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. By Martin McKenzie-Murray.
Lawyer X: “Say nice things at my eulogy and enjoy the Royal Commission”
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 four-year-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 co-operated 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 , in providing information to police handlers about ’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.”
This article was first published in the print edition of The Saturday Paper on Dec 8, 2018 as "Lawyer X: Say nice things at my eulogy and enjoy the Royal Commission".
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