Human Services told Dandenong Council that several of the food samples taken from I Cook Foods had tested positive for Listeria Monocytogenes. Crucially the Department didn’t indicate the level of listeria, because at that stage, nobody knew.  The vital tests required to know this information had not been conducted, and wouldn’t be conducted until after the I Cook Foods business had been closed on the orders of the Chief Health Officer, Brett Sutton.  These tests should have been done before I Cook was closed.

Later that same day, City of Greater Dandenong Environmental Health Officer (EHO) Elizabeth Garlick attended the premises at 2/12 Zenith Road, Dandenong South, Victoria.

Most unusually Garlick was not wearing her body-camera during this visit. This was highly unusual given that Garlick did wear her body camera during every other visit she made to I Cook Foods, and also that she claimed under oath during a Victorian Parliamentary Inquiry that she wears a body-camera during inspections as a personal security measure.

During this visit on 18th of  February 2019, Garlick claimed to have found a live slug in a corner of the premises. She took several photos of the slug but then left the slug where she claimed to have found it.

Crucially, there were no slug trails around the slug, and the photos taken by Garlick also do not show any slug trails. The type of slug, limas maximus, is nocturnal, and simply shouldn’t be moving around during the day. Limas maximus is commonly known as the Leopard Slug and the slug Garlick took photographs of was identified as such by the Museum of Victoria.

Further, I Cook Food’s long standing pest controller, Hayes Pest Control, had attended the food premises only 3 days prior and had not seen any indication whatsoever of any slug activity. The floor was also chemically washed every day.

It would later emerge that two other food businesses which had been inspected by Garlick believed she had used allegations concerning rodents to close them down. One alleged that Garlick had planted a dead mouse at their premises.  The other claimed Garlick had said there was a dead mouse under a piece of machinery, and even briefly showed the business owner a photo of a dead mouse on her phone.  When the machinery was later removed there was no dead mouse under it, and no signs of anything that might confirm the dead mouse ever existed.  Both businesses were destroyed by Garlick’s health and safety inspection reports.

On the 19th of  February 2019, Garlick came back to the I Cook Foods facility and immediately served an Order pursuant to sections 19(1) and 19(2) of the Food Act.  To be lawful, this document needed to be signed off by the Council CEO or the Council as a whole.  An Environmental Health Officer can’t do it alone.

The unlawfully made Orders which were served on 19^th February 2019 claimed there was 37 things the Council required I Cook Foods to fix or clean up. This was both strange and indeed inconceivable. For a start, I Cook Foods had been routinely inspected by Council for many years.  Additionally, I Cook Foods had been audited by Council only weeks earlier and none of these issues were raised at that time.  Moreover, the concerns raised by Garlick were also not reflected in Garlick’s contemporaneous written notes, copies of which were subsequently obtained by I Cook Foods.

Garlick also served on I Cook Foods an Order under Section 19W of the Food Act which said that all staff needed to undertake food safety training. But this had already occurred. Full records of the staff training which were an integral part of the I Cook Foods safety protocols were contained in I Cook Food’s food safety training records. However Garlick never asked to see these records. She just falsely claimed that the training had never occurred.

On the 20th and the 21st of February, 2019, Garlick returned to the I Cook factory, this time with her immediate boss, Leanne Johnson, Co-ordinator of Public Health, for the City of Greater Dandenong.

On the 21st of February, 2019, at 12.08pm Johnson illegally verbally shut I Cook Foods in Dr Sutton’s name.

Then at 8.21pm on the 21st February 2019, an email was sent to then Acting Chief Health Officer, Dr Brett Sutton, amongst others.  It was written by an employee of Dr Sutton’s Department, Finn Romanes and recommended that Dandenong Council issue a closure order.

At 9.30pm on 21 February 2019, Dr Sutton and the Chief Executive Officer of the City of Greater Dandenong, John Bennie, spoke by telephone.  During the telephone call Bennie claimed he could not issue the Closure Order on I Cook Foods because Bennie was on the Board of Community Chef and therefore had a conflict of interest. Sutton’s Department of Health and Human Services had also invested millions in Community Chef, and therefore Dr Sutton very obviously shared the same conflict of interest.  Regardless, at about 10.00pm, on 21 February 2019, Dr Sutton signed and issued the Closure Order in his own name.

Early in the morning on 22 February 2019, the Closure Order was stuck up on the window of I Cook Foods as required by Victorian law.

That same morning, the 22^nd of February, 2019, the Board of Community Chef met at the RACV City Club on Bourke Street, Melbourne at 9.30am.

