Insight from our team of leading criminal lawyers: The biggest legal scandal in Australian history? Part 2.

This article follows on from Part 1. It describes events which took place in March 2019.

Does the end justify the means?

As a result of Lawyer X’s information, it’s believed that she helped end the gangland war that gripped Melbourne during the late 1990s and early 2000s. Mokbel and Karam are among the high-profile criminals appealing their convictions. Mokbel was jailed for 30 years for his role as a drug kingpin during the gangland war and Karam was jailed for 37 years for importing more than 330,000 ecstasy tablets.

Chief Police Commissioner Graham Ashton defended police on Monday, saying the use of Informer 3838 was a necessary weapon in an escalating war on Melbourne’s streets. “Over the preceding 12 months, numerous people had been murdered, some in very public locations and high-profile criminals were vying for control of drug operations that were inflicting serious harm on the Victorian community,” he said. “It was accordingly a desperate and dangerous time.”

The informer has reportedly refused witness protection despite the perceived threat to her life. She attended a public function as recently as September. Informer 3838 is believed to have accepted some form of police protection, but High Court documents reveal she distrusts police.

Royal Commission – what is it?

But the way she did it will now be the subject of a royal commission that could lead to reduced or overturned sentences for convicted criminals including Tony Mokbel and Rob Karam. Informer 3838 tried for years to persuade the Director of Public Prosecutions not to tell her clients she was an informer. She was unsuccessful and letters were sent to those serving time. This week, the High Court ruled that suppression orders preventing the story being told were to be lifted.

The Royal Commission into the scandal (being Victoria Police’s recruitment and management of Lawyer X and people like her) has barely started and already a Royal Commissioner has resigned. Yesterday, it was disclosed informant 3838 was first registered with the police in 1995. This is ten years before what was understood to be the case when the Royal Commission was established in December 2018. Before it was believed she was first registered in 2005.

Possible consequences of Lawyer X’s actions

While we don’t know at this stage precisely what Lawyer X did, we know she was a bad lawyer in at least one way: she profoundly betrayed her clients, with the police’s full knowledge. As far as I know, nothing like this has happened before anywhere. Nevertheless, it’s easy to predict the consequences of Lawyer X’s clients. Unless she had next to no role in their defence, all the results of any trial where she represented them (including their criminal convictions and any sentence) could likely be cancelled.

That’s because no-one can be convicted or punished for a crime unless there has first been a fair trial. Victoria’s Charter of Human Rights and Responsibilities says: 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.

Lawyers, like anyone else, can sometimes opt to become police informants, but the one thing they cannot do is inform on people they are representing in court. The courts will never tolerate a criminal defendant’s lawyer secretly helping the opposing side in a trial.

That’s why the High Court said late last year that what Lawyer X and the police did “corrupted” the prosecutions of her clients and “debased” the criminal justice system. The problem isn’t just the details of whatever secrets she betrayed and what advantages the police and prosecutors received. It’s also whether her role as a police informant so “corrupted” her role as a lawyer that she was never able to carry out her duties to her clients or the courts.

If that’s the case (if people charged with serious offences were not truly defended by their lawyer) then it’s as if Lawyer X’s clients were never tried for their crimes at all. The best-case scenario is that the clients of Lawyer X will be retried and, perhaps, convicted again. But then there’s the question of whether future courts will be able or willing to unscramble the Lawyer X omelette. Especially more than a decade down the track. It’s easy to give the clients new lawyers, but it’s harder to make the events of the past disappear.

Memories will be lost or changed, and the events of the earlier flawed trials will inevitably influence the course and perhaps the result of any later trial. The worst-case scenario – but a likely one – is that people widely reviled as criminals will (unless they are serving time for other crimes) be released from prison and even be compensated for their time in prison.

The real scandal isn’t that Lawyer X is a bad lawyer, or even that the cops may have done the wrong thing. It’s that the trials that aimed to do justice to defendants, to victims and to society – costly trials, where many people’s lives, freedom, reputation and recovery were at stake – were not fair trials. Bad and even unfair trials do happen, of course, but what’s different this time is just how unfair these trials were. Lawyer X and the police didn’t just break some rules. They broke a key part of the justice system.

If you’re needing assistance with legal matters or determining your legal rights, Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today. 

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