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 During the brawl, one participant who had withdrawn and become a bystander was stabbed and later died.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.

Pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and associated Regulations, police must take steps to provide vulnerable persons, including minors, with a support person. In JB’s case, police arranged for a youth liaison officer from the Sudanese community to attend the police station. When he did, the support person asked JB what happened. In response, JB confessed his crime. The support person would go on to testify for the Crown as to the admission, resulting in JB being convicted for murder. He was sentenced to a total term of 23 years imprisonment with a non-parole period of 16 years.

Attempts to exclude the evidence of the support person

At trial, JB argued his admissions ought to be excluded under the confidential communication provisions — ss 118 and 126B — of the Evidence Act 1995 (NSW). Those submissions were rejected by the trial judge, Latham J.

On appeal before the NSW Court of Criminal Appeal, JB argued instead that the admissions ought to have been excluded under s 90 — the discretion to exclude admissions. The Court (Whealy JA, Hislop J and Grove AJ) rejected this argument, holding (at [31]):

In a given situation, the role undertaken by a support person may require that advice be given to a juvenile that he or she may or should remain silent during a police interview; it may require the tendering of advice or the giving of practical assistance during the actual interview itself. Such a role, though important, does not demand per se confidentiality in relation to admissions made freely by the juvenile to the support person outside the interview room, and in the absence of the police.

The Court did however, talking then in the hypothetical, ponder the type of situation where an admission to a support person might be excluded (at [37]):

Of course, it does not follow that every admission made to a support person, even if given freely, will be admissible in criminal proceedings against the juvenile. If the support person has cajoled or tricked the accused into making an admission, it may well be that s 90 has effective work to do. Similarly, if the support person has been acting at the direction of the police, there may emerge a powerful argument as to why the admission should not be allowed at the trial. There is no need to envisage or list the many possible circumstances that might be said to constitute unfairness so as to warrant the justified use of the safety-net provided by s 90 Evidence Act.

JB sought special leave to appeal to the High Court, and was granted a oral hearing on that application, which was heard on 15 February 2013 by Heydon, Bell and Gageler JJ. JB was ably represented by Tim Game SC who argued that the role of support person, being mandated in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), went beyond the role of a friend and attracted some obligation of confidentiality.

The Court decided it did not need to hear from the NSW Director of Public Prosecutions and held there were insufficient prospects of success and special leave was refused. At the time of the special leave application, the Crown had undisclosed knowledge of at least part of what was to emerge, although the Director personally did not.

More information comes to light and JB’s conviction is quashed

What occurred next revealed the scandalous conduct underlying this set of events. It’s not clear how, but at some point JB or his lawyers came into possession of information about the support person and key Crown witness.

In 2014, JB applied to the Supreme Court of NSW for a review of his conviction, under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), seeking orders that the matter be referred to the Court of Criminal Appeal. At the time, the basis of seeking the referral was redacted from the Court’s judgment, but with the consent of the Attorney-General, R A Hulme J referred the matter to the Court of Criminal Appeal.

JB then applied for bail before the Supreme Court, which was granted by Button J on 19 December 2014. Whatever was brewing was still not explicitly stated, but in granting bail Button J said that ‘material came to light that strongly suggests that an important Crown witness who gave evidence in the trial of a confession by the applicant had not been candid about his other roles in the criminal justice system.’ (at [5]). While opposing bail, the Deputy Director of Public Prosecutions who appeared on the bail application described the events as a ‘travesty’ (at [7]).

The NSW Court of Criminal Appeal heard the referred matter on 16 September 2015 and handed down its decision on 29 April 2016, setting aside JB’s conviction and entering a verdict of acquittal. This decision reveals the full extent of the ‘travesty’ which occurred as follows:

• The Crown did not disclose to JB at trial that the support person was a registered police informer at the time the admissions were made;
• The police did not inform the Crown or JB that an affidavit of assistance had been provided to the support person for local court proceedings where he was being sentenced for fraud type offences. The affidavit of assistance included reference to assistance provided in JB’s matter;
• JB’s solicitor had not disclosed a conflict of interest in that he had been acting for the support person in respect of his fraud offences.

It was obvious to the Court that the support person’s evidence was inadmissible and that the verdict should be quashed, the only question whether there should be a retrial or an acquittal. Chief Judge Hoeben and Adams J both decided there was insufficient evidence to convict JB and a verdict of acquittal should be entered. Justice McCallum dissented, holding there should be a retrial, although stating ‘I wish to record that I have reached this conclusion with a measure of reluctance because, as already indicated, I apprehend the orders proposed by the Chief Judge may well reflect the outcome that is ultimately just in this case.’ (at [158]).

