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. Its reasons for judgment reveal that, following the DPP’s success in all proceedings below, special leave was granted to address whether there was a ‘discrete public interest’ in Victoria being kept to the promise of permanent anonymity that police made to EF and whether the courts below erred in dismissing EF’s statement that she would never enter witness protection. The reasons also reveal that, after receiving written submissions (which were never published on the Court’s webpage), the justices decided that the only arguable issue was whether or not Victoria Police could protect EF and her children, and that the Court sought and obtained fresh evidence from the police to the effect that their lives could be saved through witness protection. That information prompted an ‘in camera’ oral hearing on Tuesday 5 November (held without a court list for that day or any mention in the Court’s November business list), where the justices unanimously revoked special leave, with reasons issued that day but suppressed until now. Either then or since, the justices ordered that the High Court file on the cases must remain closed, and EF’s identity remain a (theoretical) secret, until 5 February next year.
The Court’s ruling permitting the disclosure of the scandal will have enormous ramifications: for EF and her children, for Mokbel and other convicted persons, for Victoria Police and for the Victorian criminal justice system. The immediate effect of the ruling was to clear the way for the publication of two judgments by Ginnane J and one by the Victorian Court of Appeal that put many details of the scandal and its aftermath in the public domain. Hours later, Victoria’s newly re-elected premier cited the Court’s words when announcing a Royal Commission that will examine Victoria Police’s role and its implications for the safety of convictions from that era. The latter issue will be resolved in the light of the Court’s recent ruling in a different matter, where a majority of the Court stayed four prosecutions in light of different misconduct that infringed other defendants’ rights. Amidst the many ramifications of the scandal, I hope that Victoria’s courts will themselves reflect on two indirect roles they played in these events. First, in the midst of the police’s use of EF as an informant against her clients, Victoria’s courts (and the High Court) ruled in favour of novel policing methods, despite concerns that their use would override suspects’ common law rights and invite police corruption. Second, throughout the aftermath of Melbourne’s gangland war, Victoria’s courts imposed extensive suppression orders that, while well-intentioned, have largely prevented the public from gaining a full understanding of the methods used by Victoria Police in response.