The barrister in question – who acted for Victoria Police as a paid informant and cannot yet be named – was the counsel for several notable persons convicted of criminal offences in the past two decades in the state.
Following the lifting of suppression orders on a High Court case involving Victoria Police and the barrister against the Victorian Director of Public Prosecutions, questions have been asked about whether some of the convictions of gangland figures “have occurred fairly and in accordance with law”.
“EF [the barrister’s pseudonym], while purporting to act as counsel for the Convicted Persons, provided information to Victoria Police that had the potential to undermine the Convicted Persons’ defences to criminal charges of which they were later convicted”, the High Court judgment noted.
“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 Full Court held.
“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.”
The integrity of the criminal justice system is paramount, and all people charged with crimes are entitled to a fair trial, no matter who they are, the Andrews government said in a statement.
Victoria Police has assured the state government that “its practices have changed since the barrister’s recruitment as an informant”, and it was further noted that unlawful conduct has not been found with regard to police management of informants.
“The Victorian community, however, has a right to further independent assurance that these past practices have been stamped out, as well as an understanding of what happened in this instance. The royal commission will provide that assurance,” the state government said.
“While these events took place many years ago, the Victorian public has a right to know that every part of the justice system acts fairly and lawfully at all times,” Premier Daniel Andrews added.
The terms of reference will be finalised once commissioners are appointed, but the inquiry is set to consider the “number of, and extent to which, cases were affected by the conduct of informant 3838 as a human source, and the recruitment, handling and management of 3838 as a human source by Victoria Police”.
In addition, it will consider the “adequacy of current management processes for human sources with legal obligations of confidentiality or privilege, including continued compliance with the recommendations of [a 2015 Independent Broad-based Anti-Corruption Commission report]”, as well as “the use in the criminal justice system of information from human sources who are subject to legal obligations of confidentiality or privilege, including whether there are adequate safeguards in the way in which cases are assessed and recommended for prosecution and prosecuted by Victoria Police and the Office of Public Prosecutions”.
Finally, it will examine “recommended measures that may be taken to address any systemic or other failures in Victoria Police’s processes for the recruitment, handling and management of human sources who are subject to legal obligations of confidentiality or privilege, and in the use of such human source information in the broader criminal justice system, including how those failures may be avoided in future.”
“Only a royal commission will get the answers needed so that something like this can never happen again,” said Attorney-General Jill Hennessy.
“Victoria Police has changed the way it handles informants, but a royal commission will provide greater public certainty that these changes are here to stay,” added Police Minister Lisa Neville.
According to the state government, the inquiry will provide an interim report by 1 July 2019 and provide a final report by 1 December 2019.