Lessons learnt?

As introduced, JB demonstrates the vulnerability of the courts, whose institutional integrity relies on there being a fair trial. In discharging their obligations, courts must be able to rely on good faith participation by all professional actors in the criminal justice system, including defence lawyers, the Crown, and the police. To go behind the prima facie legitimacy of evidence in each and every case would be an unsustainable burden on the courts, and uproot many traditions of the adversarial system. However, what JB demonstrates is that courts must not be blind to the possibility that their integrity has been corrupted by bad faith participation of one of the actors, and where something has a flavour of suspicion to it, further inquiry might be needed. This is particularly in respect of informers who may be in a position of conflict.

In the JB matter, the following submissions were made on behalf of JB at the hearing of the special leave application in the High Court:

We do make the argument also that this — and it is just part of our argument, but we do make the argument that this relationship can be brought within section 126B which is said to be what is described as a professional relationship, and we say something about that in the submissions. He had been the support person for the Sudanese community over 300 times. It was a role he had performed. He was rung by the police.

Now, I should say also this, that we explained in the written submissions how further evidence came out during the course of the trial after the voir dire. One was that he decided during his conversation as so-called support person that he would in fact assist the police, and that is an issue that we would want to argue on the fourth ground which relates to the trial miscarrying. It is not limited to the admission of the material in the first instance.

We also raised this question about whether ultimately he was an agent of the police. That is evidence that came out further during the trial and that is dealt with at paragraph 36 of our submissions. So that is that.

It is difficult in hindsight to assess the true significance of those submissions, although they do hint at an early awareness of what was to be revealed. However, even if the Court called on the Crown, they would not have received any assistance, as the Director was not briefed on the support person’s status as an informant.

Where to from here?

It remains to be seen what the ultimate consequences will be of the conduct revealed in the AB decision. Had the matter emerged at trial, it is likely the defendant would have sought a permanent stay, relying on Dietrich v The Queen [1992] HCA 57. However given the seriousness of the charges, I would think the Court would have tried hard to fashion a temporary stay with associated orders attempting to restore the fairness of the trial. The difficulty for the Crown and the courts now is that this is no longer an option.

Defendants affected by the revelation will no doubt want to ascertain the nature of the lawyer’s conduct in respect of them. For many, that may need to wait until the Royal Commission, although there will be a desire to undertake fact finding before then. The extent of what will be provided by the Crown and the police in good faith is yet to be seen. Without proceedings on foot in which to issue subpoenas, defendants and their lawyers will be seeking to identify mechanisms of compulsion.

Of the defendants affected, they will fall into two categories: Those who have exhausted their appeal rights and those who have not. The latter will have an easier time in having their matter come before a court and seeking leave to appeal out of time with an application to adduce fresh evidence seems to be the appropriate path.

For defendants who have exhausted their appeal options, they may petition the Attorney-General under s 327 of the Criminal Procedure Act 2009 (Vic) under the prerogative of mercy mechanism to refer the whole case to the Court of Appeal, where it is to be treated as if it were an appeal by the person. To avoid the appearance of impartiality, I imagine that the Attorney-General would appoint a retired judicial officer or establish a panel within the Justice Department to review and advise on such petitions.

Once before an appeals court, the defendant’s main burden will be persuading the court that he or she did not receive a fair trial. If established, the court will be in an unenviable position as to what to do. The High Court’s recent decision in Strickland v Commonwealth DPP [2018] HCA 53 is likely to be instructive (at [292]):

The compromise to the court’s integrity, or the disrepute into which the administration of justice is brought, could only be remedied by one measure short of a permanent stay of proceedings. That measure would be orders ensuring destruction of the entire product of the tainted investigation that led to the charging of the appellants, and the giving of undertakings to the court wholly quarantining from a fresh investigation every investigator or prosecutor who had been involved with the investigation or the proceedings.

As already mentioned, such a solution is now unavailable. As a consequence there is a real possibility that a number of convictions will be set aside without any retrial. Once matters are before the appeals courts and until they are decided, it could be predicted that, as in JB, bail applications will be made. The success or not of those applications is likely to instigate great public debate.

AGLC3 Citation: Edward Elliot, ‘The Travesty in the Background to AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym): JB v The Queen’ on Opinions on High (10 December 2018) <https://blogs.unimelb.edu.au/opinionsonhigh/2018/12/10/eliot-jb-v-the-queen/>

Edward Elliott has a Master of Public and International Law from the University of Melbourne and is a research assistant at the Sydney Institute of Criminology where he has also taught Criminal Law and Civil and Criminal Procedure.