First Plaintiff v Defendant

Mr P J Hanks QC with Mr E M Nekvapil, Ms F L Batten and Mr D P McCredden

Dr S B McNicol QC with Mr S Bayles, Mr C T Carr and Mr M Hosking

Victorian Equal Opportunity and Human Rights Commissioner

1. In 2005, Victoria Police registered a practising criminal barrister, referred to in this proceeding as 'EF', as a police informer. Information gathered from her was used to investigate and prosecute crimes. She ceased to act in that role in about January 2009.
2. This proceeding and a second proceeding heard at the same time arise from the Director of Public Prosecutions ('the Director') forming the opinion that he should disclose to seven persons, all of whom have been convicted of serious criminal offences, that their barrister was a police informer. Two of them, Tony Mokbel and Zlate Cvetanovski, are still serving long terms of imprisonment. Four others: George Peters; Frank Ahec; Milad Mokbel; and Karl Khoder, have completed prison terms, and the seventh, Daniel Bednarski, received a suspended sentence. Tony Mokbel and Milad Mokbel are brothers.
3. The Court ordered that the evidence in this proceeding be evidence in the second proceeding and vice versa.
4. Most, if not all, of the seven were part of the 'Mokbel cartel', a description adopted by EF's counsel, to refer to persons associated with Tony Mokbel. Six of them were convicted of very serious drug offences. Four of them gave evidence for the prosecution in various trials after their arrest.
5. The Director sent to the Chief Commissioner of Police, ('the Chief Commissioner') a copy of the disclosure letters that he proposed sending to the seven named persons. Each letter contained the following paragraphs:

IBAC produced a confidential report (the "Kellam Report") last year, relating to the use by Victoria Police of a certain legal practitioner (to whom I will refer as ''3838'') as a registered human source - that is, a police informer.

The matter that I wish to disclose to you is that the material contained in the Kellam Report could be interpreted to mean that at or about a time when 3838 was your legal representative in relation to charges for which you were later convicted, 3838 was also providing information to Victoria Police about you, in possible breach of legal professional privilege and/or in breach of a duty of confidentiality.[1]

1. In addition, the Director's proposed letter to four of the seven named persons, Cvetanovski, Ahec, A Mokbel and M Mokbel contained the following additional paragraph:

Further, I wish to disclose to you that some material contained in the Kellam Report could also be interpreted to mean that certain persons who made statements against you, in the matters for which you were convicted, may have been legally represented by 3838 at or about the same time that 3838 was providing information to Victoria Police about those persons, and possible breach of legal professional privilege and/or in breach of a duty of confidentiality.

1. During the proceedings, the Director informed the Court that the terms of the disclosure letters may alter as a result of the evidence and the submissions made in this proceeding and because of his continuing disclosure obligations. Although the proposed disclosure letters do not name the informer, the plaintiffs contended that they would reveal her identity to the seven named persons or would lead to steps that would do so. Revealing the information to one of the seven would result in revealing it to the other six as well. Neither point was disputed.
2. The issue in the first proceeding is whether the proposed disclosures attracted public interest immunity and therefore cannot be made. The issue in the second proceeding was whether equitable obligations of confidence owed to EF prevented the disclosure letters being sent.
3. The Chief Commissioner, who is identified in this proceeding as 'AB' and the Director, who is identified as 'CD' in part jointly and in part separately identified the key issues in dispute in this proceeding. They describe the essence of the issues to be decided, although I have not followed it strictly. It stated:

1. Does the Court have jurisdiction to grant the relief sought by AB and EF in the first proceeding?

2. What is the legal test for the Court to apply in order to determine whether public interest immunity prevents the Proposed Disclosure ('the PII Test')?

3. For each of the Named Individuals, if CD were to make the Proposed Disclosure to that Named Individual:

(a) If relevant to the PII Test, what is the likelihood that:

(i) 3838 and/or 3838's children would be killed or harmed, having regard to the measures that could be put in place to protect them?

(ii) The future flow of information from informers would be adversely affected?

(b) Is there good reason to think that the Proposed Disclosure may be of assistance to the Named Individual in overturning one or more convictions?

(c) If the answer to question (b) is "yes", what is the degree of assistance that there is good reason to think the Proposed Disclosure may provide to the Named Individual in overturning one or more convictions?

3A. If relevant to the PII Test, is there good reason to think that the non-disclosure of the information that CD intends to disclose will otherwise interfere with the public interest in the administration of justice, for example:

(a) by inhibiting the investigation, by proper process, of possible misconduct by Victoria Police and 3838, and the commencement of possible criminal proceedings;

(b) by inhibiting public discussion of the legitimacy of the tactic of using a lawyer as a police informer, and damaging public confidence in legal professional privilege; and/or

(c) on the basis of the effect on the administration of justice of a lawyer providing information to the police in relation to his or her client?

4. For each of the Named Individuals (applying the PII Test), does public interest immunity prevent the disclosure of the Proposed Disclosure Information to that Named Individual?

5. If the answer to question 4, for one or more of the Named Individuals, is "yes", should the Court exercise its discretion to refuse the relief sought by AB and EF for that Named Individual?

1. In the first proceeding, the plaintiffs, who are the Chief Commissioner and EF, seek the following declarations:

(a) that the Director proposes to provide to the [seven named persons]; and

(b) contained in the IBAC Report, to the extent that the information might identify or endanger the life of a police informer;

1. A declaration that, by reason of public interest immunity, [the Director] is not permitted by law, or otherwise by reason of his prosecutorial duties, to:

(a) send the letters he has drafted to any or all of the [seven named persons], or their legal representatives; or

(b) otherwise disclose the information contained in those draft letters to any or all of the [seven named persons], or their legal representatives; or

(c) otherwise disclose to any or all of the [seven named persons], or their legal representatives, any information contained in the IBAC Report that would:

(iii) tend to identify a police informer and endanger the life of a police informer.

1. There was no dispute that the Chief Commissioner had standing to seek the declarations and orders. EF was joined as a plaintiff and her standing was not disputed.[2] She commenced her own proceeding, the second proceeding, against the Director.

1. EF was admitted to practice in 1996 and signed the Bar role in 1998. She practised as a barrister specialising in criminal law until March 2009 and last held a practising certificate in August 2013.
2. Between about mid-2003 and July 2004, she met approximately six times with a Detective Sergeant of the Purana Taskforce, which was investigating Melbourne gangland crime. She gave him information which was to be treated in the strictest confidence and shared only with his superiors. In July 2004, EF suffered a serious stroke and underwent heart surgery and was unable to work for a long time.
3. In August 2005, after a bail application in which she was briefed to appear for Mr Darren Bednarski, who is one of the seven named persons, was unable to proceed,[3] she was approached by Detective Senior Constable Paul Rowe and Detective Sergeant Steve Mansell.[4] She said that Detective Sergeant Mansell discussed the procedures by which she could assist Victoria Police. She said words to the effect 'If anyone finds out about this, I will be murdered' to which Mansell replied 'Yes, this would have to be managed carefully'.[5]
4. EF was registered as a police informer on 16 September 2005, and remained registered until at least 12 January 2009.
5. The evidence about whether EF approached Victoria Police to become an informer or Victoria Police approached her was inconclusive. It is sufficient to find that EF was willing to become an informer and that Victoria Police was willing to register her as an informer.

1. EF's evidence was that she approached Victoria Police to offer assistance when she was very distressed, in her words 'beside herself'. She remembered walking to court and hoping that a tram hit her or that a car ran over her so that she wouldn't have to face the problems that she was about to face.[6]
2. 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. She was frustrated at the Mokbels' capacity to use lawyers to control others around them[7] and with being stood over by criminals and she felt part of a system in which criminals were able to use lawyers to control and force silence upon people involved in their organisations.[8] In cross-examination she agreed that her sole motivation in becoming an informer was to rid herself of the Mokbels or, as she described them, the Mokbel cartel.[9] She wanted to get the 'Mokbel monkey' off her back. [*Redacted], EF's treating psychologist, understood that EF became an informer as a result of her work as a barrister and involvement with criminal clients. [*Redacted] expressed the opinion that EF wanted to change that involvement situation and considered that the police had taken advantage of her motivation.[10]
3. EF wrote a letter to Assistant Commissioner Fontana dated 30 June 2015, as a result of a suggestion made by Detective Inspector Campbell, to explain her role as an informer and in part, at least, to seek compensation. The letter is long, but I set it out in full, because it eloquently tells EF's side of the story, describing in her words how and why she became an informer, the consequences for her of doing so and what she did for Victoria Police while she was an informant, including the criminals whose charging was assisted by the information that she provided:

I refer to our meetings in 2014 and to the letter I wrote to the then Chief Commissioner Ken Lay (in October 2014) in which I articulated some of my concerns and fears as well as the impact that the revelation of my informer/human source role in the media has had on my life. I refer to and repeat the content of that letter which I will attach to this one in the event that you have not read it.

For the sake of completeness, the response I received from Victoria Police in late 2014 to my letter was nothing but disingenuous and offensive. For the writer to reply by inferring that anyone other than police members were responsible for the leaking of highly sensitive confidential information detailing my role was and is simply absurd.

Of course that was prior to the IBAC report being handed down in which His Honour Justice Kellam made a number of findings, specifically that the manner in which Victoria Police handled me, as an informer/human source, was grossly negligent.

Given that I was not invited to give evidence at the IBAC hearing and nor has any investigator ever spoken to me or offered any kind of explanation as to how not just the fact of my assistance, but the intricate details as well, have become a matter of public knowledge, I remain in a situation in which I accept that this nightmare is not simply going to go away. Nor am I able to take comfort in knowing that those police members who betrayed me have been identified, disciplined or prosecuted. As I think I mentioned to you (or at least to Detective Inspector Ian Campbell), my handlers were aware of intricate personal information about me and when I contemplate where such information may now be, I am disgusted all over again.

As an aside, I consider myself very fortunate that the media appears to have forgotten that when the IBAC inquiry was first announced, their (the Government's) own media release made it clear that the inquiry was not a general one about informers but rather a specific enquiry into the "Lawyer X scandal".

Whilst I am grateful that Victoria Police applied for and obtained an injunction preventing publication of the IBAC findings, it is clear that some of the content of His Honour's report has been leaked to the media. I have accepted that I will have to continue to live with the prospect that more details may emerge publicly and, with the assistance of a clinical psychologist and a doctor, I will need to continue to manage the literally paralysing fears and uncertainty as well as heightened danger that impacts upon my existence.

To enable you to try to comprehend the level of actual stress and anxiety I have to manage, I learned only this week that the Calabrian crime family (Pat Barbaro, Sam Zirilli and co.) have been informed that police were provided with a copy of the Bill of Lading pertaining to the importation of what remains the world's largest ever single seizure of MDMA in 2007; they have been told by a journalist that their Bill of Lading was given to Police by an informer and that IBAC was provided with the same document which was the subject of specific comment by His Honour Justice Kellam in his final report. It is an understatement to say that over twelve months after the public revelation of me being an informer/human source for Victoria Police, the confirmation that an extremely dangerous Italian organised crime family has learned this type of detail is nothing short of horrifying.

To make any kind of long-term decisions about my future is very difficult because of the continuing problems arising from the original leak to the media of the "Lawyer X scandal." 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. I have struggled to cope with the fact that my reputation has been completely destroyed and my ability to obtain employment within the legal profession or even utilising my four degrees and experience is hopeless. A Google search of my name is quite literally sickening (to me) let alone googling "Lawyer X scandal." I also struggle to deal with the fact that any of this has happened given all the assurances I was given (by Police) that my assistance would never be a matter of public knowledge.

I have been forced to live day to day with a degree of hyper-vigilance and fear as to what will come out next and what impact it will have on my life. My anxiety and fears are compounded by the fact that but for some contact I maintain with a handful of former clients (now convicted offenders), neither I nor, more importantly, Victoria Police would be aware of just how dangerous the leaking remains. I have lost faith in assurances I have been given that the IBAC report has not been leaked because it is plainly obvious that the very offenders convicted as a consequence of my assistance are well aware of some of IBAC's findings.

In any event, the whole issue of how and by whom any information about my assistance was leaked to the media and became a matter of public knowledge, let alone the leaking of IBAC's findings, remains a matter for your organisation to investigate or resolve. Obviously if I am forced into litigation with respect to Victoria Police's negligence in failing to keep confidential my assistance and failing in its duty to me as an informer, then the question of which members were involved and who is responsible would be a matter for a Supreme Court judge to consider.

I sincerely hope that I do not have to pursue any of this by way of Supreme Court proceedings; the further damage and stress it would cause me aside, the embarrassment and problems it would create for Victoria Police would be significant.

It has been conveyed to me that it would assist you if I was able to provide details of a "Top 10" kind of list of operations/investigations in which I played a role. It would be unfair and a failure to appreciate the level of my diligence and commitment if that was the only measure by which you assessed my assistance. For that reason, knowing that there are literally thousands of hours of recorded conversations and debriefings as well as many thousands of documents proving without doubt, the immense assistance I provided over a number of years, I am also including some detail as to how and why I began to provide intelligence to Victoria Police and what my assistance included. As I hope you are aware, I helped because I was motivated by altruism rather than for any personal gain.

My actual assistance to Victoria Police began informally via Purana not long after the taskforce was initially formed in 2004. I met as he then was, Detective Sergeant Stuart Bateson on a number of occasions starting in early 2004 which of course was at the height of Melbourne's gangland war and at a time when the refusal to assist police by anyone involved or with any knowledge was frustrating investigators. What lead me to do that was my own frustration with the way in which certain criminals (Carl Williams) were seeking to control what suspects and witnesses could and could not do or say to Police via solicitors who were not in my view, acting in the best interests of their clients because of the undue influence and control of "heavies" such as Williams. I provided Bateson with information that was of value to investigators in the months prior to suffering a stroke in late July 2004 and again afterwards. In the lead-up to my illness, I played a pivotal role in convincing Thomas Hentschel to "roll over" on Williams, Victor Brincat and others and withstanding undue pressure from the Williams' crew (and Tony Mokbel) to try to get him to stay silent. I kept Bateson informed of all of this including solicitors perverting the course of justice and conspiring with criminals to try to ensure a number of gangland murders would remain unsolved or uncharged. As has been documented in the years that followed Hentschel deciding to help police, his actions (in becoming a witness for Police) created a precedent for others to follow and was the crack in the damn wall of silence that lead to a flood. He laid the foundation for the prosecution of numerous murderers and others followed his example.

During 2005 I became aware of high-level drug trafficking, money laundering, witness tampering, firearm offences and a variety of other serious criminal activity by virtue of the contact I had with certain clients and their "crews" and "supporters". I also watched as Police either totally failed to investigate much of this offending or, failed in being able to obtain evidence to be able to arrest and charge offenders.

By September 2005 certain events and circumstances lead to me formally starting work as registered informer 3838 (again as an aside, journalists have used that detail as well as the names of my handlers when informing me of the information police sources have provided to them). My breaking point came when I was threatened by Tony Mokbel to ensure that a first-time offender who was operating pill presses and manufacturing tens of thousands of MDMA pills for him, kept his mouth shut and pleaded guilty after he was arrested by the then MDID.

Although Mokbel did not actually say that his underling was being financed and supplied by him, it became obvious to me when I was provided with a remand summary and later a brief of evidence by Police. This kind of scenario had happened numerous times in circumstances in which I was dealing with high-level drug syndicates, all of whom had individuals who were the targets of police investigations and many of which were involved, directly or indirectly with the gangland murders.

To try to encompass my actual value, reliability and work for Victoria Police in any summary is immensely difficult because from 16 September 2005, I spoke to my handlers on a daily basis, ·often 7 days a week for a couple of years. Again, the media has informed me, that there are approximately 5500 Information Reports generated from information I provided to Police. There was no topic, criminal, organised crime group or underworld crime that was "off limits" during the many debriefing sessions that occurred or during the years that followed until Overland decided to utilise me as a witness in 2009 when everything fell apart. I didn't appreciate that at the time I made the decision to become a witness for Victoria Police I had been put in a situation in which every assurance given to me was a lie and more importantly, that the investigators who took my statement were not made aware of the very real problems with respect to my safety and status.

As you are no doubt aware, that lead to me issuing civil proceedings against Overland after enduring 18 months of severe stress and uncertainty when no-one seemed to be capable of making any decision about what to do with regard to the issue of dealing with my informer role when I was called to give evidence. Those proceedings resolved at a mediation in late 2010 (again as an aside, the evening before that mediation my gynaecological oncologist had diagnosed me with the return of cancerous tissue that required surgery and foremost in my mind then and in the time that followed was my health). For completeness, as I am sure you are aware, those proceedings were public and the Writ did not include any reference to my role as an informer. (I do not want there to be any suggestion that I have previously been compensated in any way for my assistance to Police.)

I subsequently spent a fortune getting my life and health back together and by 2014 when the nightmare of my informer status being made public started, I had managed to regain my health to the level of being able to conceive a daughter after 15 months of IVF treatment and I had also overcome great difficulties within the legal profession and been able to do some casual work as an employee solicitor.

Since the "Lawyer X" publicity started, it would be fair to say that my mental, emotional and physical health are in decline and I feel the impact of this nightmare almost every single day. In addition to my anxiety, fear, severe depression, PTSD and paranoia, my reputation is gone and I will ever be able to work as a lawyer again. The legal community in Victoria including its judiciary have formed a view that means I have now lost many friendships and relationships (professional and personal). Ironically, but for some limited communication with a few of the criminals that I helped to convict (and that communication comes with its own stress), I would be unaware of some of the dangerous and life-endangering detail that the media continues to reveal (from what I understand to be their police sources as well as leaks from the IBAC findings) and more importantly, so would Victoria Police.

I make these comments because I would like you to try to put yourself in my shoes for a moment to try to comprehend my almost complete disillusionment with the very organisation which assured me as an informer, that what I did for Police and the detailed information I provided, would remain a highly protected secret and would never see the light of day.

Now, but for my children and a handful of loyal supportive friends and family, each day is a nightmare as to what might come out next or indeed, the consequences for my safety and wellbeing.

For the avoidance of any doubt, during the time I was working as an informer for Victoria Police, with the exception of a couple of token thank yous (including a pen) I, unlike any other informer, did not receive any financial assistance or support to enable me to work as an informer. In fact the contrary is true. I paid for all kinds of things that Police usually provide finance for such as incessant phone calls to criminals, entertaining (coffees not alcohol), countless trips to prison etc. In addition, the greatest impact was upon my practice because I had to invent reasons to excuse myself from accepting a multitude of briefs to appear for various Accused because I had a conflict of interest in so far as I had contributed directly or indirectly to those persons being arrested and charged in the first place.

One of the more insane costs borne by me was having to pay for the monthly spend of $190.00 for George Peters after his arrest and remand. Those payments went on for months and months as well as $1100 for his computer. The fact was that in order to obtain the detail of his manufacturing including the location of labs, I had to spend considerable time with him so he perceived there to be more of a friendship that there was in reality. Once he was arrested and with my support and intervention, decided to assist police and make [*Redacted] statements and become a star prosecution witness, he was isolated and had almost no friends to rely upon for support. Your organisation will have records of the actual expenditure on my part where Peters is concerned because eventually Purana took over those payments (without George knowing obviously).

