2018 in Law: Lawyer X
A gangland lawyer turned in to a police informer - and paid the price.
The second major legal event in 2018 also involved attempts to obtain a suppression order - however, unlike in our previous article, the Courts were not willing to suppress the wrong-doing of Victoria Police.
The Gangsters’ Secret-Keeper
Victoria Police had long attempted to arrest and jail Tony Mokbel and other organised crime figures in Victoria - but struggled to obtain enough evidence to convict. The alleged kings of organised crime, Mokbel and others are allegedly responsible for murders, drug trafficking, brothels and other activities in Victoria and around Australia.
In 2006, Kuwaiti-born Mokbel fled to Greece; extradition proceedings to bring him back to Australia took a further 2 years. Finally, in July 2012, Victoria Police were successful and Mokbel was sentenced to between 20 and 33 years jail for drug trafficking and importation.
Before his run to Greece, Mokbel had instructed Lawyer X as his defence barrister and told them private information about his life and behaviour. Of course, this is perfectly normal – any client should normally be able to talk freely to their own lawyer.
While acting as the barrister for many underworld figures (including Mokbel) Lawyer X then decided to become a Victoria Police informant - "Informant 3838". Some reports say that more than 380 other cases involved Lawyer X receiving information from her own clients, and feeding it to police. The number of cases, and the relevance of Lawyer X's information, is currently under external investigation.
Lawyer X’s identity remains suppressed and it is possible that she may yet enter a witness protection program – though she has said, both in the media and to police, that she has no trust in the witness protection program and the ability of Victoria Police to protect her. She has two children, the eldest one of which has been threatened, according to the Guardian Australia.
Then The Lights Were Turned On
The Director of Public Prosecutions (DPP) is under a duty to inform defence about the evidence in a case – including where that information came from. When the DPP became aware that Lawyer X had been an informant, and that the evidence had been used in the case against Mokbel and others, the DPP considered themselves duty-bound to inform defence about where the information had come from.
Victoria Police did not want this to happen. They applied for court orders banning this disclosure, on the grounds that protecting the identity of Lawyer X was in the public interest; the Victorian courts refused. The Police Commissioner took one last stab in 2018, taking his own state’s chief prosecutor to the High Court.
The High Court is known for being careful cautious and reserved in their language - but in December 2018, as they threw out the Police application for suppression, all seven Justices were scathing:
… there is a clear public interest in maintaining the anonymity of a police informer, … Here the situation is very different, if not unique, and it is greatly to be hoped that it will never be repeated. [Lawyer X]’s actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of [Lawyer X]’s obligations as counsel to her clients and of [her] duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging [Lawyer X] 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[2]. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system…
AB v CD; EF v CD (2018) HCA 15 at [10-11] per curia
(emphasis added, footnotes omitted)
Lawyer X violated a basic rule: that any Australian has the right to legal advice and legal assistance. Guilt must be proven, it is never assumed, and Australian society is not judged on how it treats its best but by how it treats its worst. Whether you are truly innocent or a terrorist, we ensure that you have due process, fair trials and fearless independent legal help. This is what the Australian rule of law needs to exist : protecting the rights of all people in this country, and it is our best way of ensuring true justice is done.
Because Lawyer X passed on information about her own clients, both she and the people who helped her have, at the very least, undermined the guilty findings against Mokbel and, possibly, hundreds of others.
A number of appeals to set aside conviction, by those already serving their jail sentences, are already underway.
2019: How Far Did This Go?
Many convictions (and jail sentences) against alleged underworld criminals are now in question. The Victorian Government has called a Royal Commission to review how many cases have been undermined by Victoria Police and Lawyer X’s evidence – and whether Lawyer X is the only one to have become an informant.
There is certainly an argument that Lawyer X, in providing information that prevent drug sales and trafficking, has done the Victorian people a great service. This is her own explanation for why she informed police:
My motivation in assisting police was not for self-gain, but was rather borne from the frustration of being aware of prolific large commercial drug trafficking, importations of massive quantities of drugs, murders, bashings, perverting the course of justice, huge money laundering and other serious offences all being committed without any serious inroads being made by police.
I maintain (despite what I understand from the media to be an incorrect ill-informed view taken by IBAC based upon who knows what version of events), that anything told to me or said in my presence about crimes being planned or committed cannot ever fall under the protection of legal professional privilege by a client.
- Excerpt from letter by “Informant 3838”, published ABC News, 4 Dec 2018
Whatever Lawyer X’s own views may be, the legal fraternity have taken a very dim view of her behaviour. By betraying her own clients to law enforcement, it can reasonably be expected that she will never be welcome back as a lawyer – even if Lawyer X thinks she has been hard-done by. Lawyer X herself recognises this:
..."my reputation is gone and I will ever be able to work as a lawyer again.
The legal community in Victoria, including its judiciary, have formed a view that means I have now lost many friendships and relationships (professional and personal).”
Royal Commission
The Victorian government has called a Royal Commission, which is due to issue its first report in July 2019, chaired by former President of the Queensland Court of Appeal Margaret McMurdo, and Tasmanian Bushfire Inquiry chairman and former SA Police Commissioner Malcolm Hyde.
The Commission’s Terms of Reference are:
1 — The number of, and extent to which, cases may have been affected by the conduct of 3838 (also known as Lawyer X) as a human source.
2 — The conduct of current and former members of Victoria Police in their recruitment, handling and management of 3838 as a human source.
3 — The current adequacy and effectiveness of Victoria Police’s processes for the recruitment, handling and management of human sources who are subject to legal obligations of confidentiality or privilege, including:
a. whether Victoria Police’s practices continue to comply with retired judge Murray Kellam’s recommendations following his independent inquiry for Victoria’s corruption watchdog in 2015; and
b. whether the current practices of Victoria Police in relation to such sources are otherwise appropriate.
4 — The current use of human source information in the criminal justice system from human sources who are subject to legal obligations of confidentiality or privilege, subject to section 123 of the Inquiries Act 2014, including:
a. the appropriateness of Victoria Police’s practices around the disclosure or non-disclosure of the use of such human sources to prosecuting authorities;
and b. whether there are adequate safeguards in the way in which Victoria Police prosecutes summary cases, and the Office of Public Prosecutions prosecutes indictable matters on behalf of the Director of Public Prosecutions, when the investigation has involved human source material.
5 — Recommended measures that may be taken to address any systemic or other failures in Victoria Police’s processes for the recruitment, handling and management of human sources who are subject to legal obligations of confidentiality or privilege, and in the use of such human source information in the broader criminal justice system, including how those failures may be avoided in future.
6 — Any other matters necessary to satisfactorily resolve the matters set out in paragraphs 1 to 5.
