Victoria is finally getting a royal commission into policing following yesterday’s decisions of the High Court and earlier, the Victorian Supreme Court of Appeal, to release court rulings that outline an extraordinary episode involving the use of a police informant.
The informant - referred to in court documents only as EF - is a barrister who acted for the defence in several high profile cases that resulted in convictions. It turns out she was also a police informer against the very same people she was representing before the courts. This is a shocking breach of the barrister’s duty as an officer of the court to uphold legal professional privilege - that is, the confidentiality of what passes between barrister and client.
The royal commission is an effort to fully document not only what occurred in the specific instances of the high-profile convictions, but also broader questions concerning the administration of justice in Victoria and associated police practices.
It will be the first broad-based inquiry into policing in Victoria in 35 years.
The findings cleared by the High Court for release outline a dispute between Victoria Police and the Director of Public Prosecutions over the release of documents that disclose the police use of the informer in several high-profile convictions. One decision given in the Supreme Court of Victoria as this dispute played out is given here.
In its ruling yesterday, the High Court used unusually scathing language:
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.
In the aftermath of the High Court ruling, the Office of Public Prosecutions released a media statement saying that the Director of Public Prosecutions Kerri Judd QC had “written to 20 individuals in relation to their criminal prosecutions”. It has been widely reported that Tony Mokbel, jailed for a minimum term of 22 years in 2012 for large-scale drug importation, is among that group. Criminal convictions obtained in circumstances where a defence barrister’s conduct was tainted in this way could eventually be ruled unsafe - with the possibility of a retrial or even acquittal.
I first called for such an inquiry in 2004 and again in 2011 - the circumstances were somewhat different, but were concerned with the extent to which Victorian policing practices were of high ethical standards at both operational and managerial levels.
The reason the government of Premier Daniel Andrews called a royal commission goes to the heart of the administration of justice: have people convicted of crimes been given a fair trial, and is there any possibility of miscarriages of justice?
A number of court cases have unfolded over in this dispute, centring on the question of whether the DPP should release information that documents the use of police informer EF, also known as “3838”. The argument against release was that EF’s life would be in danger if her actions became publicly known.
The cases are not findings of fact but rather whether this information should be made available outside the confines of Victoria Police and the DPP. This involves consideration of “public interest immunity”. At its simplest, the police argued that there was an “extreme” risk of death to EF if the information is released, and there was a need to protect the “informer system” that police rely on in many serious crimes.
The DPP has been robust in pushing back against the police desire for secrecy. In submissions at the various court hearings, it has argued that a balanced approach is needed to consider these issues as well as the serious misconduct of EF and the potential to:
seriously damage public confidence in legal professional privilege and the administration of justice more generally.
Further, considerations concerning disclosure includes allowing the full investigation of possible serious misconduct by police, ensuring public confidence in criminal justice administration and enhancing public deliberation of the legitimacy of police using a lawyer-informer.
The Supreme Court sided with the DPP that the disclosures are not subject to public interest immunity against disclosure.
The June 19 case provides significant detail about the use of EF and how a lawyer-turned-informer represents a threat to the integrity of criminal justice administration. Lawyers are “officers of the court” who have a “duty of loyalty” to their clients alongside a “duty of confidentiality”. Criminal justice administration demands legal professional privilege is protected as it is “critical to the functioning of the law”.
Or as Justice William Deane stated in the High Court in 1986 case in more dramatic terms, it is “a bulwark against tyranny and oppression … not to be sacrificed even to promoted the search for justice or truth in an individual case”.
Finally, a key issue regarding legal professional privilege is the widely held understanding that the “privilege belongs to the client, not the lawyer” so should only be breached on the client’s approval.
Yet this breach of privilege is precisely what has occurred and Victoria Police have been involved in detailed reviews identifying such concerns.
Victoria Police has conducted several detailed reviews identifying such concerns. In addition, the external accountability authority IBAC conducted a detailed review (the Kellam report of police actions, finding “negligence of a high order”). IBAC recommended that a copy of the Kellam report be provided to the DPP so that the office could determine if there were any “adverse effects” on any prosecutions. Some key officials were also provided with copies of the Kellam report but it otherwise remained confidential. The provision of a copy of this report to the DPP, the DPP’s request for further information about the use of the informer, and the desire to release the report or key parts of it to potentially affected parties, have been heavily litigated up to the High Court.
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Here is where we might draw on examples from elsewhere. First, Victoria has not had a broad-based inquiry into policing for 35 years (the Neesham Inquiry 1982-84 was the last broad inquiry), despite major commissions of inquiry and royal commissions into policing across Australia including the landmark Fitzgerald Inquiry in Queensland (1987-89) and the Wood Royal Commission in New South Wales (1995-97).
The Fitzgerald and Wood inquiries debunked the idea that police corruption and malpractice was only to be found in a few individuals. This is the “rotten apple” approach to police malpractice and these inquiries highlighted the paucity of such an approach. Instead, both found systemic corruption and malpractice from the bottom to the top of the respective organisatons.
Whether or not this will be found to be the case will of course be determined by the royal commission, whose terms of reference have not yet been announced, nor a commissioner appointed.
Three other aspects of these inquiries might be important to the forthcoming Victorian royal commission. First, both started with narrow terms of reference, as it seems will be the case in Victoria.
Second, in both instances the lead commissioner determined that the terms of reference needed to be broadened, which was accepted by the relevant governments.
Third, both found that to understand police malpractice, you must examine other aspects of criminal justice administration: police are one part of the “system”, and to understand what is occurring you need to inquire into the broader “ecological context” of police work. We can already see that this royal commission has to examine the police-DDP relationship, but my guess is far more besides.
The Andrews government is to be commended for acting swiftly in establishing the royal commission. But let’s hope the terms of reference are either broad enough in the first instance or that the commissioner appointed will, if necessary, ensure they are broadened appropriately.