My point is essentially that I was not given any money at all as it seemed to be taken for granted that whatever I had to outlay to spend time with those, whom I informed on, would be borne by me because I was working and had an income. I took no issue with this at the time because Detective Inspector [*Redacted] assured me that this would all be taken into account whenever I finished and made application for a reward. On that note, you should be aware that I was advised by [*Redacted] himself when I spoke to him for the last time in early 2009, that his crew had finished what he referred to as an "A to Z" of the extent of my assistance to Police and that when any reward application was made that report was finalised and ready to be produced. Fortunately for me all those meetings were recorded by Victoria Police lest you be in any doubt as to the veracity of what I am saying I was told.

There were a total of 386 people arrested and charged that I am specifically aware of based upon information I provided to Victoria Police but there are probably more because as you would know, I did not always know the value or use of some of the intelligence that I was providing. There was over $60 million in property and assets seized/restrained based upon my assistance and intelligence (a fact reported in the Age in an article about the results obtained by Purana in decimating the gangland criminals in 2009).

My motivation in assisting Police was not for self-gain but was rather 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. I maintain (despite what I understand from the media to be an incorrect ill-informed view taken by IBAC based upon who knows what version of events), that anything told to me or said in my presence about crimes being planned or committed cannot ever fall under the protection of legal professional privilege by a client. Most significantly, I did not approach the Police because I had committed (nor have I since) any crime for which I required some kind of "get out of jail free card" as is most often the reason people choose to assist Police.

1. Karam, Higgs, Barbaro and 33 co-accused for the largest ever seizure of ecstasy in the world
2. Horty Mokbel, Milad Mokbel and their co-accused and associates such as Stephen Gavanas

1. Joe Mannella (and Karam) for the multiple seizures of hundreds of kilos of cocaine and other drugs that were not the subject of charges but were intercepted and seized by Australian Customs

1. Alf Traglia (as a result of information provided by me, Purana were able to get him to a position where he was confronted with a mountain of evidence which lead to him becoming a witness for Police)

1. Mick Gatto and the Carlton crew (regrettably this was a work in progress when I was handed over to Petra as a witness)
2. Kamel Khoder [*Redacted], money laundering for various criminals principally the Mokbel family and associates. As a finance broker he obtained fraudulent loans for anyone referred to him; despite his conviction and the confiscation of all his properties he is still committing frauds via false loan applications and deceptions.

Once again, I am, if necessary, prepared to meet with you to try to reach a mutually acceptable agreement. Again, I would ask you to consider this option seriously because it is in no-one's best interests for my role and involvement as an informer/human source to be detailed in a Writ or explored in civil proceedings.

I look forward to your earliest reply.[11]

Conclusions about EF's motivations in becoming an informer

1. The evidence suggests that EF had a mix of motivations for becoming an informer. She had suffered a serious stroke and felt trapped in the criminal world of her clients. She was frustrated with the way criminals used the system and she wanted to be rid of the Mokbel cartel. However, she wished to continue her practice as a criminal defence barrister. She considered that she had assisted Victoria Police and the justice system by providing information that led to the arrest of many persons.

Victoria Police assurances of confidentiality to EF

1. On 16 September 2005, EF met with Detective Senior Sergeant [*Redacted] and Detective Sergeant [*Redacted] of the Source Development Unit. She told them: 'I don't want anyone to know about this'. [*Redacted] said words to the effect 'the fact of our meeting and the matters we discuss will remain confidential, nothing we discuss will ever be made public'.[12] At about that time, DSS [*Redacted] said: 'you need to trust us fully, but we cannot entirely trust you, because of the nature of the relationship. Trust is something that is earned'.[13]
2. She told [*Redacted] of her fears of Tony Mokbel and what he would do to her if he found out that when acting for other clients, she had assisted them to look after their own interests rather than his.
3. EF gave evidence that during their first or second meeting, DSS [*Redacted] told her that: she would never be revealed as an informer or called as a witness and that information she provided would be disseminated within Victoria Police without identifying her as the source. She would never be used, as some informers were, to introduce an undercover police officer to a target as to do so would present too great a danger of her identity as an informer being revealed.
4. EF identified two categories of informers, the first being a person purely in the background, never to be introduced as an undercover operative or carry out drug transaction or require immunity from prosecution. The second category of informers included persons facing criminal charges and involved in specific transactions and activities.[14] She considered herself in the first category. She was repeatedly assured that if documents were subpoenaed which might identify her, that the Victoria Police would fight and claim public interest immunity.[15] She did not believe that her life would ever be at risk by her identity being revealed.[16] But, she believed that if it was revealed, she would be killed, 'by a bullet in her head or something else lesser'.[17] She told her handlers that 'If this gets out, say nice things at my eulogy, because I will be gone - and enjoy the Royal Commission'. She said that her strategy was one of plausible deniability to 'hide in plain sight'.[18]
5. EF was asked about a recording of her conversation with police handlers on 15 June 2007 where she asked the question, 'somebody tell me not to do it.' She explained that she often asked for guidance from her handlers. The response she got was 'we can't tell you, for operational reasons.'[19]
6. At a meeting on 16 September 2005, Detective Sergeant [*Redacted] said:

But you know, your concerns are very, very valid. I am not going to sit here and say that bad things haven't happened in the past, because you know very well that they have. We know that the person you want to talk about has got the capacity to hurt people, significantly hurt people, and you are in a position of concern I suppose, and we're taking that seriously.

At this point I'm happy to just have a discussion about what it is that you might have to offer and whether we can actually progress that in a way that's safe for yourself.[20]

Perhaps also we could say that we are here to look after your interest which in turn looks after ours. We do the right thing by you that covers us as well. Not here to... All these things, that we may put in place down the track they're to cover both sides, but they're primarily to look after you.

1. The Director contended that EF must have known that there was no absolute protection of an informer's identity.[22] He pointed out that EF had appeared as junior counsel for Tony Mokbel before Gillard J on 29 September 2005 in a subpoena application, seeking information from the Office of Police Integrity relating to informers and police officers investigated with drug-related criminal offences. In his judgment, Gillard J discussed the protection that the law gave to an informer's identity.[23] His Honour noted that an exception to the protection of an informer's identity existed:

where on the trial of a defendant for a criminal offence, disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls on the side of disclosure.[24]

1. I accept EF's evidence that Victoria Police assured her that her identity as a police informer would be kept confidential.

1. On 6 February 2015, the Honourable Murray Kellam QC, acting as delegate of the Independent Broad-based Anti-corruption Commission ('IBAC') prepared a report titled 'Report concerning Victoria Police handling of Human Source code name 3838' ('the Kellam Report'). The Kellam Report concerned Victoria Police's use of a registered human source, source 3838, described as a 'well-known barrister' specialising in criminal law and acting for a number of high profile clients involved in criminal proceedings and criminal activities.
2. Among other things, Mr Kellam found that:

(a) Victoria Police used EF as a registered human source between 16 September 2005 and 12 January 2009;

(b) During that time, EF continued to act as a barrister practising criminal law in Victoria;

(c) The information that EF provided to Victoria Police included information obtained from her clients, which was prima facie subject to legal professional privilege or otherwise confidential; and

(d) EF maintained daily contact with her handlers, who disseminated information provided by her to various taskforces within Victoria Police. [25]

1. The Kellam Report identified, as examples, nine people about whom EF provided information to Victoria Police who were subsequently convicted of serious criminal offences. Eight of those persons have been prosecuted by the Office of Public Prosecutions Victoria ('OPP'), and two have been prosecuted by the Commonwealth Director of Public Prosecutions ('CDPP').[26]

1. Before the Kellam Report, former Chief Commissioner Neil Comrie prepared a case review of Victoria Police's general handling of EF and in particular the application of policies, control measures and managerial supervisory practices relevant to her handling during the period of September 2005 to January 2009. Mr Comrie said in his review:

Entries contained in [EF]'s ICRs, taken at face value, indicate that on many occasions [EF], in providing information to police handlers about [EF]'s clients, has disregarded legal professional privilege. 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.[27]

Some particular handlers seemed keen to take full advantage of [EF]'s capabilities by also seeking tactical advice about the best way to disrupt activities of certain clients of [EF] and even information about where points of vulnerability may lie for prosecutions.[28]

1. Mr Comrie's review reflected the concern that despite clear indications from some Victoria Police members of their advertence to the particular risks and consequences associated with utilising EF, Victoria Police members, including senior members, did not appear to have addressed such issues, with the consequence, inter alia, that certain convictions of clients of EF may be 'open to claims of being unsafe'.[29]
2. Mr Comrie stated:

The primary purpose for engaging an informer is to obtain information about crime, criminals and criminal activities. Clearly, cultivating and forming an informer-type of relationship with a lawyer would potentially provide avenues to information about the criminal activity of the lawyer's criminal clients, for the benefit of related investigations. However, the appropriateness of such tactics raise significant and readily identifiable legal and ethical considerations which cannot be set aside because noble outcomes can be anticipated to result.

The ends and means concept was considered by the New South Wales Independent Commission Against Corruption in its January 1993 publication on the use of informers where it indicated:

What it all this comes down to is that wrongful means must not be used to achieve noble ends. There is no point trying to enshrine that proposition in rule or regulation. It is simply a question of integrity, and that depends upon organisations being imbued with an ethical sense, and the ultimate moral responsibility of individual officers.[30]

That an appropriately qualified Victoria Police analyst review the entire 3838 file to ensure that:

(a) All issues of significance have been identified.

(b) Appropriate actions/notifications/referrals are made concerning such issues; and

(c) The file reflects reasoning and approval for all recommended action / inaction.

1. Detective Acting Superintendent Monique Swain works in the Organised Crime Division, Crime Command at Victoria Police and has been a member of Victoria Police for approximately 29 years. Her substantive role is Detective Inspector in charge of the Clandestine Laboratory Squad. She gave evidence that in response to recommendation 20(a) of the Comrie Review on 29 January 2013, Victoria Police commenced an investigation titled Operation Loricated, which over 18 months compiled in one folder, electronic versions of all available source documents relating to EF's utilisation; and created a web based program titled Operation Loricated Web-Based Solution, which allowed for easy navigation of the information contained in the source documents with links to electronic versions of the source documents.
2. In April 2014, Operation Bendigo was established to assess a number of potential legal conflict issues centred on intelligence gained from EF. Its steering committee's role was primarily to oversee the protection and management of EF, to oversee and coordinate legal actions and manage conflict of interest issues. The steering committee identified five examples of possible legal conflicts in relation to EF; one of them related to information supplied by EF about George Peters.
3. In May 2014, the Operation Bendigo Investigation Group was established to review the five examples to establish if there were any possible legal conflict issues arising from the information derived from EF. That Group completed a report detailing its review in relation to Mr George Peters.
4. Detective Inspector Swain gave evidence that there were over five thousand informer contact reports ('ICRs') with EF.[31] Mr Comrie gave the following description of the ICRs:

The ICR provides an electronic narrative, or log, of matters discussed which the handler [*Redacted] can distil from any notes taken at the time and from memory. Handlers are required to submit ICRs electronically via Interpose to the controller for endorsement. Handlers are also required to brief their controller following contact with the source. Policies reflect that, at a maximum, ICRs are to cover no more than a seven day period. ICRs are retained within the Interpose file for the particular purpose.

ICR instructions, current at the time of recruitment of 3838, required the handler to as soon as practicable following contact, to complete and submit an ICR and to brief the controller and OIC on the content of the ICR. The ICR was retained on what was known as the informer management file.[32]

1. The extracts from police diaries and ICRs on which the ICRs relied suffer from incompleteness, a lack of the context of the circumstances to which they refer and unreliability. The probative value of those documents in determining issues about EF's role was, in many instances, unclear. The police diaries are handwritten and in many instances are difficult to read and therefore did not permit the drawing of firm conclusions. Mr Comrie noted the limitations in the ICRs, or parts of the ICRs, that were available to him.[33]

1. The parties called a number of witnesses. In the Chief Commissioner's case, evidence of senior police officers and of EF's treating doctors was called. Other affidavit evidence was tendered. The Director's affidavits and the affidavit of the Senior Legal Advisor to the Director were tendered. EF gave evidence over five days. Many documents were tendered including ICRS and other police intelligence. The Amici tendered a number of ICRs and transcripts of recordings of conversation between EF and police officers. Those that were put to EF and with which she agreed were admitted into evidence absolutely. Some documents and some parts of the affidavits were admitted into evidence subject to limitations directed under s 136 of the Evidence Act 2008[34] or made by agreement of the relevant parties.
2. EF agreed that there were no real errors in the ICRs that she had read.[35]

1. Recommendations 12 and 16 of the Kellam Report were:

12. That the Chief Commissioner of Police provide a copy of this Report (including its annexures) together with such other material as he may consider appropriate to the Director of Public Prosecutions for consideration at the highest level, as to whether any prosecutions conducted by the DPP in the past and based on evidence provided by VicPol, which evidence may have been obtained by reason of breach of legal professional privilege or release by the Source of other confidential material has resulted in a miscarriage of justice.

16. That this report should be accorded the highest level of confidentiality by all persons to whom it is disseminated. Failure to accord such confidentiality would be highly likely to increase the already significant danger to the life of the Source referred to in this Report.

1. Using the OPP's database, Mr J Champion SC, the Director of Public Prosecutions, ascertained that in the period between 16 September 2005 and 12 January 2009, EF appeared in 304 separate hearings in matters prosecuted by the OPP, on behalf of 143 separate accused persons.[36]
2. On 12 February 2015, in accordance with recommendation 12 of the Kellam Report, the Chief Commissioner of Police, Mr Graham Ashton, provided the Director with a copy of the Kellam Report.
3. On 23 February 2015, in accordance with recommendation 12, the Director's office commenced a review to be commenced of the prosecutions of seven of EF's former clients that Mr Kellam had used as examples. The other client had been prosecuted by the CDPP.
4. Based on the review, the Director prepared a confidential report for the Attorney-General, the summary of conclusions stated:

(a) Recommendation 12 of the Kellam Report obliged [me] to consider whether as a result of the activities of [EF] and Victoria Police, there were, or possibly were, miscarriages of justice that occurred in respect of named individuals.

(b) From my examination of the matters contained in the Kellam Report, and from enquiries made of materials held by the Office of Public Prosecutions, I am unable to conclude that miscarriages of justice have occurred in the criminal proceedings relating to the 'case-study' individuals discussed in the Kellam Report.

(c) The extent of my examination has been necessarily limited as I do not have knowledge of, or access to, all the evidence and information relating to the activities of [EF]. Such materials are likely to be in possession of Victoria Police.

(d) Having received and considered the matters raised in the Kellam Report I am firmly of the opinion that I am obliged to disclose the contents of the Kellam Report to those that may be affected by the matters discussed therein. That disclosure should occur expeditiously.

(e) The continued personal safety of [EF] is a matter of immense ongoing concern. Disclosure of the contents of my review, the Kellam Report, and the materials underpinning that report, will almost certainly result in extreme danger to the source.

(f) Disclosure will require careful management, and will require full co-operation of relevant agencies.

1. The Director referred to his publicly available policy on disclosure and on post-conviction fresh evidence, disclosure and avoidance of miscarriages of justice. The Policy in summary is that:

Subject to any claim of public interest immunity or legal professional privilege, or any statutory provisions to the contrary, the prosecution must fulfil its disclosure obligations under the Criminal Procedure Act 2009 and disclose to the accused any other material which:

(a) is relevant or possibly relevant to an issue in the case; or

(b) raises or possibly raises a new issue whose existence is not apparent from the evidence the prosecution proposes to use;

(c) holds out a real as opposed to fanciful prospect of providing a lead to evidence which goes to (a) or (b).

...

The prosecution duty of disclosure does not extend to disclosing material:

(a) relevant only to the credibility of the defence (as distinct from prosecution) witnesses;

(b) relevant only to the credibility of the accused person;

(c) relevant only because it might deter an accused person from giving false evidence or raising an issue of fact which might be shown to be false;

(d) for the purpose of preventing an accused from creating a forensic disadvantage for himself, if at the time the prosecution became aware of the material it was not a relevant issue at trial.[37]

1. The Policy gives as its reason for disclosure that:

It is a longstanding tenet of the Australian criminal justice system that an accused is entitled to know the case against them so that they can properly defend the charges. An accused is entitled to know the evidence that will be adduced in support of the charges and whether there is any other material which may be relevant to the defence of the charges.

The prosecution's duty of disclosure arises out of the accused's right to a fair trial and is part of the prosecutor's obligation to act fairly. A failure to disclose may result in a miscarriage of justice.[38]

1. The policy mentions public interest immunity in the following passage:

Where it may be appropriate to refuse disclosure of material on the basis of public interest immunity, the matter should be discussed with the informant and the Crown Prosecutor or the DPP. Where disclosure of material is refused on public interests grounds, this should be communicated to the defence in writing including the basis for the claim in general terms unless to do so would reveal that which it would not be in the public interest to reveal. Unless the DPP decides otherwise, any disputes about public interest immunity should be litigated by counsel briefed by Victoria Police, not the prosecution.[39]

1. The Director's obligation of disclosure applies to information that he gains following the conclusion of criminal proceedings and thus applied to information that he gained from, and as a result of, the Kellam Report in respect of the seven named persons.
2. The Director has a Policy concerning Attitude to Post-Conviction fresh evidence, disclosure and avoidance of miscarriages of justice. It states that:

The purpose of this Policy is to outline the approach to be taken with respect to the Prosecution's obligations to disclose matters that come to the knowledge of the Prosecution after the completion of all trial and appeal processes that may cast doubt on the conviction or where fresh evidence is brought to the attention of the Prosecution after the conclusion of the trial.

1. The Director's policy is that information, which comes into the possession of the Prosecution after the conclusion of the trial and/or appeal process and would have been disclosed had it been received prior to the conclusion of that process, should be disclosed to the defendant and his legal representatives. OPP staff should consult a Crown Prosecutor and/or the Director prior to disclosing any such material as referred to above.
2. Lord Hughes in the United Kingdom Supreme Court described this aspect of the duty of disclosure as:

There can be no doubt that if the police or prosecution come into possession, after the appellate process is exhausted, of something new which might afford arguable grounds for contending that the conviction was unsafe, it is their duty to disclose it to the convicted defendant.[40]

1. The Director stated that in his view, consistently with his common law obligations and his policies on disclosure, he had an obligation to disclose at least some of the contents of the Kellam Report to those who may have been affected by the matters discussed in it. That view led to his letters containing his proposed disclosures.

