Lawyer X “Say nice things at my eu­logy and en­joy the Royal Comm’n”

In the wake of this week’s High Court rul­ing, de­tails emerge of Vic­to­ria Po­lice’s un­prece­dented use of a top crim­i­nal lawyer as an in­for­mant dur­ing Melbourne’s gang­land wars. Martin McKen­zie-Mur­ray re­ports.

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Nine years ear­lier, when she was ad­mit­ted to prac­tise law, it would have all seemed un­think­able. Ab­surd. The black­est, sick­est kind of night­mare. Nine years ear­lier, she was young, bright and am­bi­tious

– and think­ing clearly of the path that would ex­tend her dis­tinc­tion. As a crim­i­nal de­fence lawyer, she was earnest, ex­tro­verted, but, some thought, too ea­ger to please. Too en­rap­tured with the cut and thrust, too quick to un­der­es­ti­mate her lim­i­ta­tions, too ea­ger to share a drink with the no­to­ri­ous. A few years later, a se­nior lawyer would warn her that she was in too deep with clients. They’re dan­ger­ous and cun­ning, he said. You’re not smart enough to control them.

Now, in an air­con­di­tioned room, her night­mare was made of­fi­cial. It was Septem­ber 16, 2005, and the young lawyer was for­mally reg­is­ter­ing her­self as a po­lice in­for­mant against her own clients – some of the most dan­ger­ous men in the coun­try. She was con­ferred the anonymis­ing num­ber 3838, and was given solemn as­sur­ances about the pro­tec­tion of her iden­tity. “You can trust us,” the

de­tec­tives told her, “but we can’t trust you. Trust is earned.”

Within the se­cre­tive Hu­man Sources De­vel­op­ment unit of Vic­to­ria Po­lice, the reg­is­tra­tion made of­fi­cial what had been, for at least a year, an in­for­mal re­la­tion­ship, and it con­firmed her role as a highly vexed dou­ble agent in Melbourne’s gang­land wars. It would also make of­fi­cial her be­trayal of her clients, her pro­fes­sion and, ul­ti­mately, her peace of mind – and set off a chain of events with­out le­gal prece­dent in this coun­try.

“If this gets out, say nice things at my eu­logy, be­cause I will be gone,” she told de­tec­tives. “And en­joy the royal com­mis­sion.”

In the High Court on Mon­day, a fouryear-long at­tempt by Vic­to­ria Po­lice and In­former 3838 to sup­press the de­tails of their scan­dalous col­lab­o­ra­tion – and to pre­vent Vic­to­ria’s di­rec­tor of pub­lic pros­e­cu­tions (DPP) from dis­clos­ing the fact to seven con­victed men – fi­nally, and defini­tively, ended.

The pub­lic ex­po­sure was a long time com­ing, but many – po­lice, lawyers and re­porters for the Her­ald Sun – thought this day was in­evitable. It was just a mat­ter of when. There were many fin­gers try­ing to plug the frac­tured dam wall, many years of me­dia in­junc­tions and ap­peals. But here, fi­nally, was the pub­lic reck­on­ing. Or at least the begin­ning of it.

That In­former 3838 had been rep­re­sent­ing clients while in­form­ing on them was al­ready sus­pected by a few in the un­der­world. But a cru­cial mo­ment in the le­gal process came in 2014, when Vic­to­ria’s anti-cor­rup­tion body – the In­de­pen­dent Broad-based Anti-cor­rup­tion Com­mis­sion (IBAC) – ap­pointed re­tired jus­tice Mur­ray Kel­lam to in­ves­ti­gate Vic­to­ria Po­lice’s use of In­former 3838. The in­ves­ti­ga­tion was not ex­haus­tive – 3838 had gen­er­ated more than 5000 pages of po­lice re­ports – but fo­cused upon the con­vic­tion of drug baron Tony Mok­bel and six of his as­so­ciates.

In Fe­bru­ary 2015, Jus­tice

Kel­lam handed his re­port to the chief com­mis­sioner of Vic­to­ria Po­lice, who in turn pro­vided it to the Vic­to­rian DPP.

The re­port was pub­licly sup­pressed but made 16 rec­om­men­da­tions and found that se­nior po­lice had acted neg­li­gently in the use of the lawyer and in­for­mant. Hav­ing read the re­port, the DPP felt legally com­pelled to dis­close to the seven in­di­vid­u­als that their con­vic­tions may have been un­der­mined.

