News: The Court reveals a legal scandal

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) [2018] 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.

 

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

17 thoughts on “News: The Court reveals a legal scandal

  1. Jeremy,
    The judgment does not tell us more than what you have summarised.Are the Court of Appeal judgment and Ginnane J’s judgment available?

  2. Even more than Strickland, this case reveals the absurdity of the extent of some suppression orders and I hope that the Royal Commission’s remit extends to the use of suppression orders in these matters.

    Reporting over 4 years ago essentially broke the story to the public. The targets 100% knew who Informer 3838 is as soon as the story broke if not before. Journalists know, many lawyers know, and even if you haven’t been told, it isn’t difficult to work out just from the facts in evidence.

    Meanwhile, I’m sure other female barristers and cirminal lawyers are currently copping unwarranted suspicion from people who are less well informed and merely know the unsuppressed detail that it is a female lawyer who acted for convicted gangland figures.

    And meanwhile, the police wrongdoing has gone uncorrected for over 4 years and the current police commissioner is one of those with muck on his hands- would he be commissioner now if these events had been aired 4 years ago?

  3. As if the convicted persons don’t know who acted for them, and how to get at her. What a joke. The court has completely, and without good cause, chucked the principles of open justice in the garbage bin. What of other persons that she acted for? How are they able to tell of she didn’t grass them as well? What about the police? How do they still have a job out of gaol, where they should be serving time with her? This is yet another example of the powerful police commissioner and his officers escaping investigation for criminal wrongdoing. Then again, it would be hard to get any investigation by officers who were not “on side”.

  4. I’ve tried a bit of Googling to get a better understanding of the story and who’s who in the zoo (Animal Kingdom ?) — being in Queensland where we abolished gangland killings and police corruption and so on a few years back. Interesting to note that when you start to tap in the query: “Who is informer 3838”, Google completes the query for you.

    It is hard work: a link in Austlii from Ginnane J’s decision in ***EF v CD*** to ***AB & EF v CD*** [2017] VSC 350 (19 Jun 2017) doesn’t seen to be working.

    All in all it may be easier to wait for the mini-series.

  5. The highest court in the land has made it clear that the behaviour of the police represented, at the very least, impropriety of the highest order; and if some of my lawyer friends are correct, the police actions may also have constituted a conspiracy to pervert the course of justice, barristers being officers of the court. It is astounding that the Police Commissioner hasn’t already resigned.

    • Resignations of high ranking officials generally come about from public/political pressure.

      Although the misconduct appears to have been extensive and egregious, I doubt there is much sympathy for any of the convicted persons, beyond the legal profession.

      That is not to advocate “the end justifies the means”, but simply to state a fact about why it is unlikely many heads will roll because of this.

  6. The issues at hand are twofold:

    1. A lawyer has breached her ‘confessional seal’ ethical duty to her client/s.

    2. Instead of – perhaps – doing this anonymously, she has conspired with the Police/prosecution and actively undermined ‘the system.’

    So, Joe Public’s interest in this is:

    a) would the presumably ‘innocent crooks’ have been convicted otherwise?

    b) could this kind of ‘trap’ and unethical (illegal) behaviour happen to them?

    Given the impending legislative threat to real confessional seals, and indeed the blood lust enthusiasm for such ‘reform’ in the press and polity, and because of the nature of the ‘alleged’ cover up of child abuse (and I confine my ‘alleged’ to the sole misdirection of the confessional, as, whilst it has been clearly displayed that the Church, like other professions/organisations has historically failed in its corporate administration of protecting abuse victims, sacramental confession has a near zero conjunction with abuse – sorry I digress) the point I am making is that, should the court issue any stay in the convictions (when appealed?) then Joanne Public may just whip up a campaign to say, like the Church, these ancient practices are no longer wanted or needed and that the criminal behaviour must be dealt with ‘novel legislative/policing methods?’

    Just saying…

    and I have to laugh (again) as today’s spam code is ‘oaf seven’ – sounds like a court reference?

    • The Archbishop Wilson appeal gives some hope that members of the judiciary may actually remember their duty (and I apply the judges following comments not so much against the LC magistrate but more so in contrast to the High Court in 2013!!!)

      (I think this may be referred to as the Ellis defense No.2?)

      “This may amount to perceived pressure for a court to reach a conclusion which seems to be consistent with the direction of public opinion, rather than being consistent with the rule of law that requires a court to hand down individual justice in its decision-making processes,”

      “The potential for media pressure to impact judicial independence may be subtle or indeed subversive in the sense that it is the elephant in the room that no one sees or acknowledges or wants to see or acknowledge.”

      another brilliant anti spam “cop seedy”

  7. This is probably just the tip of a massive iceberg.
    Who’s to say there are not dozens of other barristers/solicitors who live this double life.
    ‘Justice system’ what a load of CRAP.

  8. Plenty of material for Mr Justice Maxwell’s address today at the opening of the International Legal Ethics Conference at the University of Melbourne Law School.

  9. I’m not sure I can think of any reason why the police commissioner is referred to as AB and the Director of Public Prosecutions as CD! Once you’re in the alphabet soup it may be hard to extricate yourself.

  10. I’ve been trying to find the earliest Australian examples of “suppression” orders, or orders prohibiting publication of the true names of parties to proceedings. The earliest example in Queensland (post separation from NSW) appears to be Cooper v Queensland Daily Guardian (1868) 1 QSCR 193 where a plaintiff with a claim for libel sought an order that there be no publication of the hearing of his demurrer to a plea in justification — on the grounds such publication might prejudice the trial of the claim. Cockle CJ and Lutwyche J in banco (those judges constituting the whole Supreme Court of Queensland), resident in 1860s Brisbane which probably, as a rough frontier town, had a pretty rough and ready press, remarked simply: “I never heard of a judge prohibiting the publication of the proceedings of a trial. There is no precedent for the course proposed.” I don’t know whether there is any earlier Australian example.

  11. On the subject of closed courts, and suppression of publication of identities of parties to proceedings or matters disclosed in proceedings — an interesting development in Pine Rivers Magistrates Court, Queensland, on Tues 12 Dec, according to ABC News reports. The magistrate relied on s 70 of the Justices Act 1886 (Qld) to close a court when preliminary proceedings were brought on against a man charged with abduction of a child and indecent dealing of a child. Section 70 provides that all proceedings in Magistrates Courts are generally to be in public, but if the “public morality” so requires, all persons or certain persons may be excluded from the courtroom.

    This vestigial provision presumably was enacted in nineteenth century Queensland when it was found that various layabouts and ne’er do wells (presumably including journalists) were attending to hear proceedings for sexual offences in the hope of gleaning salacious details. Doubtful whether it is a very sound basis to exclude persons from courtrooms today. I don’t known whether there are analogues in other parts of Australia.

    Notably in Qld, the names of persons charged with certain sexual offences are not to be published in press reports before committal for trial or sentence, but not where the offences are child abduction or indecent dealing with a child under 16 or under 12.

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