The Director and Victoria Police's discussions about the disclosures

1. Senior Victoria Police officers and the Director discussed the issue of whether he should make the proposed disclosures. On 10 March 2016, he informed the Chief Commissioner of his view, but also stated that, 'the continued personal safety of [EF] is a matter of immense and ongoing concern' and that no disclosure would take place until he and his office had discussed the safety of [EF] with Victoria Police.[41] The Director's letter stated in part:

It appears to me highly likely that on a number of occasions [EF] acted improperly in informing against her own clients. It appears highly likely that there were breaches of legal professional privilege, and of confidences between the lawyer and the client on multiple occasions, over a lengthy period of time. There were, almost certainly, serious conflicts of interest occurring in her actions. It may be that information was provided to police that did not fall into the categories I have identified above. The overall circumstances of the role and activity of this person, and the associated legal implications, may be extremely difficult to unravel.

Having received and considered the matters raised in the Kellam Report, and having formed my views of the seriousness of the behaviour carried out by [EF], I am firmly of the opinion that I have an obligation to disclose at least some of the contents of the Kellam Report to those that may be affected by the matters discussed therein. That disclosure should occur expeditiously. It is not intended by me to provide a copy of the Kellam Report to any person, nor a copy of my review. However, it will be necessary to provide sufficient information in order for those people affected to embark on a rational and informed decision making process as to what steps they may wish to take from this point onwards.[42]

1. On 17 March 2016, the Commissioner of the Independent Broad-based Anti-corruption Commission ('the IBAC Commissioner') wrote to the Director stating his belief that there were strong grounds, in particular of public interest immunity, for not further disclosing or disseminating any parts or summaries of the Kellam Report. He noted that s 41 of the Independent Broad-based Anti-corruption Commission Act 2011 ('the IBAC Act') provided a possible basis for further dissemination of the Report. Section 41 permits IBAC to provide or disclose information that it has acquired to particular bodies, for example, an integrity body, a law enforcement agency or a prosecutorial body. The IBAC Commissioner stated that any disclosure, even under conditions of the strictest confidence, would generate a risk that convicted persons, or their associates, would gain access to parts of, or summaries of, the Kellam Report. In those circumstances, a threat of the utmost gravity to the safety and wellbeing of EF would result.
2. The Deputy Commissioner (Special Operations) of Victoria Police, Mr Shane Patton replied to the Director on 23 March 2016 noting the Director's expressed concerns for EF's safety and requesting the Director wait until a further risk assessment could be conducted and legal advice obtained.[43]
3. The Deputy Commissioner, informed the Director in a letter of 20 April 2016 that Victoria Police had conducted a further risk assessment, which indicated that the proposed disclosures would increase the likelihood of EF's death from 'possible' to 'almost certain' and the overall risk of death from 'high' to 'extreme'. The Deputy Commissioner stated that in those circumstances, the Director was not required to make any disclosure of the information, and it would be wrong to do so. He referred to legal advice from counsel, that if the Director remained unsure about whether the information can be withheld on the basis of public interest immunity, he should approach the Supreme Court on an ex-parte basis and seek a ruling.[44] The Deputy Commissioner invited the Director to request any further material that he may require to 'give full and complete consideration' to recommendation 12 of the Kellam Report.[45]
4. On 14 June 2016, the Director sought from Victoria Police the name of persons for whom EF acted as defence lawyer in prosecutions between 16 September 2005 and 12 January 2009. He also sought the names of each individual about whom EF provided information to Victoria Police and who, as a result, was charged with an offence.
5. On 17 June 2016, the Victorian Government Solicitor's Office on behalf of the Chief Commissioner responded to the Director stating that it appeared that the information the Director had requested was not relevant to advancing the resolution of the issues that by then were before the Court.[46] On 29 June 2016, following the Director's further requests for that information, the Chief Commissioner responded that the requested information would have to be assembled; a task that was likely to involve considerable judgment and discretion. He was willing to provide material to the Director so that his office could undertake that analysis.[47]
6. EF submitted that the Director did not take advantage of offers that it might review police records, but I do not consider that anything turns on that.

1. A significant issue in both proceedings was that the seven named persons had not been notified that the proceedings had been commenced and took no part in them. On 10 August 2016, the Director raised the issue of whether it was appropriate to appoint special counsel in the proceeding. I invited written submissions on that question which are summarised below.[48]
2. In written submissions dated 19 August 2016, the Director submitted to the Court that it was necessary that an amicus curiae or special counsel be appointed to advance propositions that the Director felt it was constrained from making, namely the proposition that:

It is in fact the case that there is good reason to think that the disclosure of the information that the Director intends to disclose may substantially assist one or more individuals to establish that there was, or may have been, a miscarriage of justice in relation to his or her conviction.

1. The Director wished to maintain a neutral position with respect to the particular interests of the named persons to prevent any possible future conflict in the event that he would participate in future proceedings related to their convictions. The Director submitted that though counsel acting as Amici would in a broad sense be advancing arguments that were in the interest of the named individuals, they would not be acting for those persons and would have no contact with them. Therefore, the description of amicus curiae should be applied rather than special counsel, which implied a lawyer-client relationship. The Director further submitted that the appointment was not premature.
2. The Chief Commissioner made similar submissions to the Director, although submitting that it was premature to appoint an amicus curiae until the Court of Appeal had progressed Mr R Karam's applications, to which reference is later made.
3. On 8 September 2016, I ruled that counsel should be appointed to act as Amici and invited the parties to discuss appropriate arrangements for their notification and appointment. On 2 November 2016, I ordered that particular counsel be appointed as Amici to identify arguments that opposed the relief sought by the plaintiffs in this proceeding. I stated that the Amici were appointed on the basis that they did not act for the named persons, nor owe any duty of care to the named persons, nor to any other person whose interests may have been affected by the proceeding.[49]
4. The Amici played an important role in the proceeding both cross-examining witnesses and making detailed submissions.

Victorian Equal Opportunity and Human Rights Commission's submissions

1. The Victorian Equal Opportunity and Human Rights Commission, ('the Commission') intervened in the first proceeding pursuant to s 40(1) of the Charter of Human Rights and Responsibilities Act 2006 ('the Charter'). The Commission made submissions that were related to the interests of the seven named persons in a fair trial. The Commission did not intervene in the second proceeding. The Commission filed written submissions about two questions concerning the Charter's application, namely:
   1. whether, and if so how, ss 9, 13, 21, 24, 25 and 38 of the Charter are relevant to the central issue in this proceeding: whether the public interest in protecting the identity of a police informer precludes disclosure by [CD] of information that might assist a convicted person to have a conviction quashed; and
   2. whether, and if so how, ss 9, 13, 21 and 24 of the Charter are relevant to the question of whether the court can and should determine the issues raised by [AB] and grant the relief sought in the absence of any extant criminal proceedings and where the convicted persons directly affected by the issues have not been named as parties to the proceedings, are not represented in the proceedings, and have not been notified of the proceedings.
2. The Commission's submissions focused on the second question, which it identified as a threshold question. The threshold being whether it was possible to conduct a trial about matters relating to the convictions of the named persons in their absence, and to do so consistently with their rights under the Charter and common law to a fair trial. The trial referred to was the first proceeding. The Commission submitted that if the Court was unable to ensure that the seven named persons were able to receive a fair trial then it may have no alternative but to refuse the relief sought by the Chief Commissioner and EF.
3. The Commission submitted that the Court was obliged to apply and enforce rights that applied to its proceedings. Section 24(1) of the Charter provides that:

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.

1. While in form the trial was a civil proceeding, in substance, the proceeding should be considered an 'associated process' of a criminal proceeding and the protections afforded by the Charter that relate to criminal proceedings should also apply.[50] Those protections included s 25(2)(b) that provides:

(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees -

(b) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her;

1. The Court was obliged by the operation of s 6(2)(b) in conjunction with the right to equality before the law under s 8(3), to ensure that its procedures protected the named individuals' rights to be equal before the law. The right to a fair hearing expressed in the Charter was also a fundamental common law right and they ought be treated as mutually reinforcing.[51]
2. The Commission submitted that disclosure of material held by the prosecution to the defence was fundamental to the right to a fair hearing, citing the House of Lords decision in R v H that describes full disclosure as a 'golden rule':[52]

Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.[53]

1. The Commission made several observations about how the decision to order disclosure in those cases differed from the present cases, stating:

First, consideration of the issue of disclosure should ordinarily take [place] while the criminal charges against the accused are pending.

Secondly, in order to determine whether disclosure should be made, the court must consider the material that is sought to be withheld in detail.

Thirdly, any restrictions on the involvement of the defence should be the minimum necessary to protect the rights of others or the countervailing public interests.

Fourthly, any restrictions on the involvement of the defence should be sufficiently counterbalanced by alternative procedures adopted by the court such as, where necessary, the appointment of a special advocate to represent the interests of the defence.

Fifthly, there may be cases where some measure of disclosure to the defence will not be possible, but they will be exceptional.

Sixthly, there may also be cases where, despite the alternative procedures put in place, non-disclosure would render the trial unfair. Such cases may also be exceptional, but where they occur, the court must order disclosure, even if this will be likely to lead to the prosecution being withdrawn to avoid disclosure.

1. The Commission submitted that the Court must be satisfied that the procedures adopted to determine whether the disclosure should be made are sufficient to render the proceedings in their entirety fair. The Court had to decide whether the absence of notice to the named individuals was a reasonable limit on their right to a fair trial that could be demonstrably justified in a free and democratic society. It submitted that the application of s 7(2) would not permit the Court to conduct something less than a fair trial, rather, it only meant that some limitation on disclosure may be consistent with the right to a fair hearing. Section 7(2) of the Charter provides:

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(b) the importance of the purpose of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

1. The Commission submitted that rights may be limited not only in recognition of countervailing public interests but also to protect other rights. Accordingly, in assessing the proportionality of the limitation on the rights of the seven named individuals, other relevant Charter rights must be taken into account to the extent that they arise on the evidence. Such rights are EF's and her children's: right to life (s 9); right to liberty and security of person (s 21); right to privacy and reputation (s 13); and the rights to protection of families and children (s 17).
2. As to the second question, the Commission ultimately accepted that there did not appear to be any means of giving some form of notice of the proceeding to the seven named individuals that would be equally effective to protect the countervailing public interests and the rights of EF and her two children. However, the Commission did submit that:

(a) The potential disclosure relates to the content of the letters proposed to be sent by the Director, not the underlying evidentiary material. The Court had not been presented with the underlying evidence in the seven named persons criminal proceedings and thus could not consider all of the potentially disclosable material.

(b) That because I was not the trial judge of the prosecutions of the seven named persons, I was not familiar with all of the evidence against the named persons. However, that was not necessarily inconsistent with the right to a fair hearing provided the Court is satisfied that it has sufficient appreciation of the potential significance of the potentially disclosable material to the named persons' putative appeals to make a fair assessment of the substantive issue. On the other hand, this factor could lead the Court appearing to have a greater impartiality.

(c) No special advocate had been appointed to represent the interests of the seven named persons, and as such, the Court should assess whether the presence of the Director and Amici were sufficient to counterbalance the absence of the convicted persons.

1. As to the first question, concerning the substantive issue in the first proceeding, the Commission submitted that if the Court were satisfied that the proceedings could be conducted as fair trials or proceedings, then relevant rights under the Charter should be taken into account as part of the public interests to be balanced in deciding whether the proposed disclosures were prevented by public interest immunity. The Court should consider the named persons' rights to fair trials and the public interest in the protection of informers, including EF's right to life; liberty and security; and her children's safety.

1. In my opinion, the appointment of counsel as Amici in the circumstances of this proceeding was the most appropriate means available to protect the interests of the seven named persons to a fair trial, while protecting the interests of EF. Taking into account the matters referred to in s 7(2)(a)-(e) of the Charter, I do not consider that there were any less restrictive means reasonably available to achieve the purposes of protecting EF's and her children's security.
2. As mentioned, counsel acting as Amici played an important role in the proceeding. The circumstances of this proceeding with the appointment of the Amici constituted a reasonable limit on the seven persons' right to a fair trial of these proceedings and was necessarily justified.

1. The Amici identified jurisdictional issues in this proceeding, particularly about the relief sought and the propriety of the Court declaring that the Director could not disclose information that he considered he had a public duty to disclose. Those issues are:
   1. Whether the Court has jurisdiction to determine the matters raised by the parties and to grant the relief sought by AB and EF in the first proceeding, and, if so:

(b) whether the plaintiffs are able to invoke the jurisdiction, and whether the Court should exercise that jurisdiction and grant the relief sought, in circumstances where:

(i) CD has determined to disclose the information to the named individuals;

(ii) there are no criminal proceedings on foot; and/or

(iii) neither the named individuals or any other affected persons are parties to the proceeding.

1. The Chief Commissioner and the Director accepted the Court had jurisdiction to make the declarations sought, although disagreeing about whether they should be made.
2. While the Amici accepted that the Court could determine claims of public interest immunity, they placed importance on the seven named persons' lack of knowledge of the proceedings, although they would be affected by the outcome. The granting of declaratory relief was always discretionary and exceptional when it concerns evidence or procedure.[54] They pointed out that the Chief Commissioner bore the onus of establishing the pre-conditions for the grant of the declarations.
3. The Amici also submitted that Victoria Police's failure to inform the Director of EF's role at the time that the seven named persons were prosecuted was a clear irregularity in their trials and gave them grounds to appeal their convictions.[55] That failure had denied the Director the opportunity to decide whether to disclose EF's role as an informer. The Director's opinion that he should send the disclosure letters was entitled to be given weight. The House of Lords in R v Chief Constable of the West Midlands Police, Ex parte Wiley distinguished between cases in which the appropriate government entity had determined that the public interest favoured disclosure, and those where the government entity had not considered that issue.[56] In the former case, the court would prevent disclosure only in the most exceptional circumstances.[57]
4. The Amici also contended that the Director's capacity to oppose the relief sought by the Chief Commissioner and EF was constrained, because his office had been the prosecutor in many of the prosecutions and he confronted the possible task of assessing arguments that the seven named persons might advance in any subsequent appeal or petition of mercy. He would be the respondent to and, possibly the opponent of, any such application.
5. The Amici further submitted that the law did not require the Chief Commissioner to seek the Court's ruling before disclosing information that might attract public interest immunity. The Director had considered the relevant issues, but had decided that the risk that the seven named persons' convictions were unsafe required disclosure of the information. The Court could not, or should not, prevent the disclosure that the Director considered appropriate in this proceeding to which the affected persons were not parties.

1. There is no doubt that the Court has jurisdiction to determine whether the proposed disclosures attracts public interest immunity. The Court has clear authority to determine whether a disclosure should be made which will affect the rights engaged in this proceeding. Where an informer opposes the release of information, the prosecutor should leave the issue of the applicability of public interest immunity for the Court to decide. This is the appropriate course whether there is a pending trial or whether the issue arises after the criminal proceeding has been completed.
2. Guidance comes from English decisions which establish that, if the prosecution determines that material is relevant, or possibly relevant, to the criminal trial, but considers that it should be withheld on public interest grounds, it must bring the issue before the court in which the criminal proceedings are being conducted.[58] In highly exceptional cases, this can be done on an ex parte basis.[59] The United Kingdom Court of Appeal in R v Ward stated:

If, in a wholly exceptional case, the prosecution are not prepared for the court to determine the issue of public interest immunity, the result must inevitably be that the prosecution will have to be abandoned.[60]

1. Subsequently, the Court of Appeal modified the position in R v Ward to recognise an ability, in 'highly exceptional' cases, to deal with public interest immunity claims by way of an ex parte application without giving notice to the defence.[61]
2. The principles relevant to the arguments advanced by the Amici were discussed in The Queen on the application of WV v Crown Prosecution Service ('WV v Crown Prosecution Service')[62] and support the conclusion that the Court has jurisdiction to decide the dispute about the Director's proposed disclosure and that it is appropriate that it do so. WV, an informer, sought to quash a decision of the Crown Prosecution Services (CPS) to disclose to the defence in a trial his identity as a person providing information to the police, without first applying to the trial judge for a ruling that information relating to WV's identity was protected by public interest immunity. Thomas LJ, now Chief Justice of England and Wales, with whose judgment Parker J agreed, stated:

In my judgement, the Crown Prosecutor should not have decided to make disclosure of the identity without referring the matter to the judge and the judge should not have taken the view he did that he should defer to the decision of the prosecutor. The disclosure of the identity of an informant without his consent is for the reasons I have given one of those cases where the Crown Prosecutor must apply to the court and the court must carefully consider the issues and reach its own decision taking account of the interests to which we have referred by reference to the facts and issues of the case before the court and balancing the interests and risks.[63]

1. Lord Thomas stated that there was no doubt that there was a real and substantial risk that if the identity of WV was disclosed, WV might well be killed. It was common ground that under Article 2 of the European Convention on Human Rights, a positive obligation rested on the state to take preventative operational measures to protect WV's life, as he was at the risk of the criminal acts of another individual.[64] Lord Thomas was satisfied that on the facts an implied undertaking of confidence in relation to WV's identity arose when he provided information to the police officer concerned.
2. His Lordship referred to the authorities on public interest immunity and considered that although some cases might suggest that the exception to the disclosure rule in the case of an informer was an automatic one, it was not, and that the court had to balance the competing interests. He referred to the statement of Lord Taylor CJ in R v Keane[65] that:

We prefer to say that the outcome in the instances given by Lord Esher MR and Mann LJ [in Marks v Beyfus and Ex Parte Osman] results from performing the balancing exercise, not from dispensing with it. If the disputed material may prove the defendant's innocence or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of disclosing it.[66]

1. Lord Thomas also accepted that the undertaking of confidentiality was subject to an exception if either the information or the identity of the informer would assist the court to ascertain facts, which were relevant to an issue upon which it was adjudicating.[67]
2. His Lordship set out considerations, some case specific and others of general application, relating to the disclosure of the identity of an informant, which are relevant to determining whether a duty of confidence exists and whether the prosecutor should seek the court's ruling on whether disclosure should occur. The relevant considerations are:

ii) When a prosecutor decides whether or not to continue with a prosecution, the prosecutor has to balance the public interest of the state in continuing with the prosecution, the interests of the victim of a crime (if any), and the duty to ensure a fair trial. There may be a conflict between those duties, but the Crown Prosecutor on behalf of the state in deciding whether or not to prosecute is, save in exceptional circumstances, the best person to make the decision on whether to proceed with the prosecution. His decision will be accorded a wide margin of discretion.

1. In the present kind of case, however, there is a further interest, namely the interest of WV who has his right to the confidentiality of his identity; in addition on the facts of this case, he has his Article 2 rights. There is, in my view, a potential conflict between the duty of the prosecutor who seeks to discharge the duty under s 3 of the CPIA and not to risk a conviction being set aside and the need to uphold the agreement that WV's identity would be kept confidential and the public interest in the flow of information from informers as well as WV's Article 2 rights.
2. The importance of informants to the prevention of crime has been a feature of our law for centuries. Where assurances are given to registered informants, to others or to the public in general (as is the case of a hotline) that their identity will be protected, those assurances should not be broken by the state without a judicial decision where the interests of the informant, the Crown, the defendant to a trial and the public interest can be carefully and impartially considered.
3. In my judgment it is of the highest importance to public confidence in the administration of justice, that where the interests of justice require that an express or implied undertaking of confidence as to the identity of an informant or other provider of information has to be broken, unless there is informed consent from the informant/provider, the decision to break it is a decision of a judge. Those who provide information in such circumstances have a right to that independent safeguard.