Vic­to­ria Po­lice con­tested the DPP’s dis­clo­sures – and sub­se­quent re­port­ing from the Her­ald Sun – by in­vok­ing im­mu­nity from pub­lic in­ter­est on the grounds dis­clo­sure would gravely im­peril their in­for­mant and her chil­dren and, sec­on­dar­ily, would chill the like­li­hood of fu­ture in­for­mants if they couldn’t trust that po­lice could pro­tect their iden­ti­ties.

But Mon­day’s High Court de­ci­sion, wherein “EF” was the court’s pseu­do­nym for In­former 3838, was blunt and unan­i­mous. “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,” the judgement read. “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. As a re­sult, the pros­e­cu­tion of each Con­victed Per­son was cor­rupted in a man­ner which de­based fun­da­men­tal premises of the crim­i­nal jus­tice sys­tem. It fol­lows, as Gin­nane J and the Court of Ap­peal held, that the pub­lic in­ter­est favour­ing dis­clo­sure is com­pelling: 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. The pub­lic in­ter­est in pre­serv­ing EF’s anonymity must be sub­or­di­nated to the in­tegrity of the crim­i­nal jus­tice sys­tem.”

The High Court ex­am­ined, as pre­vi­ous courts had, the ev­i­dence be­fore them re­gard­ing the threat to the in­for­mant. Last year, in the Vic­to­rian Supreme Court, ev­i­dence was ten­dered by po­lice – com­piled by vet­er­ans of covert op­er­a­tions, ex­pe­ri­enced with wit­ness pro­tec­tion pro­grams – that dis­clo­sure would raise the threat of her mur­der from “pos­si­ble” to “highly likely”.

Hav­ing re­fused the wit­ness pro­tec­tion pro­gram, the in­for­mant, in fit­ful har­mony with po­lice, played a high-stakes game of mis­di­rec­tion. The goal was plau­si­ble de­ni­a­bil­ity. Al­ready pub­lic was the fact that she had co­op­er­ated with po­lice and had worn a wire when meet­ing with Paul Dale, a for­mer cop sus­pected of bur­gling a drug lab and later or­der­ing the mur­der of an al­leged ac­com­plice turned state wit­ness. Know­ing that sus­pi­cion would fall upon their in­for­mant, po­lice fed the me­dia lines that 3838’s co-op­er­a­tion was lim­ited to Dale – and banked on the un­der­world’s for­give­ness of the lawyer’s treach­ery be­cause it had been com­mit­ted against a for­mer cop.

In­former 3838, mean­while, main­tained con­tact with fig­ures in the un­der­world – and other­wise acted as a woman with noth­ing to hide. To pro­tect her­self, she felt, re­quired be­hav­ing as if she needed no pro­tec­tion. But in the un­der­world, the guess­ing game con­tin­ued. In­former 3838 feared sus­pi­cion would be­come cer­tainty. “[For] a lot of peo­ple in prison, the Her­ald Sun is their bi­ble,” she told the Vic­to­rian Supreme Court last year. “It’s known as the bi­ble in there. Ini­tially, when the first ar­ti­cle came out and it said ‘Lawyer X’ there was a bit of spec­u­la­tion about who it was. But as more ar­ti­cles came out, any­one who would want to do me harm or was sit­ting in prison would read the sto­ries about Lawyer X and know it was me.”

The courts ac­cepted her fear as rea­son­able. “On the ev­i­dence be­fore the courts be­low and now be­fore this Court, EF and her chil­dren will be at grave risk of harm un­less EF agrees to en­ter into the wit­ness pro­tec­tion pro­gram,” the

High Court judgement read. “Nor is it to ig­nore that, thus far, EF has de­clined to do so, tak­ing the view that Vic­to­ria Po­lice can­not be trusted to main­tain con­fi­den­tial­ity and ap­par­ently that she would prefer to wear the risk than sub­ject her­self and her chil­dren to the lim­i­ta­tions and bur­dens that wit­ness pro­tec­tion would surely en­tail. It is fur­ther not with­out sig­nif­i­cance that Vic­to­ria Po­lice may bear a large mea­sure of re­spon­si­bil­ity for putting EF in the po­si­tion in which she now finds her­self by en­cour­ag­ing her to in­form against her clients as she did.”

