By Edward Elliot
On 3 December 2018 the High Court of Australia made public its decision in AB (a psuedonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym)  HCA 58 which in effect revealed that a Victorian barrister had been operating as a police informant, including providing information against her clients’ interests. The identity of the barrister remains suppressed until 5 February 2019, giving her time to enter the witness protection program and take steps to ensure the safety of herself and her children.
Since the High Court’s decision, there has been considerable concern expressed as to how it was police could have considered it appropriate to use a defence barrister as an informant and whether the integrity of the criminal justice system has been called into doubt. Responding to such concerns, the Government of Victoria has announced a Royal Commission to examine the circumstances of the affair, although its scope has not yet been determined.
Jeremy Gans has recently posted his take on the case, along with his hope that the Victorian courts will in due course reflect on their role in the matter. In this post, I will outline the tale of JB, a minor convicted of murder in NSW and ultimately acquitted. The history of litigation in JB reveals the vulnerability of the courts to being caught up as innocent agents in hidden injustices. This is particularly so where the Crown — and perhaps more so the police — dictate if and when information about informant status is disclosed. Finally, at the end of the post I will consider what mechanisms might be available to defendants who are affected by the AB decision and consider how the courts might deal with any resultant appeals.
The Crown against JB
In April 2008, JB, then aged 15, was caught up in a brawl between two groups of youths in Granville, an outer suburb of Sydney. During the brawl, one participant who had withdrawn and become a bystander was stabbed and later died. The police assembled a circumstantial case against JB, including CCTV of the initial of the brawl (but not the stabbing) and witness statements, before arresting him. Continue reading
EF’s actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF’s obligations as counsel to her clients and of EF’s duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system
This week, the High Court published its reasons for judgment in AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym)  HCA 58, among the first official words on the public record on a shocking Victorian legal scandal. While the central events of the scandal played out from 2005 to 2009, the High Court’s involvement arises from one of its aftermaths, concerning the question of whether the ‘Convicted Persons’ (Tony Mokbel and six of his associates) can be told about the findings of a suppressed 2013 report by Victoria’s anti-corruption commission. The main legal dispute before the Court was between CD (Victoria’s Director of Public Prosecutions), who wanted to tell Mokbel et al what the commission had found as part of its duty of prosecutorial disclosure and AB (the Chief Commissioner of Victoria Police), who didn’t want them told, because of the extreme danger the revelation would pose to both EF (simultaneously a barrister for Mokbel et al and an informer for Victoria Police) and to the future use of informers. In a separate action, EF also sought to stop the DPP from revealing her identity on the ground that doing so would be a breach of confidence. Also in the mix were the Commonwealth DPP (who would also have duties of disclosure to Mokbel and others), Victoria’s human rights commission (intervening to address the role of the state’s rights statute) and an amicus curiae, who was appointed to represent the interests of Mokbel et al (who in theory knew nothing of the proceedings until today.)
Aside from an interlocutory hearing before Nettle J and the announcement of two grants of special leave without an oral hearing, the High Court has revealed absolutely nothing about this case until now. Continue reading