AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym)  HCA 58
The High Court of Australia demonstrated its reluctance to uphold entitlements to confidentiality and privilege where there are egregious breaches of one’s right to a fair trial and legal professional privilege. The main issue before the High Court was between Victoria’s Director of Public Prosecutions (DPP), who wanted to disclose information discovered by Victoria’s anti-corruption commission, and the Chief Commissioner of Victoria Police (Police Commissioner), who opposed disclosure because of security risks to a police informant (EF) who was simultaneously acting as a defence barrister for Tony Mokbel and six of his criminal associates (Mokbel and Associates).
The High Court found in favour of disclosure, holding that EF’s actions were “fundamental and appalling breaches of [her] obligations as counsel to her clients and of her duties to the court”. The Court also described the actions of Victoria Police as “reprehensible conduct in knowingly encouraging her” and “atrocious breaches of the sworn duties imposed on every police officer”.
EF acted as a defence barrister for Mokbel and Associates while simultaneously acting as a paid informant for Victoria Police against Mokbel and Associates and other clients. She assisted police by providing information that led to 386 arrests and convictions, introducing criminals to undercover operatives and encouraging her clients to plead guilty.
In February 2015, Victoria’s anti-corruption commission provided to the Police Commissioner, which in turn provided to the DPP, a copy of a report which disclosed how Victoria Police deployed EF in obtaining criminal convictions against Mokbel and Associates. Victoria’s DPP then intended to disclose certain information from the report to Mokbel and Associates as part of its prosecutorial duty. Victoria Police opposed disclosure of the report because it assessed that such disclosure would increase the risk of death to EF to "almost certain".
Consequently, the Police Commissioner instituted proceedings in the Supreme Court of Victoria to prevent the DPP from making the proposed disclosures and ensure that the concerned report is subject to public interest immunity. EF also instituted separate proceedings seeking similar relief. On 19 June 2017, the Supreme Court dismissed both claims and on 21 November 2017, the Court of Appeal dismissed the subsequent appeals of the judgment. On 9 May 2018, the Police Commissioner was granted special leave to appeal to the High Court on grounds that the Court of Appeal erred in failing to appreciate Victoria Police’s assurances to EF that her identity would not be disclosed.
The High Court refused the appeal and lifted the suppression orders to enable publication of the two previous judgments. The identity of EF however remains suppressed to date to enable EF to enter the witness protection program and take other steps to ensure her and her children’s safety.
The Court appreciated that EF and her children were at “grave risk” of reprisals. However, it also found that protection would be available through a witness protection program (which opportunity EF had declined at the date of the High Court hearing) and so remarked that “there arises a greater public interest in disclosure to which the public interest in informer anonymity must yield.” It accordingly concluded that “the public interest in preserving EF's anonymity must be subordinated to the integrity of the criminal justice system”.
The Court found that there were flagrant breaches of Mokbel and Associates’ right to legal professional privilege and the right to a fair trial, both fundamental tenets of the rule of law. The decision has been followed by widespread outrage over the conduct of EF and Victoria Police, which are discussed further below. Critically, the criminal convictions of not only Mokbel and Associates but those of other individuals who were represented by EF or other defence lawyers acting as police informants may be invalidated, requiring numerous convictions to be set aside and the accused retried.
1. Barrister EF
The High Court provided an emphatic reminder about the supreme importance of maintaining client confidentiality within a lawyer-client relationship for the integrity of the justice system, without exception. The exceptional nature of EF’s conduct was highlighted by the comments of the President of the Victorian Bar, Dr. Matthew Collins QC, who described it as “egregious and unprecedented in the 135 year history of the Victorian Bar”. It remains to be seen what disciplinary action awaits EF, but given the comments of the High Court and other leading figures in the legal profession it is likely that she will not practise law again.
2. Criminal justice and a client’s right to a fair trial
A client’s right to a fair trial is enshrined in section 24 of Victoria’s Charter of Human Rights and Responsibilities, which states: “a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing”. Further, rule 114 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Vic) specifies that a barrister must not disclose (except as compelled by law) or use confidential information obtained in the course of practice concerning any person to whom the barrister owes confidentiality obligations.
This case reminds us that disclosing client communications to law enforcement conflicts with the client’s right to a fair trial as well as a lawyer’s duties to his or her client, including maintaining client confidentiality, promoting the client’s best interests and avoiding any conflicts of interest. As such, as the Court stated, this case warrants re-examination of the “propriety” of each of Mokbel and Associates’ convictions. This has significant repercussions as it opens the prospect of not only Mokbel and Associates but other criminals having their convictions overturned, and potentially exposes the State of Victoria to claims for compensation by those affected by the lawyer's work as an informant.
3. Victoria Police
There has also been serious concerns raised about Victoria Police’s use of a defence barrister as an informant. President of the Law Council of Australia, Morry Bailes, called for properly resourced oversight bodies and stronger police accountability mechanisms. As an immediate response to the judgment, on the same day as the High Court delivered its decision, the Victorian Government established the Royal Commission into Management of Informants to determine how many cases were impacted by the use of the barrister as an informant and consider what changes may need to be made to the management of informants.
The Commission commenced its hearings on 15 February 2019 charged with making recommendations on how to deal with those who may have been impacted by the use of the barrister as an informant, including the status of their convictions and their entitlement to compensation. The Commission is due to provide an interim report by 1 July 2019 and a final report by 1 December 2019. Although its terms of reference are limited to Victoria, its ramifications for justice and law enforcement policy are likely to extend beyond the state.
The Royal Commission presents an opportunity to consider new potential regulations needed to clarify the circumstances (if any) in which lawyers may act as an informant. It is also expected that this case will serve as a critical point in reforming the culture and practices of Victoria Police and thus improve the overall integrity of the criminal justice system going forward.
The full text of the decision is available here.
Martin Irwin (Partner), Ben Fisher (Senior Associate) and Hae-Sang Chung (Associate) at Norton Rose Fulbright.