Nor was the High Court, like pre­ced­ing ju­ris­dic­tions, in­dif­fer­ent to the pos­si­bil­ity of this af­fect­ing po­lice re­cruit­ment of in­for­mants in the fu­ture: “Gen­er­ally speak­ing, it is of the utmost im­por­tance that as­sur­ances of anonymity of the kind that were given to EF are hon­oured,” its judgement read. “If they were not, in­form­ers could not be pro­tected and per­sons would be un­will­ing to pro­vide in­for­ma­tion to the po­lice which may as­sist in the pros­e­cu­tion of of­fend­ers. That is why po­lice in­former anonymity is or­di­nar­ily pro­tected by pub­lic in­ter­est im­mu­nity. But where, as here, the agency of po­lice in­former has been so abused as to cor­rupt the crim­i­nal jus­tice sys­tem, there arises a greater pub­lic in­ter­est in dis­clo­sure to which the pub­lic in­ter­est in in­former anonymity must yield.”

That sealed it. And per­haps there could be no more chill­ing ex­pres­sion of her night­mare than the fi­nal words of this week’s judgement: “If EF chooses to ex­pose her­self to con­se­quent risk by de­clin­ing to en­ter into the wit­ness pro­tec­tion pro­gram, she will be bound by the con­se­quences,” it read. “If she chooses to ex­pose her chil­dren to sim­i­lar risks, the State is em­pow­ered to take ac­tion to pro­tect them from harm.”

The next day, Vic­to­rian premier Daniel An­drews an­nounced a royal

com­mis­sion into the scan­dal. It will start in haste in the new year and is likely to im­pli­cate some of the high­est ranks of the po­lice force. Mean­while, lawyers are ex­am­in­ing their files and writ­ing ap­pli­ca­tions – it’s be­lieved more than 600 cases may have been tainted.

It was like a bad film plot. In con­ver­sa­tions this week, there was no short­age of as­ton­ished ad­jec­tives from Melbourne’s lawyers. One bar­ris­ter told me: “The

High Court gave a very strong state­ment ex­press­ing hor­ror and dis­be­lief. I mean, for her to so treach­er­ously ig­nore her obli­ga­tions – it just beg­gars be­lief. It’s a very, very black day for the Vic­to­rian bar. Treach­ery is not a word that’s of­ten used, but it’s ap­pli­ca­ble here. It’s like be­ing a spy. Aid­ing the en­emy. It’s al­most in­con­ceiv­able, and that the po­lice had the chutzpah to do it. I’m as­tounded it’s been al­lowed to oc­cur.”

The vi­o­lated prin­ci­ples were not ob­scure ones, easy to over­look. Rather, they com­prise the bedrock of our le­gal sys­tem. And IBAC’s 2015 Kel­lam re­port was not the first in­de­pen­dent ex­am­i­na­tion of po­lice use of 3838 that found, at best, neg­li­gence. In 2012, then chief com­mis­sioner Ken Lay ap­pointed a re­tired pre­de­ces­sor, Neil Com­rie, to ex­am­ine the use of 3838.

His pri­vate find­ings were clear: “[Po­lice in­former records] taken at face value, in­di­cate that on many oc­ca­sions [3838], in pro­vid­ing in­for­ma­tion to po­lice han­dlers about [3838]’s clients, has dis­re­garded le­gal pro­fes­sional priv­i­lege,” Com­rie wrote. “Fur­ther­more, in some in­stances, it is open to in­ter­pret that such con­duct may have po­ten­tially in­ter­fered with the right to a fair trial for those con­cerned. In the ab­sence of any ap­par­ent ac­tive dis­cour­age­ment from the po­lice han­dlers for [EF] to de­sist with fur­nish­ing in­for­ma­tion on such mat­ters, the han­dlers re­main vul­ner­a­ble to per­cep­tions that they may have ac­tu­ally been in­duc­ing or en­cour­ag­ing the pro­vi­sion of such in­for­ma­tion.

These con­cerns are height­ened in in­stances where han­dlers have passed on such in­for­ma­tion to other po­lice case man­agers, pre­sum­ably so that they may make use of it.”

Com­rie fin­ished by say­ing that the ends did not jus­tify the means – no mat­ter “how no­ble” the out­come. The next year, in 2013, as a re­sult of Com­rie’s re­port, Lay dis­banded the Hu­man Sources De­vel­op­ment unit. At the time, I was an ad­viser to Lay, how­ever I had no in­volve­ment with any mat­ters re­lat­ing to In­former 3838.