1. I therefore consider that the Court has jurisdiction to make the declarations and that the Chief Commissioner has acted appropriately in seeking the Court's ruling on this issue. I do not consider that there has to be a criminal proceeding on foot to consider the application for declarations. Nor does the absence of the seven named persons prevent the Court, in the unusual circumstances of this proceeding, from considering the application for declarations.

The duties and obligations of a lawyer to their client

1. It is appropriate and convenient to consider EF's duties and obligations as a barrister and lawyer to the seven named persons. The extent to which conversations between EF and the seven named persons were protected by legal professional privilege, or otherwise by duties of confidentiality was raised before and during EF's evidence. Serious ethical and related issues concerning EF's role as a lawyer were raised by her activities as an informer.

1. First are the obligations that flow from legal professional privilege. Section 118 of the Evidence Act 2008 provides:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of -

(a) a confidential communication made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person -

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.[68]

1. At common law, legal professional privilege is grounded in a public policy that recognises that communications between lawyer and client are critical to the functioning of the law:

The conflict between the principle that all relevant evidence should be disclosed and the principle that communications between lawyer and client should be confidential has been resolved in favour of the confidentiality of those communications. It has been determined that in this way the public interest is better served because the operation of the adversary system, upon which we depend for the attainment of justice in our society, would otherwise be impaired.[69]

1. Deane J said in Attorney-General (NT) v Maurice:

Its efficacy as a bulwark against tyranny and oppression depends upon the confidence of the community that it will in fact be enforced. That being so, it is not to be sacrificed even to promote the search for justice or truth in the individual case or matter and extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or to any tribunal or person with authority to require the giving of information or the production of documents or other materials.[70]

1. In R (Daly) v Secretary of State for the Home Department Lord Bingham stated that the surviving rights of a person in custody are as follows:

Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent necessary to meet the ends which justify the curtailment.[71]

1. In R v Robinson, Pill LJ delivering the judgment of the Court of Appeal and after quoting the statement of Lord Bingham said:

Those rights are enjoyed equally by a person under investigation for or charged with a criminal offence. The right is severely curtailed if the solicitor, or solicitor's clerk from whom he seeks legal advice, is telling the police what passes between them. It is not only a serious breach of duty by the solicitor, or clerk, to the client but, on the face of it, and if encouraged by the police, an infringement by the police of those rights. The police would be inducing or encouraging breaches of the right to legal professional privilege. The mischief may be on a considerable scale in the case of a solicitors' firm with a large criminal practice which inevitably has considerable contact with criminals, those associating with them and those accused of crime.[72]

1. The privilege belongs to the client, not the lawyer. Only the client may waive the privilege and in the absence of instructions from the client, the lawyer is bound by law to assert it.[73] The words 'legal advice' are to be construed broadly to include any advice as to 'what should prudently and sensibly be done in the relevant legal context'.[74] The subject communication must be for the 'dominant purpose', to be ascertained objectively, of providing legal advice. This requirement will mean at times that some parts of a conversation or document are privileged and others are not. In Kennedy v Wallace,[75] Allsop J stated:

A person can see a legal adviser and receive legal advice and commercial or other non-legal advice. The former will be privileged, the latter not. Difficulties of course can arise in demarcation. Difficulties can arise if the advice is intermingled. The resolution of the issue will generally be a question of fact.[76]

1. The privilege can be waived or lost. As the named persons had no opportunity to form a considered view of whether they wished to waive privilege with respect to particular communications with EF, the proceedings were conducted on the basis that privilege had not been waived.[77]
2. In particular circumstances, the privilege can be lost. One such circumstance is in cases of misconduct. The provision of a 'fraud exception' in the Evidence Act 2008 reiterates the common law principle that there can be no privilege in an iniquity.[78] Section 125(1) provides:

125 Loss of client legal privilege - misconduct

(1) This Division does not prevent the adducing of evidence of -

(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or

(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.

1. Applying the language of s 125, privilege never arises, if the communication is used in furtherance of the commission of an iniquity. Section 125 therefore applies in circumstances where the privileged communication conceals an iniquity, or is itself the wrongdoing.
2. For the purposes of these two proceedings however, the relevant alleged iniquities did not arise out of, nor were concealed by, the content of any particular legal advice given by EF. The iniquities relied on as relevant public interest considerations in the first proceeding and as a defence in the second proceeding were the conflicted role EF assumed by simultaneously being a lawyer for clients and an informer to Victoria Police; and the implications of her dual role for the propriety of the criminal justice process. I am unable on the evidence to find that any legal advice provided by EF to the named persons would necessarily not be privileged by application of the fraud exception nor need I make such a finding in either proceeding. The evidence did not provide the detail necessary to make such a finding and the evidence of the seven named persons was not before the Court.
3. Another circumstance where privilege will be lost is where there has been deliberate or inadvertent disclosure to a third party. Counsel for the Director relied on authorities deriving from the decision in Calcraft v Guest[79] that once privileged information is in the hands of a third party it is admissible evidence.[80] There is insufficient evidence however of the precise nature of each of the many communications between EF and her clients over the relevant years to determine whether the quality of privilege has been lost. Those questions of fact would require consideration on a case-by-case basis.

1. Ethical duties owed by a lawyer to their client are sourced in contract, equity, fiduciary law and the professional rules of conduct. Whereas the character of legal professional privilege may only attach to particular parts of a conversation or document, duties of loyalty and confidentiality survive beyond the contractual relationship joining lawyer and client.

1. The Victorian Bar Rules expressed EF's duty to her client in the following terms:

A Barrister must seek to advance and protect the client's interests to the best of the barrister's skill and diligence, uninfluenced by the barrister's personal view of the client or the client's activities, and notwithstanding any threatened unpopularity or criticism of the barrister or any other person, and always in accordance with the law including these Rules.

1. In Spincode Pty Ltd v Look Software Pty Ltd,[81] Brooking JA, described the duty of loyalty as not solely circumscribed by the four corners of the retainer:

Three possible sources of a relevant duty suggest themselves. The first is that there is an equitable obligation of "loyalty", which forbids not only the concurrent holding of two inconsistent engagements by different clients in the same matter but also the holding of two successive inconsistent engagements. To speak of two successive inconsistent engagements might be thought to beg the question whether equity imposes a bar; in the view of the House of Lords there is in this sense no inconsistency. By "inconsistent" I mean only that the solicitor who formerly acted for one client in the same matter now acts in that matter for a client with an interest adverse to that of the former client. In their Lordships' view, the duty of loyalty largely perishes along with the retainer from which it sprang, the only survivor being that aspect of the duty which protects confidential information. Once the retainer has gone "the solicitor has no obligation to defend and advance the interests of his former client". But what can be drawn from this last proposition? Once the contract of retainer comes to an end the solicitor does, it is true, cease to have active duties to perform for the former client. But why should we not say that "loyalty" imposes an abiding negative obligation not to act against the former client in the same matter? The wider view, and the one which commends itself to me as fair and just, is that the equitable obligation of "loyalty" is not observed by a solicitor who acts against a former client in the same matter. It is the asymmetry of knowledge, power and influence between lawyer and client that gives rise to the lawyer's duty to protect their client's interest.[82]

1. Brooking JA's view is consistent with and supported by the authoritative opinions on fiduciary obligations that are a source of the duty of loyalty. A lawyer, upon working for a client, because of the nature of the work that is entailed, cannot escape being a fiduciary. That is because a fiduciary:

is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty.[83]

1. The duty to be loyal to one's client, in so far as it is expressed as a fiduciary obligation under Australian law, is a proscriptive duty 'said to oblige a fiduciary to act in the interests of the other party... to the exclusion of his or her own interests'.[84]
2. As the duty's content is shaped by the relationship it forms within, it can only be amenable to the most general of descriptions. This definitional issue is referred to by Justice Finn in his book Fiduciary Obligations as follows:

He is, simply, someone who undertakes to act for or on behalf of another in some particular matter or matters. That undertaking may be of a general character. It may be specific and limited. It is immaterial that the undertaking is gratuitous. And the undertaking may be officiously assumed without request... It applies not because a person is a trustee or an agent, but because he has undertaken to act for or on behalf of another.[85]

1. EF, at all times when she acted as lawyer for Peters, (Tony) Mokbel, Ahec, Bednarski and Khoder; owed to those persons a duty of loyalty that extended beyond the bounds of her retainer. It is not sufficient to point to there being no actual conflict between her duty and interests as an answer to that breach. Her loyalty was demanded by her role, that is, by virtue of her identity as a professional.
2. EF agreed with the proposition, cited from a police summary, that she had 'a strong desire to be free of the clients that tend to consume a large proportion of [her] time and resources and thus create a great deal of stress to [her]. [She] states that her sole motivation for acting as a source is to be rid of the clients in this category, specifically being those who belong to the Mokbel criminal cartel'.[86] That motivation gave rise to multiple interests incompatible with her duty of loyalty. The predicament of crossed-loyalties was further complicated by the interests of her handlers as exercised by and through EF.
3. EF gave the following evidence about her rationale for giving police information:

Counsel: And so in the paragraph ...where you say 'and the things that [Milad Mokbel' doesn't know I have been involved in, I can't have a conflict then', what you are saying here is that as long as he doesn't know that you were involved in something, then you don't have a conflict?

EF: Well, the conflict I'm talking about in this paragraph is about the George Peters conflict, because Milad only, or my assumption is that for the Operation Posse matter, which is the brief we're reviewing on the day, the evidence against Milad arises from telephone intercept material and the recording that George makes when he arranges to deliver a couple of kilos of pretend meth - substitute methamphetamine to Milad and records him doing it. So I'm talking about - my conflict that I'm talking about there is because I had acted for George and the issue would be then not being able to act for Milad. And my reference to the things he doesn't know I've been involved in is me being an informer; although not specific to him because I can't tell you whether what all of the stuff I told police - how much of it was used specifically - you know, maybe, for example, to get an intercept on Milad's telephone, things like that.

Counsel: But aren't you saying there, as long as he doesn't know that you're involved in something, then you don't have a conflict?

EF: Yes, in the same way that informers that are being used now, unless, it's like [*Redacted], says at the beginning of that other transcript, you can't, you can't subpoena something that you don't know exists, and if, on the basis of informers, are completely - sorry, informers that are providing intelligence as opposed to becoming a witness, being used as a witness or setting up an accused, um, that, that is information that will never see the light of day.

Counsel: So isn't that similar to saying it's not dishonest if I don't get caught?

1. Whereas duties of loyalty are most aptly described in the language of fiduciary obligation; duties of confidentiality are 'sourced from an amalgam of contract law and equity stemming from the peculiar relationship of lawyer and client'.[88] Trust and confidence in the lawyer are however closely intertwined. The Victorian Bar Rules included this statement of principle:

A Barrister's obligation to maintain the confidentiality of a client's affairs is not limited to information which might be protected by legal professional privilege, and is a duty inherent in the fiduciary relationship between barrister and client.[89]

A barrister must not disclose (except as compelled by law) or use in any way whether during or after the cessation of the relationship of barrister and client, confidential information obtained by the barrister concerning any persons' business or personal affairs unless or until:

The information has been published so as to become public knowledge;

The information is later obtained by the barrister from another person who is not bound by the confidentiality owed by the barrister to the first person and who does not give the information confidentially to the barrister;

The person has consented to the barrister disclosing or using the information generally or on specific terms.[90]

A barrister must refuse to accept or retain a brief or instructions to appear before a court:

(a) If the barrister has information which is confidential to any other party in the case other than the prospective client, and:

(i) The information may, as a real possibility, be material to the prospective client's case; and

(ii) The party entitled to the confidentiality has not consented to the barrister using the information as the barrister thinks fit in the case

1. Rule 92 sets out a number of situations that make it untenable for a barrister to accept a brief, including in circumstances:

(q) where to do so would compromise the barrister's independence, involve the barrister in conflict of interest, or otherwise be detrimental to the administration of justice.

1. In limited circumstances, a barrister may be entitled by law to breach the client's confidence. EF relied on the general principle that there could be no confidence in an iniquity and justified her informing as so critical to the prevention of serious crimes as to warrant disclosure.[91] The terms of the Bar Rules include such an exception, replicating in part the common law exception:

A barrister whose client threatens the safety of any person may, notwithstanding [their duty of confidence], if the barrister believes on reasonable grounds that there is a risk to any person's safety, advise the police or other appropriate authorities.

1. The exception reflects the particularly Australian common law exception to exception to an equitable duty of confidence as stated in the decision of Corrs Pavey Whiting & Byrne v Collector of Customs (Vic):[92]

Any principle of the kind I am now considering will be applied in equity where there is no reliance on contractual confidence. That principle, in my view, is no wider than one that information will lack the necessary attribute of confidence if the subject matter is the existence or real likelihood of the existence of an iniquity in the sense of a crime, civil wrong or serious misdeed of public importance, and the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in redressing such crime, wrong or misdeed.[93]

1. EF's explanation for disclosing information to her handlers appeared to overlook the real nature of the relationship between them, as she described it in her own words, a relationship where she was expected to tell them everything:

Counsel: And you were conscious that you were an informer at that time after September '05?

EF: Yes, because quite often I would be at the - the information that I gave to police, more often than not I came across because they would encourage me to go and have dinner with 15 criminals, it was the Mokbel group or - and associates, because they would have all of their runners there. Quite often their mistresses would be invited as well, and they would talk very openly, but when I say "very openly," they would talk amongst them - between themselves, but openly in a place that they believed wasn't subject to electronic surveillance by police. And I would carry on a conversation with one person, but would be listening to two or three other conversations and it was in that context that I then provided information to the police, not knowing specifically the value of it or how it would be used, and as it turns out, sometimes it was of immense assistance to them. So you felt that you had to...

Counsel: ...once you became aware of the information, you felt compelled to hand it over to the police because you were a registered informer?

EF: Well, not only that, it was [*Redacted] instruction, which was to - along - almost his words were, "You tell us what you hear and let us work out what we do with it".[94]

1. Neither the legal authorities that describe the equitable duties of confidentiality nor Bar Rules cited above contemplate the type of predicament EF found herself in. Duties of loyalty and confidentiality are composite parts of the identity of a legal professional. The Court's role in regulating the profession in this respect goes beyond the mere application of the professional rules. In Clyne v New South Wales Bar Association, the High Court remarked on the standard imposed on the profession referrable to common standards of decency and fairness:

The rules which govern the conduct of members of a body of professional men, such as the Bar of New South Wales, may (though there is, of course, no logical dichotomy) be divided roughly into two classes. In the one class stand those rules which are mainly conventional in character. To say this is not to deny their importance from the point of view of the client. But they are designed primarily to regulate the conduct of members of the profession in their relations with one another. Many of these rules are reduced to writing, and they are from time to time interpreted, and perhaps modified to fit specific cases, by resolutions of the governing body of the profession. Examples of this class in the case of the Bar are

the rule which forbids advertising, the rules with regard to retainers, the rule that one of Her Majesty's counsel must not appear without a junior. A breach of any of these rules is treated seriously, but would not warrant disbarment - at least unless it were shown to be part of a deliberate and persistent system of conduct.

Rules of the other class are not merely conventional in character. They are fundamental. They are, for the most part, not to be found in writing. It is not necessary that they should be reduced to writing, because they rest essentially on nothing more and nothing less than a generally accepted standard of common decency and common fairness.[95]

1. If a lawyer's conduct offends the generally accepted standards of common decency and common fairness, notwithstanding the precise form of any regulation, the Supreme Court's inherent jurisdiction can be invoked to take appropriate measures to ensure that the integrity of the justice system will be protected. Arguably that jurisdiction may assist the seven named persons challenge their convictions.

The principle governing the application of public interest immunity to the protection of police informers' identities

1. An important issue was the identification of the principle that determines whether public interest immunity applies to information. Does the law, as the Chief Commissioner contends prohibit the identification of an informer subject to an exception where to do so might provide substantial assistance to a defendant in or in connection with a criminal proceeding, including in this case, in challenging convictions after the proceedings have been completed? Or must the Court, as the Director and the Amici contended, balance a range of public interests? EF submitted that no balancing of public interests was permitted when the protection of the identity of an informer was involved.
2. Authorities such as Sankey v Whitlam[96] and Alister v R[97] establish that an authority may rely on public interest immunity to object to the production of documents when the disclosure of their contents is against the public interest. The parties paid particular attention to the following statement of Brooking J in Jarvie v Magistrates' Court (Vic) concerning disclosure of the identity of an informer:

The fact that there was good reason to think that disclosure of the informer's identity might be of some slight assistance to the defence was not sufficient to outweigh the public interest in non-disclosure. But once it was demonstrated that there was good reason to think that non-disclosure might result in substantial prejudice to the accused, the balance was shown to incline in the accused's favour and disclosure should be directed.[98]

The balancing process accepts the justice, even criminal justice, is not perfect, or even as perfect as human rules can make it.[99]

1. The decision in Jarvie v Magistrates' Court (Victoria)[100] was applied by the New South Court of Criminal Appeal in Meissner v R.[101]
2. The Chief Commissioner submitted that no balancing of public interests was required and that the risks to EF's safety from the Director's proposed disclosures and the need to encourage persons to act as informers were decisive. EF made similar submissions.
3. The Director, on the other hand, submitted that balancing of public interest was required. He also submitted that even if non-disclosure would not result in substantial prejudice to the seven named persons, the Court needed to consider separately the following matters:

(a) the likelihood and degree of risk to the personal safety of EF, taking into account the measures that were available to protect her;

(b) the likelihood and degree of inhibition of future information being disclosed to the police;

(c) that EF had engaged in serious misconduct which has the potential to affect hundreds of individuals and seriously damage public confidence in legal professional privilege and the administration of justice more generally; and

(d) that disclosure of EF's activities would serve the public interest in the administration of justice by:

(i) allowing the investigation, by proper process, of possible misconduct by Victoria Police, and the possible consequences of that misconduct, by making it possible to gather evidence about the matters in relation to which EF acted for particular individuals, and the advice that she gave those individuals;

(ii) ensuring public confidence in the rule of law and the administration of justice, which was reliant on public confidence in legal professional privilege; and

(iii) allowing public discussion of the legitimacy of the tactic of using a lawyer as a police informer.