It’s recorded in the minutes of that meeting that from 10.10am to 12.45pm the Board meeting was suspended for a ‘Business SWOT Analysis session.’  (“SWOT” stands for “strengths, weaknesses, opportunities and threats”.)  Clearly I Cook Foods had been a threat.  Now the Ordered closure and destruction of I Cook Foods long-standing business created a new and huge commercial opportunity for Community Chef.

The minutes from the Community Chef Board Meeting record that John Bennie told the Board that a Closure Order had been served on I Cook Foods. This was effectively “insider trading”. The Board agreed that they should contact the Municipal Association of Victoria and ask them to get in touch with all of I Cook’s customers.  This is before any other manufacturer knew what had happened.

Crucially it was not until 2:30 PM that afternoon that I Cook Foods was publicly and albeit falsely, named as a potential source of a ‘listeria outbreak’.

Dr Brett Sutton made these false claims at press conference which was widely reported in the Victorian and National media and even some international Media.

On 23rd of February 2019 Sutton’s Department issued a varied Closure Order, of the same date, on I Cook Foods.  This order added further requirements which prevented I Cook Foods from re-opening.   But then, on the 28th of February 2019, results of tests ordered by Sutton’s Department revealed that the level of Listeria Mono detected in food samples taken from I Cook Foods was less than 10 Colony Forming Units.  In simple terms this means that the samples taken from I Cook Foods were ten times safer than they were required to be by law.

However, these results were hidden from I Cook Foods by Paul Goldmisth, the lead investigator from the Department of Health and Human Services for a number of weeks, by which time I Cook Foods had lost all its contracts.

On the 12th of March 2019, I Cook Foods commenced proceedings against the Department of Health and Human Services in the Melbourne Magistrates Court seeking a judicial review of the varied Closure Order, which the Department had issued to prevent I Cook Foods from re-opening. There was a strong media presence in court that day.

The matter was set to be heard again on the 8th and 9th of May.

But before the varied Closure Order could be reviewed by the court, it was revoked by Sutton’s Department, meaning evidence was never heard in an open court, where people are under oath.

On the 2nd of April, 2019, the Chairman of Community Chef,  John Christophersen wrote to Denise Laughlin who was Acting Assistant Director of the Department of Health and Human Services. In this letter, Community Chef indicated an intention to draw down $800,000 of a $1 million loan facility and requested further funds from the Department of Health and Human Services. No reason for the $800,000 drawdown was provided by Community Chef in this letter.

Despite there being no explanation as to what this money was for, the additional funds were subsequently provided to Community Chef by the Department of Health and Human Services.

In April 2021, I Cook Foods was told by lawyers acting in another matter, that Dr Sutton was suspected by Victoria Police officer Detective Sergeant Ash Penry allegedly paid $800,000 to shut down I Cook Foods.

The lawyers who provided this information independently to I Cook Foods were not aware of the letter written by Community Chef to Denise Laughlin from the Department of Health and Human Services which detailed the need for the $800,000 drawdown.

I Cook Foods has no direct knowledge of whether Dr Sutton received any or all of this $800,000, but there is significant circumstantial evidence that supports the need for this unaccounted $800,000 to be investigated in forensic detail.

Firstly, a Community Chef Board paper obtained by I Cook Foods from the same period makes mentions of the $800,000 drawdown, but again fails to identify or specify the intended use of this money.

Secondly, the lawyers who informed I Cook Foods of the alleged bribe are currently seeking documents under Victoria’s Freedom of Information laws which relate to “the questioning of Dr Sutton by Victoria Police between June and August 2020”.   

Victoria Police are aggressively opposing this FOI Application, claiming the documents are exempt from FOI.  Victoria Police is neither denying, nor confirming, the existence of any such documents.

Having failed to destroy Ian Cook and I Cook Foods through the illegal and illegitimate Closure Orders, the City of Greater Dandenong and the Department of Health and Human Services changed their tactics.  This time, they had decided to use the criminal courts.  The initial plan was to charge and potentially jail Ian Cook over false food safety breaches.

On the 7th of June 2019, I Cook Foods and Ian Cook were each served with 48 separate charges for offences under the Food Act. The Brief of Evidence used in this matter included photos of the live slug which was allegedly planted at the premises. The photos had been altered by the City of Greater Dandenong to remove a small white item which appears to be a fragment of facial tissue. Garlick had been seen carrying a number of tissues in the front pocket of her smock on the day the slug was “discovered”.

Former City of Greater Dandenong inspector, turned whistle-blower, Kim Rogerson, later provided police with a sworn affidavit stating that she witnessed Elizabeth Garlick altering the image of the slug and its surroundings on Garlick’s work computer.

