News: High Court protects Lawyer X’s children

While the nation debates the verdict and sentencing of George Pell – topics that may perhaps reach the High Court one day – the Court itself has been working on a matter that will dominate Victorian news this afternoon: the identity of Lawyer X, the Victorian barrister who spent years speaking to the police about some of her criminal clients. Victoria’s Court of Appeal recently rejected Lawyer X’s last plea for that court to keep her identity secret (or, more precisely, off our TV screens and mainstream newspapers. However, her identity remained protected by an order made by the High Court’s seven justices when they threw out her earlier effort to keep her name from some of the nation’s worst criminals. That temporary order was due to expire on 5 February, but the Court extended it twice, t to 15 February and then to 12 April, without any (publicised) hearing or reasons. However, two days ago, the Court varied the order for (presumably) the last time, again without explanation. At 4.15pm today, she will become the Lawyer Formerly Known as X. (The 12 April date remains in place for the unusual secrecy around her court file and the earlier Court hearings in her case.)

Yesterday saw a further published judgment in the case from Nettle J (the High Court justice assigned to manage the whole case), giving Lawyer X her first court victory.While Lawyer X has seemingly given up on keeping her name and face out of the tabloids, she is still fighting to keep her children’s identity secret. Yesterday’s judgment reveals that Victoria’s Court of Appeal turned down that request too, ruling that there was no real threat to her children. Although the Victorian judgment is not yet available, the Court of Appeal may have been influenced by the High Court’s own remark in November about the two children of X (or, as the courts call her, EF):

If EF chooses to expose herself to consequent risk by declining to enter into the witness protection program, she will be bound by the consequences. If she chooses to expose her children to similar risks, the State is empowered to take action to protect them from harm.

Yesterday, Nettle J made no mention of X losing her children (now assigned the codenames HI and JK, mysteriously skipping the letter G), but instead held that the Court of Appeal’s own risk assessment needed to be weighed against the police’s contrary view and the fact that ‘this is a wholly exceptional case’ where a lengthy inquiry is in its early stages.

Why would anyone want to reveal the identities of X’s children anyway? Justice Nettle couldn’t see any reason himself and pointedly noted that nearly everyone before him agreed:

HI and JK are children of relatively tender years who were not and are not involved in any manner in the Supreme Court proceedings or these proceedings. It is not suggested that the interests or administration of justice would be at all compromised by non-publication of their names and images. There is no evident basis to suppose that public understanding of the judgments of the trial court or the Court of Appeal, or of this Court, would be affected. Nor is there any legitimate public interest in the publication of the details of EF’s children in connection with the subject matter of the Supreme Court proceedings or these proceedings. The Royal Commission acknowledges that the names and images of the children are not relevant to its inquiry and that it has no interest in opposing the application. Neither CD [Victoria’s DPP] nor the Commonwealth Director of Public Prosecutions opposes the application. And apart from The Age Company Ltd, responsible sections of the press and electronic media… have rightly not sought to say anything against it.

Why The Age (recently purchased by Nine) alone argued otherwise is unknown, as the case file and hearings in the High Court remain suppressed for now. What we do know is that Nettle J rejected the broadsheet’s argument. As a result, whatever else we learn about Lawyer X this afternoon, the names and faces of her two children will remain secret ‘until publication of the final report of the Royal Commission into the Management of Police Informants and thereafter for a period of not less than 15 years’, courtesy of the nation’s apex court.

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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.

One thought on “News: High Court protects Lawyer X’s children

  1. I just wonder when someone is going to name the Chief Commissioner of Police, Victoria, who is referred to in the latest orders, still, as AB (that’s Graham Ashton, or his predecessor, I suppose) or the mysterious CD — the Director of Public Prosecutions (Vic) — one Kerri Judd QC (or predecessor).

    Dare you to publish their names, Jeremy — double dare you.

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