1. The Amici submitted that there was no single formulation of the test to determine whether an informer's identity could be disclosed. Brooking J did not intend that disclosure of the informer's identity was warranted only if doing so would demonstrate clearly that the accused was not guilty.[102] His Honour referred to both 'some real assistance' to the accused and 'substantial assistance' to the accused as occasions on which the informer's identity might be revealed.
2. The parties referred to the decision of the New South Wales Court of Criminal Appeal decision in Derbas v R[103] which concerned whether an accused's application that the Crown produce a document should be refused because it would disclose the identity of a police informer.[104] Meagher JA, with whose judgment the other members of the Court agreed, referred to the decision in Cain v Glass (No 2)[105] in which McHugh JA, with whom Kirby P agreed on this question, stated that:

'... the courts in this State should continue to apply the rule that no question of weighing competing public interests arises when a claim is made that the name of a police informer should be disclosed. The rule is absolute and is relaxed only "where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence".[106]

1. Priestley JA said that the court was required to undertake a balancing exercise of competing interests.[107]
2. Meagher JA considered that it was not necessary in Derbas' case to resolve these different views, because on either approach the trial judge had erred in his decision. His Honour stated:

It was not sufficient for the primary judge to consider, as he did, whether the information obtained in confidential [32] was relevant in the sense that it supported the defences outlined on behalf of the Accused. Ultimately, it was necessary to assess the significance of the identity of the informer and the other information in confidential [32] to the Accused's ability to pursue those defences in the proceeding. The primary judge erred in not doing so.

The primary judge also erred in taking into account his assessment of the likely consequences of the disclosure of the informant's identity... For the reasons given above, that matter was not relevant to whether the exception applied or to any balancing exercise.[108]

1. The test that Jarvie[109] and Derbas[110] consider does not require that the substantial assistance that the disclosure of the informer's identity may provide would establish that the accused was innocent. In Wilde v The Queen, Brennan, Dawson and Toohey JJ speaking of the proviso that can entitle an appeal court to dismiss an appeal if there has been no substantial miscarriage of justice against conviction, even when grounds of appeal are established, considered circumstances in which it can be said that an accused has not had a proper trial, stating:

The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so fundamental that by their very nature they exclude the application of the proviso (authorities omitted).

There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted...[111]

The fundamental prescript of the administration of criminal justice in this country is that no person should be convicted of a serious crime except by the verdict of a jury after a fair trial according to law.[112]

Conclusion on the principle governing the application of public interest immunity to the protection of police informers' identities

1. I consider that I should follow the opinion expressed in Jarvie[113], and decide the question of whether public interest immunity prevents the Director's proposed disclosures by a balancing process of relevant public interests.

The legal principles available to the seven persons to challenge their convictions

1. Before proceeding to identify the relevant public interests, I will consider what legal principles might be open to the seven named persons to challenge their convictions assuming that the Director's proposed disclosures might provide them with substantial assistance to do so. Those principles depend in part on the extent of EF's departures from her duties and responsibilities as a barrister, the nature of which I have discussed above.
2. The Chief Commissioner advanced four legal propositions that the seven named persons might rely on to quash their convictions. The first was that justice has not manifestly and undoubtedly been seen to be done. He submitted that it was not clear from the cases whether a convicted person had to establish not only a perceived conflict of interest by a lawyer, but that he or she suffered actual prejudice as a result.
3. Secondly, the seven named persons could argue that there was a fundamental departure from the concept of a criminal trial as understood in Australia's criminal justice system. For instance in Lee v The Queen ('Lee')[114] the High Court stated that the New South Wales Court of Appeal had erred by requiring that 'practical unfairness' resulted from conduct whereby the prosecution had been given access to transcripts of a compulsory examination of the accused. But the access was not authorised by the compulsory examination legislation. The High Court stated:

These appeals do not fall to be decided by reference to whether there can be shown to be some 'practical unfairness' in the conduct of the appellants' defence affecting the result of the trial. This is a case concerning the very nature of a criminal trial and its requirements in our system are criminal justice. The appellants' trial was altered in a fundamental respect by the prosecution having the appellants' evidence before the Commission in its possession.[115]

1. Another example of the reasoning applied in Lee and, on which the Director and the Amici relied, is the Queensland Court of Appeal decision in R v Szabo[116] where the prosecutor and the defence counsel had been in a close personal relationship which defence counsel did not disclose to the accused. That not having been done, an ordinary fair-minded citizen in the position of the accused, with knowledge of all relevant circumstances, would entertain a reasonable suspicion that justice had miscarried, notwithstanding that the accused's representation was seemingly competent. Convictions were set aside and a new trial ordered. De Jersey CJ, stated:

This is not a case of actual injustice. The Crown case was strong, the defence was robust and the trial was regularly conducted. Further, there is no suggestion of any actual, improper disclosure of material by defence counsel to the prosecutor.

But that is not the end of the matter. In a different context (this is not a case of misunderstanding between bar and bench, but one which usefully points up the role of counsel), Sankey L.J. said in Hobbs v. Tinling & Company Limited [1929] 2 K.B. 1, 48:

"The Bar is just as important as the Bench in the administration of justice, and misunderstandings between the Bar and the Bench are regrettable, for they prevent the attainment of that which all of us desire - namely, that justice should not only be done, but should appear to have been done."

Litigants see members of the bar conducting themselves as officers of the Court, owing a special duty to the Court. Just as the Court expects fearlessly independent presentation by counsel, so the client expects that subject to counsel's supervening duty to the Court, counsel will with fearless independence promote the client's cause.

The circumstances of this case would engender reasonable suspicion or apprehension in a fair-minded, informed observer as to whether defence counsel necessarily acted with that fearless independence.[117]

The appeal is not allowed on any perception that an innocent man has been convicted, but on the ground that it may be perceived that he did not have a fair trial according to the process by which criminal trials are conducted. To uphold the conviction would send the wrong message to professional persons trusted with the vital role on the administration of criminal justice and would in the end lower public confidence and the integrity of the system.[118]

1. The Director also relied on this second proposition of a fundamental departure from the concept of a criminal trial and submitted that, because of EF's dual roles, a fundamental alteration of the accusatorial process may have occurred in the prosecution of the named persons. The accusatorial system of justice relies on the lawyer for an accused person endeavouring to advance his or her interests. Miscarriages of justice will have occurred if EF's conduct in informing on clients, once disclosed, results in a perception that the seven named persons have not had a fair trial.
2. The Chief Commissioner's third proposition was that the seven named persons might contend that an abuse of process had occurred because executive misconduct, which includes police misconduct would, if disclosed, undermine public confidence in the criminal justice system and bring it into disrepute.[119] Possible police misconduct in the prosecutions of the seven named persons arose from police obtaining access to privileged information from their barrister, EF. That conduct was not disclosed to the seven named persons and they did not have the opportunity to seek the exclusion of evidence that derived from EF's misconduct.
3. The Chief Commissioner submitted that a prosecution may be stayed, or a conviction quashed on appeal, in the exercise of the court's discretion where executive misconduct has occurred that would undermine public confidence in the criminal justice system.[120] The deliberate invasion of a suspected person's right to legal privilege is a 'serious affront to the integrity of the justice system', which operates in favour of the stay or quashing, but is not determinative. Where the misconduct had no influence on the proceeding, the court may allow the trial to proceed or the conviction to stand. The degree to which the impropriety affected the trial is critical in the court deciding whether to stay a proceeding or quash a conviction.
4. By way of example, in Moti v The Queen,[121] the High Court held that the further prosecution of criminal charges against the appellant should be stayed as an abuse of process because Australian officials had facilitated his deportation knowing that it was unlawful under Solomon Islands law. The Court discussed what was involved in a court functioning as a court of law, and the plurality stated:

The third basic proposition is that, as pointed out in the joint reasons of four members of this Court in Williams, two fundamental policy considerations affect abuse of process in criminal proceedings. First, 'the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike'. Secondly, 'unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice'. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts' processes in a way that is inconsistent with those fundamental requirements.[122]

1. In Wilson v The Queen[123], a decision of the New Zealand Supreme Court considered a case where a police undercover operation involving the use of a bogus search warrant and the bogus prosecution of an undercover officer had gathered evidence against an accused. The Court quashed the appellant's convictions. The plurality stated:

In relation to criminal proceedings, a stay may be granted where there is state misconduct that will:

(a) prejudice the fairness of a defendant's trial ('the first category'); or

(b) undermine public confidence in the integrity of the judicial process if a trial is permitted to proceed ('the second category').

It follows that the analysis is not backward-looking, in the sense of focussing on the misconduct, but rather forward-looking, in that it relates to the impact of the misconduct on either the fairness of the proposed criminal trial or the integrity of the justice process if the trial proceeds.[124]

1. The following decisions are useful examples of the application of the principle of abuse of process to instances of the non-disclosure of relevant information by police or prosecutorial misconduct, when relied on to challenge convictions. They indicate that the extent of the prejudice caused by the conduct relied on can be a relevant factor.
2. The first is the recent decision of the New South Wales Court of Criminal Appeal in JB v R (No 2)[125] in which a youth had been convicted of murder by stabbing. A central plank of the prosecution case was the youth's confession to a support person, whom the police called to the police station where the youth was detained. The police did not disclose that the support person was a registered informer and that he was facing fraud charges. Later, he received a suspended gaol sentence after police provided an affidavit of assistance which referred to his assistance in the murder case. In addition, the accused's solicitor was also the support person's solicitor and therefore had a conflict of interest. The youth's appeal against his conviction was dismissed. Thereafter, he became aware of the double role played by the support person and the solicitor. The matter was referred to the Court of Criminal Appeal to be dealt with as an appeal. The Court first determined the accused's application for production of police records showing the assistance of the informer in other matters, but rejected that request.[126] But, the Court ruled that that the accused should have access to police records that showed the assistance provided by the informer in respect of the investigation of the murder. Thereafter, the Court ruled that the conviction for murder should be quashed and a verdict of acquittal entered.[127]
3. In the English case of R v Grant[128] the defendant, who was in custody, contended that the police had deliberately eavesdropped upon, and tape recorded, his privileged conversations with his solicitor. The intercepts did not yield any material which would have assisted the Crown to undermine the defence case. The trial judge held that there was no evidence that the accused's right to legal professional privilege had been deliberately disregarded. He was convicted, but he successfully appealed. The Court of Appeal held that although not every misdemeanour by police officers in the course of an investigation will justify a stay on the grounds of abuse of process, and although there were cases where prejudice or detriment to the defendant had to be shown, the court would not tolerate or endorse illegal conduct by police or state prosecutors which threaten or undermine the integrity of the justice system and the rule of law and therefore would not countenance any associated prosecution. The court concluded that the deliberate interference with the detained suspect's right to the confidence of privileged communication with his solicitor seriously undermined the rule of law and justified a stay of grounds on the abuse of process, notwithstanding the absence of prejudice to the defendant. Accordingly, the conviction was unsafe and it would be quashed. Laws LJ delivering the judgment of the Court stated:

...we are in no doubt but that in general unlawful acts of the kind done in this case, amounting to a deliberate violation of a suspected person's right to legal professional privilege, are so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court.[129]

1. R v Grant has not been followed by subsequent authority. In the Privy Council decision in Warren v Attorney-General for Jersey[130] Lord Dyson accepted that the deliberate invasion of legal profession privilege, which involved unlawful surveillance operations in foreign jurisdictions, was a 'serious affront to the integrity of the justice system which may often lead to the conclusion that the proceedings should be stayed'. However, the particular circumstances must be considered, including the gravity of the crime and whether the misconduct caused prejudice to the accused. The Privy Council dismissed the accused's appeal concluding that although there had been grave prosecutorial misconduct, the cumulative effect of the fact that the defendants were charged with a serious offence**,** and that their ring leader was a professional drug dealer with a long record of offending outweighed the misconduct.
2. The Privy Council considered that the decision in R v Grant was incorrectly decided, because the Court had wrongly interfered with the exercise of the trial judge's discretion not to stay the prosecution. Lord Dyson stated:

The Board agrees that the deliberate invasion by the police of the suspect's right to legal profession privilege is a serious affront to the integrity of the justice system which may often lead to the conclusion that the proceedings should be stayed. But the particular circumstances of each case must be considered and carefully weighed in the balance. It was obviously right to hold on the facts in R v Grant that the gravity of the misconduct was a factor which militated in favour of a stay. But as against that, the accused was charged with a most serious crime and, crucially, the misconduct caused no prejudice to the accused. This was not even a case where the 'but for' factor had a part to play. The misconduct had no influence on the proceedings at all. In those circumstances, surely the trial judge was entitled to decide in the exercise of his discretion to refuse a stay and the Court of Appeal should not have held that his decision was wrong.[131]

But it is difficult to avoid the conclusion that in R v Grant the proceedings were stayed in order to express the court's disapproval of the police misconduct and to discipline the police.[132]

1. The Chief Commissioner's fourth proposition was the possibility that there had been a failure by the prosecution to disclose relevant information. However, he did not challenge the Director's conclusion that he had had no actual or constructive knowledge of EF's role prior to the receipt of the Kellam Report.
2. The Director made extensive submissions about the matters that the seven named persons might rely on to challenge their convictions on grounds of miscarriage of justice as provided for in s 276 of the Criminal Procedure Act 2009. That section provides that an appeal against conviction must be allowed if:

(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or

(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or

(c) for any other reason there has been a substantial miscarriage of justice.

1. The Director submitted that it was not possible to identify a rule that might enable determination of whether EF's activities required particular convictions to be quashed because of the numerous ways in which the conduct of Victoria Police and EF might have caused a miscarriage of justice. The Director identified six discrete bases for a conviction to be quashed, some of which overlapped with issues identified by the Chief Commissioner. They also overlap with matters that are considered in the next section of this judgment, in which the public interests to be balanced are identified. First, EF may have been actuated by ulterior motives when acting for clients. The conduct of a lawyer for an accused person may cause a miscarriage of justice, for instance a lawyer's conduct may improperly produce a plea of guilty. Secondly, there might be a perception that EF was actuated by ulterior motives and that therefore there was a perception that justice had not been done. This would require a conclusion that, if apprised of relevant facts, the court would have restrained EF from acting for the seven named persons. EF had acted concurrently as an informer against, and lawyer for, the same persons, and thus it was said had breached both her duties of loyalty and confidence. Thirdly, was the possibility that Victoria Police and EF had acted in a way that resulted in a fundamental shift in the accusatorial nature of the criminal proceedings. This is associated with the principle in Lee's case[133] which I have described previously. Fourthly, criminal proceedings are likely to be permanently stayed as an abuse of process if police deliberately and improperly obtained privileged information from the accused. Fifthly, was that any improper conduct in securing an extradition may result in the criminal proceedings that follow that extradition being considered an abuse of process, and in a permanent stay of the proceedings. This was the issue in Moti v The Queen.[134] Sixthly, the failure of the Crown to disclose relevant information. It might be that the Crown was required to reveal that EF was an informer.
2. The Director submitted that where proceedings constituted an abuse of process as a result of police misconduct, the success of an appeal against conviction was unlikely to be impeded by the accused's plea of guilty. The power to stay proceedings as an abuse of process was not disciplinary in character and was not to be used to punish, or to mark the court's disapproval of, police misconduct. A balance has to be struck between the public interest in ensuring that those accused of serious crime were prosecuted and the competing public interest in ensuring that the misconduct did not undermine public confidence in the criminal justice system and bring it into disrepute.
3. EF submitted that the potential basis of any submission that there was any miscarriage of justice in the cases of the seven named persons had not been clearly identified. The authorities did not establish in the case of the persons who had pleaded guilty that the fact that evidence was improperly obtained or that EF was both the solicitor and an informer in unrelated cases would establish miscarriages of justice. The persons would have to establish that there was a question as to the innocence of the accused, or that there was a basis to believe that the plea of guilty was not attributable to a consciousness of guilt.[135]
4. The Amici made extensive submissions about the impact of EF's conduct on the proper administration of justice.

Conclusion concerning the legal principles available to the seven persons to challenge their convictions

1. The parties' and Amici's submissions which I have summarised demonstrate that the seven named persons may have a number of grounds on which to contend that their convictions involved a substantial miscarriage of justice. The possible grounds include that because of the conduct of Victoria Police and EF, they did not receive a trial as required by the criminal justice system and that the trials involved an abuse of process, because their legal counsel did not provide independent advice. The requirements of a fair trial include that counsel will provide independent advice to a client and will not have separate obligations to the police who have brought the prosecution.
2. In Nudd v The Queen, Gleeson CJ when considering whether trial counsel's alleged incompetence amounted to a miscarriage of justice, that 'the concepts of justice, and miscarriage of justice, bear two aspects: outcome and process. They are different, but related'.[136] In the same case, Kirby J elaborated on the importance placed by the Courts on adherence to procedure stated:

as a matter of principle, neither the criminal appeal legislation nor the law generally confine attention solely to pragmatic consequences. The law is concerned with principles and with the appearance of justice in the conduct of trials. This concern derives from the long experience of the law that substantive justice is heavily dependent upon (and often flows from) observance of proper procedures and the conduct of hearings untainted by relevant unfairness.[137]

1. The public interest in fair trials, in appearance and in fact, is relevant to the primary issue in this proceeding. The Court must protect that public interest. Maintaining the rule of law and public confidence in the rule of law requires that courts and agencies of the state and members of the legal profession associated with criminal proceedings ensure that criminal trial procedures are preserved and respected.

The public interests to be balanced in order to decide whether the Director's proposed disclosures are subject to public interest immunity

1. I will next consider the public interests that should be balanced.
2. The Chief Commissioner submitted that the only matters for the Court to balance in deciding whether to permit the Director's proposed disclosure were the protection of EF and the 'chilling' effect of disclosure on police informers and potential police informers on the one hand and the possible assistance that her identification as an informer might provide the seven named persons in remedying any miscarriage of justice involved in their convictions. The Chief Commissioner submitted that the public interest in not disclosing EF's role as a police informer was to be given the highest weight. EF faces an almost certain risk of being killed and her infant children faced significant risks of physical and psychological harm, if disclosure occurs. If any such harm occurs, the resulting media coverage would have a 'chilling' or 'drying up' effect on informers and their willingness to provide information to Victoria Police. That outcome would harm the administration of justice.
3. The Chief Commissioner accepted that the authorities suggested that the State bore a duty of care to EF, because of the assurances that Victoria Police acting on behalf of the State gave her and her reliance on them. The Director's proposed disclosures would have one arm of the State triggering the risk of EF's almost-certain death, a risk which both the State and EF recognized when Victoria Police, another arm of the State, persuaded her to become an informer, while assuring her that she would not suffer harm. There was a public interest in maintaining the State's assurances of confidentiality to EF.
4. The Chief Commissioner submitted that the context in which Victoria Police recruited EF as an informer in September 2005 could be described in the following terms:

She reached out for help from Victoria Police. From her first meeting with Victoria Police on 16 September 2005, officers of Victoria Police assured her that:

(a) her relationship with Victoria Police would remain confidential;

(b) she would never be revealed as an informer, or called as a witness;

(c) anything she said to Victoria Police would remain confidential and would be disseminated in such a way that she would not be identified as a source;

(d) nothing she discussed with Victoria Police would ever be made public;

(e) the fact that material or information would be disseminated in such a way that no-one in the middle would ever be able to identify where it came from; and

(f) no-one would ever find out about her role as an informer.[138]

1. As previously mentioned, the Chief Commissioner submitted that EF's safety was the most important public interest for the Court to consider in deciding whether public interest immunity applied to the Director's proposed disclosure. He relied on Lord Diplock's analysis of the applicable public interest in D v National Society for the Prevention of Cruelty to Children:

The private promise of confidentiality must yield to the general public interest that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant, a more important public interest is served by protecting information or the identity of the informant from disclosure in a court of law.[139]

1. To similar effect is Lord Justice Pill's statement in An Informer v A Chief Constable that:

Unlike Rush's case, this is not a case where a private interest is set directly against a public interest. There are potentially conflicting public interests. That does not mean that a private duty cannot exist; it does mean that its existence and scope must be considered in the context of the potentially conflicting public interests. The Hill principle, as construed, does not preclude the existence of a duty to a private person.

