High Court Refuses to Hide Disgraceful Conduct of Barrister and Police

The Victorian Government has called for a Royal Commission into the underworld lawyer scandal that has jeopardised at least 22 convictions and possibly hundreds, potentially affecting some of the state’s most serious cases.

Police fight to suppress information

Victorian Police have fought for three years to keep the details of their operations and the identity of their informant secret, but court documents now reveal that the criminal defence barrister, who represented Underworld figure Tony Mokbel and six of his associates acting as a paid police informant against her own clients – leaking information about their activities and then reaping the financial benefits of representing them.

Victoria Police’s battle for suppression dates back to 2015, after gangland figure Tony Mokbel and his associates were convicted of serious crimes including murder and drug offences.

At the time, the Independent Broad Based Anti-Corruption Commission (IBAC) prepared a report for the Director of Public Prosecutions (DPP), recommending it “consider whether any prosecutions had resulted in a miscarriage of justice as a result of the conduct of a barrister acting for those persons”.

The DPP decided there was a duty to inform Mr Mokbel and his associates that their criminal lawyer had a conflict of interest and breached client legal privilege by informing on them at the same time she was representing them. In colloquial terms, the barrister was “batting for both teams”.

The barrister — who cannot yet be named and is known only as ‘EF’— also gave information to police about a whole host of other clients, who later made statements against some of the Mokbel group.

In the months that followed, Victoria Police undertook an assessment of the risk to the barrister if the DPP disclosed the information to Mokbel and his associates, concluding it was “almost certain” she would be murdered. On that basis, the then Chief Commissioner of Police and informant asked the DPP to keep the information hidden.

However, Victoria Police and the informant lost their initial attempt in the Supreme Court to suppress the information. They then lost an appeal to the state’s Court of Appeal and, finally last month, lost in the highest court of the land – the High Court of Australia.

Criminal defence barrister was involved in hundreds of cases

The High Court found that by covertly informing on her clients while representing them, the barrister had committed “fundamental and appalling breaches” of her professional obligations as a lawyer.

During her time as an informant, there were at least 386 people arrested and charged based upon information she provided to police.

These cases included convictions over the country’s largest ecstasy haul, in which more than four tonnes of ecstasy was hidden in tomato tins, and many other cases involving the ‘Mokbel clan’.

The court described the police conduct as “atrocious”, pointing out that it has undermined the integrity of the justice system.

Convictions can be appealed

The High Court made clear, “… that the prosecution of each convicted person was corrupted in a manner which debased fundamental premises of the criminal justice system. …. And the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each convicted person’s conviction be re-examined in light of the information.”

Each of the barrister’s clients will be sent a letter, opening up the potential for many of them to appeal their convictions.

The Court added, “Likewise, Victoria police were guilty of reprehensible conduct in knowingly encouraging [the informant] as they 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.”

Police defend their actions

Despite everything, the Victorian Police chief has defended the actions of police – both their use of the informant, and the subsequent challenge in the courts, saying it occurred during “a desperate and dangerous time” where “a genuine sense of urgency was enveloping the criminal justice system, including police.”

Police claimed their fight for the information to be hidden was motivated by the need to protect the lawyer and their family, “who Victoria police believed would be murdered if this information was released”.

But the Supreme Court of Victoria, the Court of Appeal, and the High Court have all found it heavily in the public interest to maintain the integrity of the justice system by exposing the conduct, determining that the informant and family, may be “adequately protected” through the witness protection program.

Royal Commission

The Victorian Government has instigated a Royal Commission in an attempt to restore public confidence in the judicial system.

The Commission will be asked to make recommendations regarding better management of informants to prevent similar misconduct in future.

It has been allocated a budget of $7.5 million, and will begin early in the new year with an interim report outlining the number of convictions directly impacted expected on 1 July 2019 and a final report due on 1 December 2019.