Criminal Law

By Peter Woodhouse


Informer 3838: an update

The Victorian Royal Commission into the Management of Police Informants kicked off this morning in Melbourne and from the opening statements of Royal Commissioner Margaret McMurdo AC and Counsel Assisting the Commission Chris Winneke QC, it looks as though this one is going to be a doozy.

Controversy surrounding Informer 3838 (also known as “Lawyer X”) swelled in the lead-up to the start of the Royal Commission.  In late January revelations about additional informers and the length of time Informer 3838 had been working with police triggered the resignation of Commissioner Malcolm Hyde.

Last week we saw colourful Melbournite, Mick Gatto, issuing a statement denying making a threat to kill the disgraced barrister.  The statement rejected the allegation made confidentially by a senior police officer recently in the Victorian Supreme Court and noted: “Mr Gatto was never a client of Informer 3838. Not only is the reporting false, it is mischievous and damaging to Mr Gatto.”

Also, in the last month, numerous ‘take-down’ notices’ have been issued by the Victorian Police to various websites and search engines, seeking to expunge the personal details of the barrister from the internet.  Police have also ordered Victoria’s property registry to erase all details of five properties owned by her from ownership records to ensure the woman’s safety.

As I indicated previously, the lawyer’s identity is the worst-kept secret in legal circles and she is obviously well-known to her clients.  She herself told the Victorian Supreme Court that she did not trust the police to keep her safe.

In her opening remarks today, Commissioner McMurdo noted that some members of the public may question the level of outrage expressed at the conduct of Informer 3838 because it ultimately led to offenders being imprisoned.

But, she continued, “these are matters of high principles fundamental to our democracy … the rule of law requires that everyone is answerable to the same laws before independent courts”.

She further noted that the public expects police offers to uphold the law and exercise their considerable power according to law.

“When those who enforce the law breach fundamental obligations, trust is seriously diminished. The police use of lawyers to inform on their own clients has the obvious potential to undermine the criminal justice system and the trust in it.”

The Commissioner also highlighted the significant problems that would flow if people charged with criminal offences doubted their lawyers were acting in their best interest.  Accused people would be less inclined to accept their advice and the criminal justice system would regress into dysfunctionality.

Finally, Commissioner McMurdo noted information the Royal Commission had received which suggests that up to seven other police informants may have also breached legal obligations, including a Court clerk and legal secretary.  Another is understood to have been Joseph “Pino” Acquaro, who was shot dead in 2016 after leaving a Melbourne café.

Counsel Assisting Chris Winneke QC, in his opening remarks, noted the importance of confidence in the legal system in Australia.  He highlighted the rights and protections that had developed over a century and formed part of the bedrock underpinning our society.

Those rights and protections include the right to independent legal representation, the right to silence and for communications with legal representatives to be subject to professional privilege, except in very limited circumstances.

“People should feel comfortable giving full and frank instructions without fear” they will be used against them, Mr Winneke said, as to do so is a “grave breach to the client and court”.

“These are not obscure legal rules – they are at the centre of the justice system”.

The significance of the issues “cannot be overstated”, he concluded, and said legal processes must be “fair and open-handed”.

All members of the community, especially victims, must be able “to trust that the justice system and the individuals working within it will adhere to the highest standards of integrity and propriety.”

In recent weeks there has been a question mark over whether Informer 3838, who has been given the acronym “EF” by the Commission, will assist with the investigation.  From the comments today, it appears she is willing to cooperate, however, given the coercive powers of the Commission to compel witnesses to appear, she does not have much choice.

The scuttlebutt suggests at least 20 convictions are tainted, including many shady characters of the Melbourne underworld, of most notoriety recent stabbing victim, Tony Mockbell.

Court documents have revealed it was the work of Informer 3838 that led to one of Mockbell’s drug cooks being ‘rolled’ by police.  The Victorian DPP believes Mockbell and 7 of his associates may have grounds to overturn their convictions.

It seems this story is going to get even more interesting over the coming months.  The fallout for the Victorian Police Force and the criminal justice system is likely to be quite wide-spread. Watch this space.