There is a public interest operating in parallel with the private interest of C. Of course there is a public interest in police investigation of crime not being impeded by the possibility of claims being brought by suspects, but that has to be considered in relation to the public interest in employing the services of [human sources].[140]

1. The Chief Commissioner also relied on the State's positive duty to protect life, a duty which Brennan J described in the following terms:

In the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man's liberty, and the balance must tilt that way.[141]

1. On the other hand, the Director named a number of public interests that were to be balanced against the possible harm to EF from his proposed disclosures. These included the many or multiplicity of cases in which EF had provided information to Victoria Police. Then there was that disclosure of EF's activities would serve the public interest in the administration of justice by allowing the investigation by proper process of possible misconduct by EF and Victoria Police and the possible consequences of that misconduct. The Director's proposed disclosures would reveal that the police informer was a lawyer and was deployed by Victoria Police to inform against her clients. She was therefore arguably a lawyer engaged in serious misconduct. If substantiated, the possible misconduct could give rise to charges of attempting or conspiring to pervert the course of justice or contempt of court. The investigations already conducted into EF and the Police's conduct did not detract from the importance of this consideration. Another important public interest was the need to maintain public confidence in legal professional privilege. The non-disclosure of the information that the Director proposes to disclose would inhibit the investigation, by proper process, of possible misconduct by Victoria Police and EF and the commencement of possible criminal proceedings. It would inhibit public discussion of the legitimacy of the tactic of using a lawyer as a police informer, and damaging public confidence in legal professional privilege. It would affect the administration of justice.
2. In her opening, senior counsel for the Director identified a number of public interests that supported his proposed disclosures. They were that the public interest in the administration of justice would be impaired or frustrated if the disclosures were not made. There was also a public interest if the disclosure of the identity of the informers could help to show that the defendant was innocent of the offence and in ensuring that an accused had every opportunity to defend himself and that each person's liberty was protected. There was a public interest in the proposed disclosures if they would provide substantial assistance to an accused. There was a public interest in a fair trial being held. Then there were the public interests in the correction of miscarriages of justice and in preserving the integrity of the criminal justice system.
3. The Amici referred to the impact of EF's and the Polices' conduct upon the proper administration of justice and the right of the accused persons to fair trials. The Amici submitted that the Director should be permitted to make the proposed disclosures because EF, a lawyer, and an officer of the Court, had breached her duty of loyalty to her clients and her obligation to maintain legal professional privilege, and thereby affected the administration of justice. They also pointed out that EF and Victoria Police, the very persons who had engaged in misconduct, were now seeking to rely on public interest immunity to conceal that misconduct.

Consideration of the evidence relating to particular public interests

1. Much of the evidence in the proceeding concerned particular public interests which were the public interest in protecting EF from harm and the public interest in maintaining the informer system. To consider that evidence adequately, it is necessary to describe it and the applicable submissions in some detail.

1. EF contended that once disclosed, the contents of the Director's proposed letters would become known in criminal circles and be leaked to the media and their details would be published. As a result, she would be killed, either at the initiative of a recipient of a letter, or of another criminal.[142] She is extremely afraid for the safety of her two young children.
2. The Director's letters would officially confirm her role as a police informer, which while previously the subject of significant speculation, had not been officially confirmed. EF said of prominent criminals:

So they might see a Herald Sun article. They've got an idea in their head. They three-quarters believe it, but they still want, as they did when I was acting for the, a piece of paper that confirms it. Often what they wanted was a police diary entry, a daybook entry, an informer's registration page from Victoria Police's records. Their expression was, 'Show us the - show me the paper work.'[143]

1. Support for this evidence is found in the Director's 'Report of the [DPP] in relation to Recommendation 12 of the Kellam Report' where the Director stated:

I have no doubt that official confirmatory statements, and evidence, of the kind that exist in the Kellam Report, and in my review, could lend powerful weight to a decision to take prejudicial action against the source.[144]

1. EF also relied on the risks to her safety as assessed by Inspector Brooke Hall, an officer of Victoria Police of 30 years' service. His assessment in April 2016 was that EF faced the likely risk of her murder. However, at that time, that risk was somewhat moderated by EF's strategy of practising plausible denial and continuing her relationships with underworld figures to allay suspicion about her role in assisting police.
2. Inspector Hall considered that once the Director disclosed to the seven named persons that EF had been a police informer while acting as their legal representative, she faced an extreme risk and would almost certainly be murdered. By 'almost certain' was meant:

The threats will almost certainly harm the witness due to the witness's activity. The witness is NOT compliant with ANY police instructions or witness protection treatments - will almost certainly breach police instructions or witness protection treatments. Effectiveness of police instructions or witness protection treatments will almost certainly be compromised.[145]

1. Inspector Hall's risk assessment contained the following information and conclusions:

Threats will remain high however, underworld criminal identities unsure if [EF] is actually a human source due to constant denials.

Disclosure of [EF] as a human source by OPP would remove this protection and elevate the likelihood to almost certain and raise the risk to extreme.

1. Inspector Hall identified the source of the risk to EF if the Director made the proposed disclosures, as 'some of Australia's most notorious and violent criminals who are proven to have organised murders in the past'. His assessment also included the following opinions:

HS 3838 has previously been threatened by Horty Mokbel, Mick Gatto and others. That group have specifically stated that if HS 3838 were found to be a human source then HS 3838 would be killed.

These letters will become public domain. This will cause all clients of HS 3838 to question has HS 3838 informed on them. Some may seek to take revenge.

Historic treatments used by HS 3838 to practice face to denial of assisting police and remaining in contact with underworld figures in order to allay suspicion will no longer be viable.

The most effective treatment is for the OPP not to write to these eight criminals.

Notify HS 3838 well in advance that the letters are to be sent.

There are no treatments if letter is sent given HS 3838 refuses to participate in witness protection.

1. Inspector Hall made a further risk assessment on 29 July 2016 after an article was published on the front page of the Herald Sun, entitled 'I Set Up' with a photograph of Mr Rob Karam'. He assessed the subsequent risk to EF as extreme because the new information contained in the article had damaged her most reliable strategy of face-to-face denial of suggestions that she had assisted police. He stated:

Every piece of further disclosure is one more piece of further information that adds up to increase the overall risk. With the recent publication of the article, it is now critical that no further information enter the public domain.

1. Inspector Hall was not called to be cross-examined on his affidavit and his assessments were not contradicted by other evidence. Assistant Commissioner Fontana agreed with Inspector Hall's assessment that 'the risk of death will be materially increased if the DPP makes the proposed disclosure'.[146]
2. Detective Superintendent Peter Brigham agreed with Inspector Hall's risk assessment.[147] In his capacity as the Divisional Manager of the State Intelligence Division of Victoria Police, he was asked to consider the impact on the safety of EF and her family should disclosure be made that she was a human source at the time she was acting as Peters' lawyer. He has been a member of Victoria Police for 35 years, and has managed many witness protection cases, including the threat and risk assessments of such persons. Upon reviewing the material relevant to EF's circumstances and using Mr Peters as an example, he gave evidence that it was 'almost certain that an attempt would be made on EF's life should her role as a human source be confirmed to Mr Peters'. He said:

The risk to [EF's] family would be raised to the highest level if the DPP were to make the proposed disclosure to Mr Peters. [*Redacted].

[EF's] children are also at a significant risk of harm should the involvement of [EF] be disclosed. There has been a previous threat made to [EF's] eldest child in 2014, which was in the form of an anonymous letter.

1. Detective Superintendent Brigham also considered that:

From a witness protection perspective, [EF]'s situation involves an unprecedented number of potential threats on a scale larger than any other witness protection case that the Victoria Police has assessed or managed. The potential threats to [EF] include the friends, family, associates or anyone employed or contracted by organised crime figures who may be seeking retribution or to silence [EF].

Disclosure to Mr Peters would, for the first time, provide absolute confirmation that EF acted as a human source from 2005. There is no effective means of preventing Mr Peters from advising others of the disclosure...

1. The Witness Protection Program has a statutory foundation and s 3B(2)(b) and (c) of the Witness Protection Act 1991 provides:

A witness may be included in the Victorian witness protection program only if

(c) the Chief Commissioner enters into a memorandum of understanding with the witness in accordance with section 5.

1. [*Redacted].
2. [*Redacted]. As mentioned, he considered that EF's children are also at significant risk of harm should her involvement be disclosed. He is also concerned about the risk to EF's close family members and EF perceived a veiled threat towards her mother in an email from Tony Mokbel in 2014.
3. [*Redacted].
4. EF also referred to Detective Superintendent Brigham's evidence of the limits on the effectiveness of the Program. He stated:

If disclosure of [EF]'s role is to be made, in order to satisfactorily mitigate the risk to [EF]'s life, [EF] needs to go into the Witness Protection Program (WPP) well prior to the disclosure being made in the terms and method proposed by the DPP. In order for satisfactory witness protection arrangements to be made [EF] and their children will need to be quickly and permanently moved to another location, cutting off all face to face family and friend contact on a permanent basis. The safety of [EF] would still be heavily reliant on a concerted and lifelong effort by [EF] and abiding by the stringent conditions of the WPP, in order to avoid being located by the threats.

[EF] is heavily reliant upon the ongoing treatment and support for their physical and mental health that has [been] provided by [*Redacted] over a period of many years. Entering the WPP would entail [EF] moving away from this professional support and [EF] has advised that this is a key factor that deters her from entering the WPP.

1. EF gave evidence that if the proposed disclosures occurred she would not enter the Witness Protection Program. She considered it neither safe nor appropriate. She does not trust Victoria Police to maintain confidentiality. [*Redacted].
2. EF has a chronic medical condition that requires treatment [*Redacted].
3. [*Redacted].
4. She made her attitude to the Program clear in a letter to Chief Commissioner Ken Lay of 30 October 2014, in which she also set out her assessment of the assistance that she had provided to Victoria Police. Again it is a long letter, but it is appropriate to set it out in full:

Re: Witness Protection Program and Victoria Police

I am writing to you to formally indicate my position in so far as your organisation's repeated offers to enter the Victoria Police Witness Protection program arising from the revelation of my informer/human source role in the media earlier this year.

[*Redacted], I am not prepared to entrust everything personal to me and my children as well our privacy, safety and wellbeing to the very organization that promised and assured me that my assistance over a number of years would always remain confidential, yet failed so appallingly in protecting my status and indeed, has put my life as well as the lives of my children at risk.

Victoria Police failed to properly and adequately protect my identity as an informer/human source; it is difficult to imagine a greater breach of its duty of care. I would not necessarily expect a response from you (or your lawyers either) on this assertion but should the matter ultimately end up being resolved in the Supreme Court, I am absolutely confident that the negligence of some of your members (past and present) will be able to be established.

Consistent with the manner with which Victoria Police have dealt with me since the media coverage, (haphazard, at times bullying, not bothering to inform me as a victim of the status of any investigation), to date no-one has ever indicated to me what if anything is being done to secure the information I provided as an informer/human source, to determine precisely who is responsible or indeed to apologize to me for what has occurred.

As your organization is well aware, I have never told anybody the details that the Herald Sun has obtained. It still physically sickens me to know that police members have revealed details of specific investigations, specific targets, the names of my handlers and the fact that over 5,000 IR's were created as a direct consequence of my assistance. I live in genuine fear of what may come out next in terms of media or interviews or IBAC. You may say in response to this that I need not worry about media stories because of the injunction/non-publication orders in place however may I indicate that not only have various court orders been breached multiple times to date but that there isn't anyone in Victoria who does not know who Lawyer X is when references are made publicly.

I am not in a position to challenge any risk assessment conducted by Victoria Police so accordingly, I accept what your members have told me that is that my life is in the highest category of danger. This of course is as a direct consequence of breaches of Police regulations (and criminal offences) committed by Victoria Police members in providing information to a number of journalists and media organisations. Whilst I accept my life is in danger, entering Witness Protection on the terms and basis offered and entrusting my life to the very same organisation that has failed me so deplorably is not an option I will entertain.

I have implemented various security and privacy measures to date at my own expense [*Redacted].

On a personal level I feel betrayed by the very people in whom I placed my trust that they would maintain my confidential role and that it would never ever become publicly known.

I am not simply disappointed but rather, I am traumatised by my role being made public.

Of course, the greatest irony is that I provided Victoria Police with significant assistance over a number of years for absolutely no benefit to myself and for altruistic reasons. My last contact with my then handlers was confirming that they had very favourably completed their reports as to the results achieved by reason of my assistance and they advised me to make an application for a reward. Due to the debacle of me being called to give evidence in 2012 and the suggestion that I may have to do so again in 2013, I have not yet made any application as I have always felt that until I could be confident that I would not run the risk of my assistance to police coming out (in evidence), I would not apply and in doing so, confirm all of the targets, the achievements, the investigations in which I was involved and the monies and properties seized and criminals prosecuted. Now that Victoria Police members have revealed my status publicly, it is my intention to formally apply to the Rewards Committee.

It is also my intention to issue legal proceedings against Victoria Police for breaching its duty of care to me as an informer/human source unless your organisation is prepared to resolve this matter by way of negotiation.

I am prepared to meet with you to try to reach a mutually acceptable agreement. I would encourage you to consider this option seriously because it is in no-one's best interests for my role and involvement as an informer/human source to be detailed in a Writ or explored in civil proceedings.

I see no point in having any further meetings with any officers from Witness Protection, particularly if I am made to feel threatened by them (and/or other independent persons they may bring with them as happened three months ago). For completeness, I commend the professionalism, dedication and honesty of Detective Inspector Ian Campbell, in whom I maintain confidence and trust as my liaison officer. Others in your organisation could learn from the example he sets.

1. EF submitted that it was not open for the Director to contest the truthfulness of her evidence that she would not enter the Program as her evidence had not been challenged in cross-examination. Nor had she been asked whether she would agree to any alternative program. She relied on the rule in Browne v Dunn.[149]
2. EF also submitted that the Chief Commissioner's evidence did not establish that Victoria Police would be able to protect her if she did not enter the Program. Detective Superintendent Brigham only said that negotiations were ongoing with respect to non-program assistance to her.[150] Assistant Commissioner Fontana stated that Victoria Police always tried to accommodate alternative measures, while adding:

'but it is not a good - it's really unsustainable in a lot of ways and I've lived through this with the Hodson murders because they were witnesses of the Corruption Division [that] I was in charge for many years and we tried to provide alternative assistance'.[151]

1. The Director submitted that the Court should decide whether his proposed disclosures would increase the risk to EF, and not determine her 'absolute level of risk'. The Court should consider the measures, available to protect EF including witness protection [*Redacted]. It was unlikely that anyone faced with the risk of almost certain death would not take advantage of measures available to lessen that risk. The risks to EF were extreme even if the Director did not make his proposed disclosures because of the information about her already in the public domain. Risks of harm to a person were not the only consideration in determining whether to release evidence. The Victorian Court of Appeal in Ross (a pseudonym) v Chief Commissioner of Police and Chief Examiner[152] considered the weight to be given to the risks caused to a person from the release of evidence given before the Chief Examiner. The Court stated:

None involved in this case denied that, should her evidence be made available [redacted], the risk to the appellant's safety is real. In our view, however, the provisions of the Act contemplate that there will be occasions where the safety of a witness might be put at risk and making his or her restricted evidence available, yet the interest of justice nonetheless require that the evidence be made available. This is such a case. Making due allowance for the fact that the appellant's evidence was given under compulsion, and at a time when she was entitled to expect that her safety would be protected by its non-disclosure, the interest of justice require that her evidence be made available.

It matters little, in our view, that the prosecution's circumstantial case would remain strong absent her evidence. The appellant's evidence provides very significant underpinning to that circumstantial case. Moreover, her evidence contains a confession to the killing by [redacted], and attempts by him to cover up that killing. Hence, the importance of the evidence cannot be gainsaid.[153]

[Redacted] is charged with murder. There is a public interest in ensuring his conviction for that most serious crime. Proving [redacted]'s guilt of that crime, by harvesting the appellant's restricted evidence, outweighs the interest that there may be in avoiding prejudice to the appellant's safety. Her safety is, of course, a factor which must be weighed in the balance in determining what the interest of justice require. Securing [redacted]'s conviction for murder, however, in the circumstances of this case outweighs her legitimate concerns for her welfare.[154]

1. As previously mentioned, the Commission made submissions about the Charter right to life and submitted that whilst it was uncertain whether the State had a positive obligation at law to protect life, the requirement under s 38 of the Charter that public authorities give proper consideration to relevant human rights when making a decision meant that EF's right to life was engaged. The extent to which the Director's proposed disclosure would endanger EF's life and whether that danger could be ameliorated by protective measures was an evidentiary question in the proceedings. Similarly, EF's right to liberty and security were engaged.
2. The Commission also made submissions about the right to be free from arbitrary interference with one's family and protection of families and children. It submitted that s 13(a) of the Charter contained a 'negative right' that demands that the state not interfere, unlawfully or arbitrarily, with a person's privacy, family, home or correspondence. Section 17(1) and (2) provide a positive right that the state protect families: s 17(1) and children, as in their best interests and needed by them by reason of being a child: s 17(2). The Commission submitted that the application of these rights will often overlap and with respect to EF's children were 'undoubtedly engaged'.

1. EF and her treating doctors gave evidence as part of the Chief Commissioner's case. Their evidence is relevant to establishing EF's medical condition when she was recruited as an informer and when she was acting as an informer and further support the view that the State owes her a duty of care. The evidence is also relevant to assessing her explanation for her unwillingness to enter the Witness Protection Program.
2. [*Redacted].
3. [*Redacted].
4. [*Redacted].
5. [*Redacted]. EF has also received treated by a psychiatrist.
6. [*Redacted].
7. EF's father died when she was in year 12 at school and her mother died in 2011 from pancreatic cancer. [*Redacted]. Particular police officers with whom she had contact while an informer filled a father figure role for her.[155]
8. [*Redacted].
9. [*Redacted].
10. [*Redacted].

1. I accept the police evidence that there is likely to be an attempt on EF's life if the disclosure letters are sent and that the Director's proposed disclosures will increase the risk of that occurring. The evidence came from officers with considerable experience of witness protection and witness risk assessment and I saw no reason to doubt it. There is clear, uncontradicted evidence that official confirmation of her role as a police informer is a significant development in adding risk. The disclosure to any one of the individuals would result in an 'uncontrollable and irreversible release of information'. It is unnecessary to determine whether there was a breach of the rule in Browne v Dunn,[156] even if there was that does not mean that the unchallenged evidence has to be accepted. But, in this instance, I do accept the evidence.
2. Although the assessments related to EF's safety, the threats to EF may affect her children. A threat has been made to her oldest child. I have taken into account that risk in reaching my conclusion. The Charter rights of the child were referred to. The risk to the children make it clear why, despite my conclusions, Victoria Police must take reasonable care for them. Significant steps must be taken to protect her and her children.
3. [*Redacted].