So why did po­lice do it? Ul­ti­mately, that’s a mat­ter for the royal com­mis­sion, but the pre­vail­ing view is sim­ple: they were des­per­ate. Melbourne’s gang­land killings – a decade of re­tal­ia­tory mur­ders be­tween war­ring fac­tions in­vested in drug man­u­fac­tur­ing and traf­fick­ing – would claim 36 lives. Men were as­sas­si­nated in pubs, restau­rants and pub­lic car parks, chil­dren wit­nessed killings, po­lice in­for­mants were ex­e­cuted, and leaks and cor­rup­tion thwarted in­ves­ti­ga­tors. “Melbourne was in the grip of what is now widely known as the gang­land wars,” Gra­ham Ash­ton, Vic­to­ria Po­lice’s cur­rent chief com­mis­sioner, said this week. “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. It was, ac­cord­ingly, a des­per­ate and dan­ger­ous time.”

In­former 3838’s stated mo­ti­va­tions were com­plex and con­tra­dic­tory, and sub­ject to ex­am­i­na­tion in court. In a long let­ter to Vic­to­ria Po­lice in 2015, in which she sought ad­di­tional com­pen­sa­tion, she wrote: “As I hope you are aware, I helped be­cause I was mo­ti­vated by al­tru­ism rather than for any per­sonal gain ... 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.”

Court doc­u­ments sug­gest a much sad­der, more com­pli­cated story – a story in which po­lice des­per­a­tion met with 3838’s own. As an old lawyer had warned her, she was in too deep. In

2005, In­former 3838 was rep­re­sent­ing mem­bers of Tony Mok­bel’s drug car­tel – other­wise known as “The Com­pany” – a so­phis­ti­cated, highly lu­cra­tive op­er­a­tion. Mok­bel was ruth­less, ma­nip­u­la­tive and had a sig­nif­i­cant sub­merged net­work of spies and stan­dover men.

At the time, 3838 was suf­fer­ing ex­treme anx­i­ety and de­pres­sion. She felt in­tim­i­dated and un­der­mined by Mok­bel. She told her ther­a­pist that she some­times hoped a train or a tram would fa­tally strike her as she walked to work.

She called it the “Mok­bel mon­key” – a ter­ri­ble spec­tre in her life that she felt help­less to banish. How could she rid her­self of it? Even­tu­ally, she con­spired against her clients. If she helped send them to prison, she could be rid of them. “She said that her mo­ti­va­tion to be­come an in­former arose from her fears that she might be charged as an ac­ces­sory to crimes be­cause she had gained knowl­edge about crimes that were com­mit­ted or were about to be com­mit­ted,” a court rul­ing from last year stated. “She was frus­trated at the Mok­bels’ ca­pac­ity to use lawyers to control oth­ers around them and with be­ing stood over by crim­i­nals.”

It was, of course, a his­toric, cor­rupt­ing and high-risk tac­tic – to banish the Mok­bel mon­key in a man­ner that could fa­tally pro­voke it. It would also even­tu­ally ex­ile her – first from the le­gal com­mu­nity that she had so cher­ished and now, should she en­ter wit­ness pro­tec­tion, from so­ci­ety as she’s known it. If she refuses wit­ness pro­tec­tion, she faces ex­ile from her chil­dren. There are no good choices and her mental health, un­der­stand­ably, is poor. “My treat­ing psy­chol­o­gist has said on oc­ca­sion that were it not for my chil­dren, she does not think I would still be alive; such is the level of my de­pres­sion, anx­i­ety and PTSD,” she tes­ti­fied in 2017.

Last year, in the Supreme Court of Vic­to­ria’s Court of Ap­peal, the jus­tice ar­tic­u­lated the nub of the prob­lem: “A rea­son­able per­son with knowl­edge of these facts might well won­der what end of jus­tice is achieved or ad­vanced by mak­ing the pro­posed dis­clo­sures to per­sons like [the seven con­victed], whose con­duct in many in­stances seems to be of the most se­ri­ous crim­i­nal kind and likely to have caused great harm to the com­mu­nity? Why should they be pro­vided with in­for­ma­tion which may well not as­sist them or which they may not wish to take ad­van­tage of, par­tic­u­larly when the con­se­quence may be the mur­der of EF and harm to her chil­dren?”

The an­swer – that a cor­rup­tion of the crim­i­nal jus­tice sys­tem must be ex­posed, and po­ten­tially reme­died – was reaf­firmed by the High Court. Just how far the fall­out drifts is yet to be de­ter­mined. Be­yond ex­press­ing shock, lawyers were not talk­ing much this week. That might come later. As one prom­i­nent fig­ure told me: “It will be a long time

• be­fore the dust set­tles.”


MARTIN McKEN­ZIEMUR­RAY is The Satur­day Pa­per’s chief cor­re­spon­dent.

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