The Brief against I Cook Foods and Ian Cook also included video from body worn cameras taken during various inspections of the Food Premises. Although it should be noted there was no video from Garlick’s inspection on the 18^th of February, 2019, because she mysteriously didn’t wear a body camera during that inspection when she claimed to have found the slug.  The video footage presented to the court in the criminal matter had been edited by the City of Greater Dandenong. The metadata of that video indicates that the video was modified by Garlick in March 2019. Former Environmental Health Inspector Kim Rogerson provided Victoria Police with a sworn statement indicating she saw Elizabeth Garlick editing the body camera vision.

On the 3^rd of October, 2019, lawyers acting for I Cook Foods served a subpoena on the City of Greater Dandenong for the production of documents. Specifically, the Council was told that it would be required to provide unedited copies of the photos and body camera videos relied on by the informant in the prosecution.

Once Council realised this, it dropped all 96 charges against Ian Cook and I Cook Foods.

So far, Ian Cook is absurdly the only person ever to face any criminal charges in relation to the illegal closure of I Cook Foods.  That’s despite the fact that Ian was the victim.

On the 14^th of November, 2019, I Cook Foods met with members of the Dandenong Crime Investigations Unit. The officers involved were Detectives Ash Penry, Rick Mokos and Mark Hawker.

After this meeting, I Cook Foods prepared a lengthy 16 volume brief of evidence, which included video and audio clips saved on a computer hard drive.  The brief of evidence was created with the extraordinary assistance of retired Victoria Police Detectives Paul Brady and Rod Porter.  Neither man was paid for their work, with both men volunteering to work for more than a year because they were so concerned that a major miscarriage of justice had occurred.

The Brief of Evidence was collected by Det. Snr. Sgt Penry on the 24^th of May, 2020.  In a Briefing Note to his superiors, dated 22^nd of June 2020, Det. Snr. Sgt Penry commented ‘it is apparent that the prosecution of iCook Foods was malicious’ . He recommended ‘that this matter continue to be investigated to identify any alleged corruption or misuse of office.’   He also listed a number of “persons of interest” including Council CEO John Bennie, Council Inspectors Elizabeth Garlick and Leanne Johnson as well as the Victorian Chief Health Officer, Dr Brett Sutton.

On the day that Briefing Note was sent to his bosses, Snr. Sgt Penry was informed that he was to be taken off the investigation and was subsequently sent on forced leave.  Snr. Sgt. Penry was informed that the brief would now be sent to Det. Insp. Kerr at Moorabbin CIU for independent assessment.

During his period of investigation, Det. Insp. Kerr gave I Cook Foods numerous indications that he understood that crimes had occurred and prosecutions were required. However, Det. Insp. Kerr was also subsequently sent on forced leave and then on 20 August 2020, I Cook Foods was informed that Det. Sgt. Chris Lewis from Casey CIU would now investigate the matter.

During the period of investigation by Det. Sgt. Lewis, he was also sent on forced leave, thus further delaying the investigation.

Finally, on 31 March 2021 Det. Sgt. Chris Lewis and his immediate superior, Det Snr. Sgt Glen Cruse met with I Cook Foods to state that the investigation had now been closed and no charges would be laid.

However, when Det. Sgt. Lewis returned the brief of evidence, a digital copy of the Briefing Note written by Det. Sen. Sgt. Ash Penry, which named Dr Sutton as a “person of interest”, had been inexplicably saved to I Cook Foods external hard drive.

Details of this Briefing Note was reported in the Herald Sun newspaper on the same morning that Victoria Police Chief Commissioner Shane Patton was appearing on Melbourne radio station 3AW.  When asked about the “Briefing Note” and the decision to close the police investigation, the Chief Commissioner declared he would have an investigation into whether the investigation should be re-opened.

The investigation was subsequently re-opened and the Chief Commissioner has been briefed on the finding. I Cook Foods is now waiting to hear from the Chief Commissioner.  No arrests of any persons of interest have been made.

With the criminal charges against Ian Cook and I Cook Foods abandoned by Dandenong Council, I Cook Foods commenced proceedings against the Department of Health and Human Services alleging misfeasance in public offence and seeking compensation.  Then on the 16^th of February, 2021, I Cook Food’s claim was amended to include the City of Greater Dandenong.

This case is set to be heard by the Supreme Court of Victoria over 15 days in February 2022.  Recently, esteemed criminal barrister Robert Richter QC joined forces with legal powerhouse civil barrister Dr Michelle Sharp to represent I Cook Foods. Together this formidable team is looking forward to I Cook’s days in court with a particular focus in the up-coming cross-examination of key witnesses during proceedings.