The extent of public knowledge that EF was a police informer

1. The question whether the EF's action in being a police informer while acting as a lawyer is publicly known is relevant both in this proceeding and in the second proceeding. In this proceeding, the risk of harm occurring to EF from the Director's proposed disclosures might be considered less, if the substance of the disclosures is already widely known in relevant circles.
2. The Director submitted that if any of the seven named persons already knew or suspected that EF had been a police informer that supported an argument she would not suffer harm from further disclosures. He submitted that the Chief Commissioner's claim for non-disclosure was undermined by the fact that EF's role as an informer must now be taken as generally known among the criminal underworld.[157] Accordingly, the risk to EF was already heightened, so that an incremental increase in risk as a result of his disclosure was not as great as submitted by the Chief Commissioner.[158] The Director did not argue that EF would not suffer harm from further disclosures and acknowledged that the already very high risk to EF would increase, but that there is sufficient information in the public domain available to the named persons, which undermines the argument that the risk to EF's life will imminently increase as a result of the disclosures.
3. In contrast, the Chief Commissioner argued that the fact that the information might already be in the public domain was entirely neutral and 'cut both ways'. The more any of the named individuals knows or suspects that EF was a police informer, the less assistance the individual will obtain from the proposed disclosure. The less a person knows or suspects that EF was an informer, the greater the risk to EF and her children if the Director makes the disclosure.
4. EF said in evidence that 'the whole world knows who Lawyer X is now'[159] and:

When I say 'the whole world,' I probably should clarify that to anyone who would have a reason to harm me, because the people - a lot of people in prison, the Herald Sun is their Bible. It's known as the Bible in there. There was a - 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.[160]

1. Much of the evidence about the public knowledge of EF's role came from Assistant Commissioner Fontana who gave evidence about the significance of evidence being in the public domain. In April 2010, EF in her own name sued the Chief Commissioner in this Court, but apparently without revealing that she was a police informer for Victoria Police. The proceeding was settled and the media published the fact that settlement had occurred.
2. In 2009, Paul Dale, who was a former member of Victoria Police and Rodney Collins were charged with the murder of the Hodsons. In those proceedings, EF was referred to as 'witness F'. She had made covert recordings of conversations with Dale. Victoria Police were extremely concerned about risks to her safety and security if she was called as a prosecution witness. She made a statement and the prosecution intended to call her as a witness about her relationship with Dale and her knowledge of his activities. [*Redacted].
3. The committal commenced on 10 March 2010 and an application for a suppression order in respect of EF's identity was refused. Then, in April 2010, media outlets published articles that identified 'Witness F' by her name as a witness in the criminal proceeding against Dale and Collins. The articles stated that EF, using her real name, made a statement to Victoria Police, covertly recorded a conversation with Dale, and was to be called as a witness in the committal hearing of the murder charge against him. The committal ultimately did not proceed following the murder of Carl Williams, who was to be a prosecution witness.
4. In order to protect EF, Victoria Police and EF have maintained publicly that her sole assistance to police was in the prosecution of Dale concerning the Hodsons' murders. They did so on the assumption that the criminal fraternity would not be concerned about EF assisting police to pursue a former police officer and they appeared to forgive her. When questioned by various criminals following the publication of media articles, she has used bluff and plausible denial as cover.[161]
5. The Commonwealth Director of Prosecutions subpoenaed EF to give evidence in 2011 at a committal hearing of Dale on charges of giving false evidence to the Australian Crime Commission. The subpoena was withdrawn after Victoria Police expressed its concerns for her security and safety.
6. In March 2014, the Herald Sun published online and in regional areas, and had intended to publish on the front page of its metropolitan edition, an article about a prominent underworld lawyer, called 'Lawyer X', being recruited and registered as an informer by Victoria Police to provide information about serious criminals involved in 'Melbourne's gangland war'. The Chief Commissioner made an urgent application to this Court for an injunction against the Herald and Weekly Times and it consented to remove details contained in the article so that 'Lawyer X' could be less readily identified.
7. [*Redacted].
8. On 1 April 2014, the Herald Sun published a further article linking 'Lawyer X' to criminal figures. The article included details of a multi-million dollar settlement reached with 'Lawyer X' and an agreement that she would not be called as a witness in a criminal trial. The Chief Commissioner obtained injunctions in this Court restraining the Herald Sun from publishing any future articles about 'Lawyer X'.
9. On 2 April 2014, Victoria Police re-offered EF [*Redacted] entry into the Witness Protection Program, but she did not agree to the offer. After further discussions on 7 April 2014, EF told Victoria Police that she was not prepared to enter the Program [*Redacted]. In subsequent correspondence, Victoria Police told her that the current risk to her safety was high and that the best way for her to manage that risk was to enter the Program on terms offered by Victoria Police.
10. At the inquest into the Hodsons' murders, the Coroner made an interim suppression order of EF's identity.
11. Following Herald Sun articles about 'Lawyer X' and the Kellam Report, in March 2015, the Chief Commissioner following an urgent application obtained injunctions in this Court against the Herald and Weekly Times.
12. On 26 July 2016, the Herald Sun published an article on the front page headed 'I was set up.' The report detailed assertions, purportedly based on documents filed in support of an application in the Court of Appeal. Mr Fontana stated that the 26 July 2016 publication materially increased the risk to EF's life and made police's task of obtaining information from informers more difficult.
13. Assistant Commissioner Fontana said that after the publication of the Herald Sun article on 26 July 2016, senior police had numerous contacts with EF about her safety. [*Redacted]. Mr Fontana said that EF's continued actions were detrimental to her safety and believed that she continued regular contact with criminal figures.
14. On 7 March 2017, the Court made further orders in respect of a Herald and Weekly Times article, titled 'Mokbel's crack at freedom'.
15. The other relevant evidence of knowledge of EF in the public domain concerned Rob Karam's actions. Karam is serving a prison sentence following conviction for Commonwealth drug offences. On 11 July 2016, the Director received a letter from Garde-Wilson Lawyers acting on behalf of Karam, requesting information about the Director's response to the Kellam Report recommendations. The Director's office replied stating that it had not reviewed Mr Karam's case as the Commonwealth Director of Public Prosecutions had been the prosecutor and suggested that inquiries be directed to that office.
16. On 22 July 2016, Garde-Wilson Lawyers acting on behalf of Mr Karam filed in the Court of Appeal an application for an extension of time to file a notice of application to appeal; an application for leave to appeal; two applications under s 317 of the Criminal Procedure Act 2009; and affidavits of Mr Karam and Ms Garde-Wilson.
17. In Mr Karam's affidavit he stated that he was aware of the true name and identity of 'Lawyer X', but he did not state the real name of 'Lawyer X'. He said that he first met her in 2001 and she represented him in a number of proceedings. He also alleged that 'Lawyer X' had engaged in wrongful conduct including suggesting that he engage in seemingly unlawful conduct. He said that he now knows that 'Lawyer X' was a registered informer. He believes that when acting for him in his criminal trials she made forensic decisions aimed at protecting herself as a police informer, rather than in his best interests. He considers that due to EF's role that he did not receive a fair trial.
18. Ms Zarah Garde-Wilson, Karam's lawyer, made an affidavit, which was also exhibited to the Director's affidavit in which she stated that 'Lawyer X's' identity was common knowledge within the legal fraternity and that she was aware of 'Lawyer X's' true identity.
19. Tony Mokbel, through solicitors, by a freedom of information application sought access to documents from the Office of Public Prosecutions. The categories of documents sought, with one exception, all name EF by her name and seek information about her activities as a police informer. The Director informed Mr Mokbel's solicitor that he did not have any of the documents requested. Mr Mokbel has made a freedom of information application to Victoria Police. Mr Mokbel has applied to the Victorian Civil and Administrative Tribunal in respect of that application. That application is before the Victorian Civil and Administrative Tribunal and a suppression order has been made about it.
20. Zlate Cvetanovski has written to the Director's office seeking information about George Peters and EF arising from the Kellam report. I set out that letter later in this judgment.
21. The decision in Dil v Commissioner of Police of the Metropolis[162] is a useful instance of the significance of an informer's identity being in the public domain. The claimants in that case sought damages for deceit, assault, misfeasance in public office and negligence arising out their long term and intimate relationship with four men who they alleged were undercover police officers acting under the direction and control of the defendant. The defendant neither confirmed nor denied the claimants' allegations that the four men were acting as undercover police officers. Bean J did not consider that public interest immunity permitted such a defence. All the individual defendants had been publicly named in the media; some had self-disclosed their identity and some had been the subject of official confirmation. His Lordship stated that self-disclosure was relevant, but was not of the same significance as official confirmation by the police force concerned, HMIC (Her Majesty's Inspectorate of Constabulary), a minister or a court.[163] His Lordship upheld the confidentiality of the identity of the two persons who had not self-disclosed, although each has been named publicly in a variety of media with a photograph of each person. This decision is another indicator of the importance of official confirmation in determining in public interest immunity cases whether information is in the public domain.

Conclusion on the extent of public knowledge that EF was a police informer

1. The evidence is that there has been considerable speculation about whether EF is 'Lawyer X'. However, speculation or assertions that people know something, not least something intended to be secret, is some distance from the effect that official confirmation of that speculation brings. The evidence also is that once any one of the seven named persons is informed by the Director's disclosure letter that EF has been a police informer, that it is likely that the information will become known to the other six and more widely.
2. I consider that Tony Mokbel's and Cvetanovski's actions demonstrate that they do not have, or do not believe they have, sufficient information to seek to commence an appeal. The disclosures will operate as significant confirmatory information that adds to existing information. To this point, EF has been able to maintain denial. The information available from the Karam proceeding does not confirm EF's role.

The public interest in maintaining a system of informers

1. Assistant Commissioner Fontana gave evidence about the possible chilling effect of the Director's disclosures on present and potential informers. He is a very senior officer of Victoria Police of 40 years' experience and since July 2012 has been in charge of Crime Command. He has been a criminal investigator for the majority of his career and worked on drug crime investigations. Between 1998 and 2004, he was attached to ESD, now known as Professional Standards Command. He has managed police witnesses and informers and conducted and considered risk assessments to ensure the safety of witnesses and police informers. He now has oversight and signoff on all controlled operations run by Victoria Police concerning serious and organised crime, which often include the use of police informers and undercover police operatives. He had some involvement with EF, including direct involvement in 2014. He has participated in a high level Victoria Police steering committee, which reviewed EF's involvement with Victoria Police in order 'to achieve future organisational learnings'.
2. Assistant Commissioner Fontana said that the ability of Victoria Police to recruit and use police informers is inherently dependent on potential informers believing that their identity will be kept confidential and that their personal safety will be of paramount importance to Victoria Police and the legal profession will be protected. He also predicted:

In my opinion, disclosure by the DPP of parts of the Kellam report to the persons identified in the Kellam report would make:

any current police informer fearful and extremely cautious about continuing to provide Victoria Police with information: and

any future police informer fearful of becoming a police informer and assisting police, and less likely to do so.

1. He stated that if EF or her children were to be harmed or killed as a result of the Director's disclosures, the willingness of persons to act as police informers and assist Victoria Police would be significantly inhibited. He also stated that if potential police informers believe that their anonymity will not be maintained by Victoria Police, then they would be unlikely to assist Victoria Police and its ability to recruit police informers would be impaired and current police informers would be deterred from providing any further information to Victoria Police. The ability of Victoria Police to investigate serious and organised crime would be impaired. I accept Assistant Commissioner Fontana's evidence. It is consistent with EF's own fears of the likely harm to her should her identity be disclosed.
2. The Director submitted that it was not necessary or appropriate for a court to inquire into the 'likelihood and degree' of inhibition to future information flows or of personal harm to the informer. He relied on statements that the law already decided upon 'the protection of the informant unless disclosure will assist in the protection of the liberty of the subject in criminal proceedings'.[164] However, this case involves an informer in very unusual or, it was said, unique circumstances. Detailed evidence was led without objection about the risks of harm to EF and the consequences of that harm on the willingness of persons to provide information to police. In my opinion, it is appropriate and necessary to take that evidence into account.
3. I accept the Chief Commissioner's case that if EF is publicly named and particularly if harm comes to her, that informers or potential informers will be less likely to provide information of assistance to police.

Conclusion on the public interests to be balanced in order to decide whether the Director's proposed disclosures are subject to public interest immunity

1. I consider that the public interests to be balanced in determining whether public interest immunity applies to the Director's proposed disclosures are on the one hand the likely harm to EF and her children and the possible resulting effect on the flow of information from other informers as sources of information and on the other hand the likely assistance that the proposed disclosures would provide to the seven named persons in quashing their convictions. I consider that the decision in Jarvie[165] supports that conclusion. I consider that the protection of the integrity of the criminal justice system and the rights of an accused to a fair trial are relevant. But, they are to be considered as part of the assessment of whether the proposed disclosures would provide substantial assistance to the seven named persons in setting aside their convictions.
2. I do not consider that investigation of misconduct by legal practitioners or police officers is a public interest by itself to be balanced in deciding whether public immunity applies. There are legal regulatory bodies and IBAC, who are better placed to pursue those issues. However, such misconduct may be relevant in determining whether the proposed disclosures might provide the required substantial assistance to the seven named persons because it may help to establish that they have not received a fair trial or that there was an interference with the integrity of the criminal justice system in their prosecution.

Assistance of the proposed disclosures to the seven individuals

1. The next section of this judgment considers the assistance that the proposed disclosures might provide to the seven named persons in challenging their convictions.
2. Nothing said in the following paragraphs should be taken as any finding of fact about the conduct of any person mentioned where that conduct is in dispute, rather, the focus is on evidence and arguments that might provide the seven persons with the required substantial assistance.
3. The Chief Commissioner submitted that the Court could only consider the information that the proposed disclosures would provide. They would not provide the new evidence needed for an application for leave to appeal, or for a petition of mercy. Rather, they would provide a foundation for the persons to apply to the Court of Appeal seeking an extension of time in which to apply for leave to appeal, and if necessary, seeking an order under s 317 of the Criminal Procedure Act 2009 for production of material held by the Chief Commissioner or the Director.
4. The other evidence that might be available to the seven named persons were the three case studies, including the attached ICRs and audio recordings of particular ICRs. In addition, there were abstracts of meetings on 30 October 2006, being the review of briefs meeting, the facts admitted by EF and the transcript of her evidence concerning the seven named persons.
5. The Chief Commissioner submitted that the Court should decide the case based on the assistance that would be provided to Mr Peters, or, if the Court determined that there was any other named individual to whom disclosure might provide a greater degree of assistance, in the case of that individual. The Court should consider the evidence 'only through the lens of the possible procedural assistance that the documents or transcript of EF's evidence in this proceeding might afford to the relevant named individual. The Court should assume that if the proposed disclosure is made to any of the seven named persons, the risks to EF on which the Chief Commissioner's case is based, will crystallise so that his case would fall away in respect of the remaining six individuals.[166]
6. The parties, in essence, submitted that the Court should not attempt to make a final decision on the outcome of the proposed disclosures for the convictions of the seven persons not least because they had not been notified of the proceedings and therefore had not had been heard on the issues raised. In addition, all the facts were not before the Court and challenges to the convictions would be matters for the Court of Appeal.
7. EF submitted that the information contained in the Director's letters would not tell the seven named persons anything of value and did not disclose any iniquity.
8. The Director's proposed disclosures are expressed in terms that 'some material contained in the Kellam Report could be interpreted to mean'. In the context of this proceeding having been commenced and evidence led and submissions made, I have taken that to now intend to convey that there is evidence before the Court that supports the terms of the Director's proposed disclosures.
9. Where I have concluded that the terms of the Director's proposed disclosures to some of the seven persons are not supported by the evidence, I have considered whether the evidence and submissions might otherwise provide substantial assistance to the person in challenging his convictions. The parties made submissions on that general issue as well on the terms of the proposed disclosures. The Director stated that the terms of the disclosures might alter as a result of these proceedings.

Police Operations: Landslip, Matchless and Posse

1. Six of the seven named persons were charged with criminal offences arising from the following police operations.

1. This operation concerned the manufacture of methamphetamine at a clandestine laboratory in Pascoe Vale South between February 2001 and February 2002. Both George Peters and Tony Mokbel were charged with offences arising from Operation Landslip.

1. Operation Matchless concerned the manufacture of methamphetamine at a clandestine laboratory in McCrae between May and September 2002, and at a clandestine laboratory in Rye between September 2002 and April 2003. George Peters, Milad Mokbel and Tony Mokbel were charged with offences arising from Operation Matchless.

1. Operation Posse concerned the manufacture of methamphetamine at a clandestine laboratory in Coburg between May and November 2004; at a clandestine laboratory in Preston between November 2004 and April 2006; and at a clandestine laboratory at Strathmore in April 2006. Ahec, Cvetanovski, Peters, Milad Mokbel and Tony Mokbel were charged with offences arising from Operation Posse.[167]

Agreed facts concerning EF and the named persons

1. The parties - being the Chief Commissioner, EF and the Director - prepared a Statement of Facts. I set out below the facts that EF and the Director agreed. The facts are mainly concerned with EF's actions. I find those facts proved because of the agreement of those parties, which was given only for the purposes of this proceeding. I have not set out and do not find proved any fact that either EF or the Director did not agree to. A number of the facts that I find proved were not agreed to by the Chief Commissioner because he did not have knowledge of the particular events described that they described. But that does not prevent the Court acting on the agreement of EF and the Director.[168] I have also set out under the heading 'Additional Evidence', other evidence, both oral and documentary, in respect of the particular individuals as well as noting EF's evidence or disagreement on relevant matters or assertions.

1. On 13 February 2002, Mr George Peters was arrested and charged with offences relating to the manufacture of methamphetamine at Pascoe Vale South in February 2002 - the Landslip charges.
2. On or about 11 April 2003, Peters was arrested and charged with offences relating to the manufacture of methamphetamine between June 2002 and April 2003 - the Matchless charges. He was in custody from April to December 2003, when he was given bail.
3. The agreed facts concerning George Peters are set out in the following seven paragraphs.
4. Between November 2002 and April 2006, EF was briefed to act on behalf of Peters in respect of pending criminal proceedings.
5. Pursuant to that brief, on behalf of Peters:

(a) On 14 November 2002 EF appeared at a committal mention hearing in relation to charges arising from Operation Landslip;[169]

(b) On 26 September 2003 EF appeared at a bail application relating to bail from charges from Operation Matchless;

(c) On 30 September 2003 EF appeared at a bail application relating to bail from charges from Operation Matchless;

(d) On 21 and 22 March 2005 EF appeared at a committal hearing in relation to charges arising from Operation Matchless and Operation Landslip. At that time EF negotiated on behalf of Peters, and a resolution was reached on the pending charges against Peters. Peters was committed to stand trial;

(e) On 13 September 2005 EF appeared at a case conference in relation to Matchless charges;

(f) On 28 October 2005 EF appeared at a mention in relation to the Landslip and Matchless charges;

(g) On or about 13 April 2006 EF met with Peters and her instructing solicitor, Tony Hargreaves, in relation to the pending plea hearing for the Landslip and Matchless charges;

(h) On or about 15 April 2006 EF asked Peters to collect character references to prepare for his pending plea hearing.

