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) [2018] 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 During the brawl, one participant who had withdrawn and become a bystander was stabbed and later died.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 →