1. Between October 2005 and April 2006 EF provided information to Victoria Police about the activities of Peters relating to matters other than the Landslip and Matchless matters, with which he had already been charged.
2. That information was utilised by Victoria Police to obtain evidence that resulted in the arrest of Peters on 22 April 2006 and charges arising from Operation Posse.
3. On 22 April 2006:

(a) A member of Victoria Police contacted EF at about 9.30 am and advised her that Peters may be arrested that day;

(b) Peters was arrested in the afternoon. He requested that EF be contacted;

(c) EF attended the police station at which Peters was held and spoke with Peters once before his formal record of interview. EF spoke to Peters a second time later that day, after Peters had been speaking to police;

(d) Peters made admissions to the police.

1. On 26 April 2006 EF appeared for Peters on a filing hearing in relation to the Posse charges.
2. On 28 April 2006 EF appeared for Peters in a mention in relation to the Matchless charges.

1. In addition to the facts that EF and the Director admitted, the following evidence was before the Court.
2. On 8 February 2007, Peters pleaded guilty to one Landslip charge, two Matchless charges, and two Posse charges, and one charge of possessing an unregistered handgun. On 23 February 2007, Peters was sentenced to 10 years' imprisonment with a non-parole period of seven years.
3. Peters sought to develop a personal relationship with EF, for instance on one occasion she babysat his children. He appears to have trusted her. She acted as the person to whom acceptances were to be sent for his birthday party. He did not know that she was a police informer. She described him as a compulsive gambler who was sometimes at times 'off his head' from using drugs. He was pressured by the Mokbels to manufacture drugs, sometimes being forced to work at gun point.
4. Victoria Police asked EF to tell them whatever criminals told her. They encouraged her to dine with the criminals whom she knew and increasingly they told her more about their criminal activities.[170] She sometimes told Peters to stop telling her about his activities.
5. She did not know the value of the information that she gave to the police, but sometimes it proved to be very valuable.[171] In late 2005, she provided police with information about Peters' manufacture of drugs and about his movements.[172] For example, on 26 September 2005, Peters told EF that 'cooking' of drugs was occurring at an address in Coburg and possibly at another address and that he was involved. She told the police of this information.[173] In September 2005, EF told police that Peters was a good candidate to 'roll' Milad Mokbel.[174] On 1 October 2005, EF told police that she believed that Peters respected Detective Sergeant Flynn of the Purana Taskforce and would speak to him in the right environment.[175]
6. On 26 September 2005, police records show that EF told them that a Mr Traglia and Peters would both have sufficient information about Milad Mokbel to put him away for a long time. EF said that that this was not new information.[176]
7. An ICR of 29 December 2005 records EF's feelings of guilt about disclosing Peters' activities to police and that she felt that she had betrayed his trust.[177]
8. ICR 184 of 30 December 2005 states:

TASKING: Attempt to identify where the drug laboratory is located and contact DSU when PETERS makes contact with 3838. 3838 is still worried about betraying PETERS' trust, but is of the belief that it is the correct thing to do.

1. On 2 February 2006, EF suggested to police that 'George Peters be targeted financially and is owed a ton of money' and on 22 February 2006 that 'if George Peters had no money, he may talk.'[178] She accepted that she had told police that if 'George Peters has no money, he may talk'.[179] The evidence was that he had no assets.[180]
2. EF agreed that, on 13 April 2006, she was asked by police to gather intelligence on the location of Peters' current laboratory and that subsequently she told them its general location.[181] In March and April 2006, EF told police of Peters' establishment of a clandestine drug laboratory.[182] That led to his arrest and the arrest of Frank Ahec. [183]
3. On around 14 April 2006, EF stated she 'feels sick from telling the location of George Peters' lab site'.[184] In evidence, EF said a reasonable summation was that she 'felt sick/guilty and stressed over what she had said re George Peters'.[185]
4. On 16 April 2006, EF told the police that she hoped that 'Ahec, Cvetanovski and Mokbel are arrested at the same time [as Peters]'.[186]
5. On 22 April 2006, after police had arrested Peters, they phoned EF and she attended the St Kilda Road Police Complex. She spoke to Peters at about 4pm, before his first formal police interview.[187] She went there as Peters' lawyer and knew that he trusted her as a friend.
6. She spoke separately to Frank Ahec who had been arrested as part of the same police operation.[188]
7. EF then left the Police Complex for some time and said that she went into hiding at a South Melbourne hotel. She was concerned for her safety as Peters' arrest had been leaked to the media and she feared the reaction of the Mokbels to her not telling them of Peters' arrest.[189] EF was told that she could not tell Mokbel about the arrest as that might be perverting the course of justice.[190] She returned to the Police Complex at about 9pm and again spoke with Peters. In the meantime, police had put 'the absolute fear of God' into him.[191] He told her that he was going to assist police, but he was scared.[192] He wanted to minimise the penalty that he would receive.
8. In EF's discussion with Peters before his second police interview,[193] Peters expressed concerns for her safety, because she had broken 'the golden rule' by not warning other criminals of Peters' arrest.[194] EF could not recall whether she suggested to Peters that he should assist police.[195] She recalled being in a room with Detective Flynn, Ahec and Peters, but she could not recall the details of the discussion that occurred then.[196]
9. EF advised the police that Peters had decided to assist them.[197] ICR 618 of 22 April 2006 states:

3838 advises PETERS has decided to assist Police. He can see the awkward position that he has put 3838 in. 3838 agrees, however, that EF has done the best thing for PETERS' situation. 3838 believes that 3838's life may now be in danger because hasn't advised MOKBELS of arrest.

1. Because Peters had decided to assist police, EF no longer considered that she was his lawyer.[198] Peters then took part in a second interview with police.
2. EF was asked about Peters' evidence at the trial of Zlate Cvetanovski in April 2011, where Peters agreed that on 22 April 2006, EF had advised him about his options and discussed his decision to assist police. She said that based on the transcript it was an accurate description of what happened.[199]
3. The evidence does not support the conclusion that EF convinced Peters to plead guilty and assist Victoria Police. She said that he was always going to plead guilty.[200]
4. As previously stated, on 28 April 2006 EF attended the filing hearing in relation to the Posse charges against Peters.
5. According to ICR 771, on 15 May 2006, EF spoke to Peters about how to make him bulletproof from cross-examination.[201] EF was to check Peters' statements and still wanted to negotiate the best position for him as a client regardless of how he got into that position. EF said that she did not have a specific memory of the statement contained in that ICR, but that she assumed that the authors were writing what she was saying.[202]
6. Peters then assisted police and he delivered drugs to targets, including Milad Mokbel, who was arrested on 25 April 2006. The police then re-arrested Peters.[203] Peters made many statements to assist the police in subsequent prosecutions.[204]
7. EF kept in contact with and visited Peters while he was in prison. She said that she needed to look after his legal interests when he signed statements to assist police.

1. The Chief Commissioner submitted that the Director's proposed disclosure to Peters could, to some degree, support an application to quash his convictions in relation to the charges arising from Operation Posse.
2. EF contended that the evidence against Peters in respect of both the Matchless and Landslip charges was overwhelming.[205] He pleaded guilty and there was no evidence that her conduct had influenced his plea. She had not engaged in any impropriety in connection with the police's recruitment of Peters and his giving evidence against Bednarski, Milad Mokbel or Khoder. She was not representing Peters when she gave police information that assisted them locate the drug laboratory. The extent of EF's obligations of confidence concerning information about criminal activities that Peters told her was unclear given that there was no confidence in an iniquity and that the information may have been provided on social occasions and did not relate to existing charges against Peters.
3. The Director submitted that EF was, at the same time, acting for Peters as his lawyer, gaining information from him about his criminal activities as a result of that relationship, and providing that information to police.[206] She became a human source in part to rid herself of clients like the Mokbels.[207] EF and Victoria Police's strategy included that the Mokbels' associates, in particular Peters, might cooperate with police and turn against the Mokbels. The Director submitted that Peters needed to know that EF and Victoria Police set out on a concerted conspiracy to set him up, to 'roll him'. Peters was not advised that he might have been able to challenge the admissibility of the evidence against him on the basis of an illegality or impropriety by EF and the police.
4. Peters' decision to plead guilty was made when he believed that EF was acting in his best interests and advising him of the legal options available to him. He was her good friend, confidant and trusted client. His plea of guilty must be viewed in that context. EF provided information to police that helped locate the drug laboratory and led to Peters' and Ahec's arrests. It was unnecessary for the Director to establish that a miscarriage of justice had occurred but only 'that there is good reason to think that the information might substantially assist Peters or others'.
5. The Amici made similar submissions to the Director's. They noted that EF had acted for Peters while providing information that he had given her to the police.

1. There is an additional matter that concerns most of the seven persons. With the exception of Cvetanovski, all of them eventually pleaded guilty. EF submitted that a conviction following a plea of guilty can only be overturned in exceptional circumstances, for example where the accused did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it; or upon the admitted facts, the applicant could not in law have been convicted of the offence charged.[208] While that is true, there is a duty on legal practitioners and others associated with prosecutions not to do anything that corrupts or subverts the administration of justice. Even a conviction following a guilty plea can be quashed by application of that principle.[209]

Conclusions about the assistance that the Director's proposed disclosures might provide to Peters

1. While EF was registered as a police informer, Peters was her client. Thereafter, she appeared for him on the Landslip and Matchless charges. She provided information to police about him before his arrest including the general location of the Strathmore drug laboratory. That led to his arrest. She acted as his lawyer on the day of his arrest when he ultimately agreed to assist police. She also appeared for him in relation to the Posse charges. He was entitled to receive independent legal advice about his options before he decided to plead guilty, but he did not receive it.
2. The facts agreed to by EF are that while acting for Peters in respect of Operations Landslip and Matchless, she was a police informer and between October 2005 and April 2006 provided information to Victoria Police about his activities relating to matters other than the Landslip and Matchless matters, with which he had already been charged. That information was used by Victoria Police to obtain evidence that resulted in Peters' arrest on 22 April 2006 and charges arising from Operation Posse. For instance EF provided information to Victoria Police that assisted in locating the clandestine drug laboratory in Strathmore. She then spoke to him after his arrest and appeared for him on two occasions, once in respect of the Posse charges, and once in respect of the Matchless charges.
3. The evidence suggests that EF's conduct in providing information about Peters was to rid herself of the Mokbels, as she understood that he might assist the police to prosecute them.
4. Peters pleaded guilty and may have received a lesser sentence because he assisted police. But his plea and assistance to police occurred in the context of his understanding that EF, as his lawyer, was acting solely in his interests. That was not the case.
5. In providing information to Police about a client that led to him being arrested on further charges, EF arguably breached her professional duties to him including her duty of loyalty. In speaking with him after his arrest, when he may have perceived her to be acting as his lawyer, and then appearing for him on two occasions, she arguably also breached her professional duties and obligations because of her conflict of interest.
6. Peters' case demonstrates the complexity of the issues that arise because of the dual role that EF played. Although he pleaded guilty and assisted police, he did so, it would appear, on the assumption that EF had been representing his interests and was able to provide him with independent advice. He might use the disclosure and other material that he might subsequently obtain to establish that EF had played a double role as his lawyer and as a police informer against him.
7. The dual role EF played might assist Peters in having his convictions set aside, despite his plea of guilty. He was not given independent advice and EF was obliged to inform him of anything that might assist him. The Director's disclosures may therefore provide him with substantial assistance in establishing that the proceedings against him involved an abuse of process because of the invasion of his right to have his legal representative act solely in his best interests and not assist the prosecution. Those arguments might assist him establish that a miscarriage of justice had occurred.

1. The agreed facts are set out in the following four paragraphs.
2. On 22 April 2006, Frank Ahec was arrested, together with Peters.
3. When arrested, Ahec asked for EF to attend St Kilda Road Police Station.
4. On 26 April 2006, EF represented Ahec at the filing hearing in relation to the charges laid following his arrest on 22 April 2006.
5. By 30 October 2006, EF had been retained by Ahec to appear on his behalf to enter a plea in relation to the charges laid following his arrest on 22 April 2006. Pursuant to that brief:

(a) On 17 January 2007, EF represented Ahec at a mention hearing;

(b) On 23 February 2007, EF represented Ahec at a committal mention hearing. On behalf of Ahec, EF agreed with the prosecutor on the resolution of the charges;

(c) On 24 May 2007, EF represented Ahec at a plea hearing, which was adjourned after approximately 45 minutes;

(d) On 28 May 2007, EF represented Ahec at the resumption of the plea hearing, which lasted under two hours;

(e) On 30 October 2006, EF reviewed the prosecution brief of evidence that police proposed to serve on Ahec to ensure that her status as a police informer was not disclosed by the information in the brief. EF did not inform Ahec of that fact.

1. As mentioned, on 16 April 2006, EF told police that she hoped that Ahec, Cvetanovski and Mokbel were arrested at the same time.[210]
2. Ahec was arrested along with Peters on 22 April 2006 outside the Strathmore clandestine laboratory and charged with Operation Posse charges. Information leading to his arrest, and the collection of the evidence that founded the Operation Posse charges against him were obtained by police in the same manner as the information and evidence obtained against Peters. EF had given police information about the location of the Strathmore laboratory.
3. EF met with Ahec after his arrest and gave him legal advice about the Operation Posse charges.[211] She thought that she had spoken to Ahec on the phone first, then in person after he had done his 'no comment' interview.[212]
4. EF said that she did not inform against Ahec.[213]
5. She reviewed the prosecution brief in October 2006 before Ahec saw it and while he was her client, but did not tell him that she had done so.[214]
6. On 24 May 2007, Ahec pleaded guilty to one charge relating to trafficking at Preston and one charge arising from Operation Posse. On 4 June 2007, he was given a total effective sentence of 4 years' imprisonment, with a non-parole period of 2 years and 6 months.

1. The Chief Commissioner submitted that EF did see Ahec after he was arrested and did give him legal advice while she was a police informer. Although, the test that the Court of Appeal would apply in determining any application to quash his conviction was not known, there was material available from which he might derive substantial assistance in quashing his conviction.
2. The Director submitted that the arguments available to Peters once provided with the Director's disclosures may equally assist Ahec. He was arrested and charged as a result of the same chain of information that had led to Peters' arrest and which EF supplied while acting as both lawyer and informer. EF acted for Ahec by giving him legal advice about the Operation Posse charges and entered a plea of guilty on his behalf. She did not tell him of her conflict of interest or how her conduct had led to his arrest and charging. EF was involved in discussions with the Office of Public Prosecutions concerning Ahec's plea offer.[215] The fact that he pleaded guilty was immaterial.
3. The Amici submitted that the important point was that EF, while representing Ahec, provided information about him to the police.
4. EF contended that she did not know Ahec and did not inform against him. She did not have advance knowledge of his arrest. She was not representing him when she provided information about the Strathmore laboratory or when she first spoke to him on 22 April 2006. He had already decided to plead guilty before she spoke to him. This was an example of the inaccuracies in the Director's proposed letter. She looked at the Posse prosecution brief to identify whether there was any information in it by which she could be identified.[216] In addition, there was an overwhelming case against Ahec.[217]

Conclusions about the assistance that the Director's proposed disclosures might provide to Ahec

1. The evidence is that EF, when aware of Ahec involvement in criminal activity, provided police with information about the Strathmore drug laboratory that led to his arrest. She had expressed hope that he might be arrested. The evidence does not establish that she was acting for him when she provided that information. The first proposed disclosure in the Director's letter is not supported by the evidence. Nor is there evidence that any person for whom EF had acted while an informer gave evidence against Ahec. The second proposed disclosure in the Director's letter is also not supported by the evidence.
2. However, considering the effect of the evidence as a whole, EF, having been a cause of Ahec's arrest, arguably had a conflict of interest and could not discharge her duty of loyalty to him as she was unable to disclose to him how the police obtained the information that led to his arrest. But, despite that conflict, upon his arrest, she then acted for him in respect of the Operation Posse charges. She checked the prosecution brief to ensure that she was not mentioned in it.
3. It is arguable that by EF's actions, Ahec was denied independent advice. Being informed of EF's role might assist him in challenging his conviction on the basis that he did not have the option of a fair criminal trial because his counsel was not independent. He might also be able to argue that the proceedings against him involved an abuse of process as he was unaware of how Peters came to provide evidence against him. That might provide a basis for an argument that a substantive miscarriage of justice had occurred. If he had known that EF was a police informer he might have been able to seek to have Peters' evidence excluded, a point that was highlighted by the Director in respect of Cvetanovski's conviction and is discussed below. While a point of distinction is that Cvetanovski pleaded not guilty and Peters gave evidence against him, Ahec's arrest was due to Peters' actions.

1. The facts agreed are set out in the following four paragraphs.
2. On 26 April 2006, Milad Mokbel was charged with offences arising from Operation Posse.
3. In or about late April 2006, Milad Mokbel requested that EF act for him in relation to the charges.
4. On 18 September 2007, Mokbel's solicitor, Alistair Grigor wrote to the OPP to offer to plead guilty on a particular basis.
5. On 30 October 2006, EF reviewed the prosecution brief of evidence that police proposed to serve on Mokbel to ensure that her status as a police informer was not disclosed by the information in the brief. EF did not inform Mokbel of that fact.

1. On 25 April 2006, Milad Mokbel was arrested. On 26 April 2006, he was charged with offences relating to trafficking in methamphetamine and dealing with the proceeds of crime at Brunswick and Strathmore.
2. On 30 June 2008, Mokbel was charged with offences relating to the trafficking of methamphetamine at McCrae between May and July 2002 and at Rye between September 2002 and April 2003 - the Matchless charges.
3. On 22 July 2011, Milad Mokbel was sentenced in the Supreme Court in relation to the Matchless charges to a sentence of four years' imprisonment with two years to be served concurrently with his existing sentence. A new non-parole period of four years, five months and two days was set.
4. On 17 December 2008, Milad Mokbel was sentenced in relation to the Posse charges and a blackmail charge to a total effective sentence of 11 years' imprisonment, with a non-parole period of 8 years. He was subsequently sentenced in relation to an unrelated charge involving the Australian Crime Commission and Matchless charges.
5. EF gave evidence that she did not give Milad Mokbel advice.[218]

1. The Chief Commissioner submitted that Milad Mokbel's prospects of successfully relying on EF's conduct turned on establishing the terms of any legal advice that she gave him after his arrest. He accepted that on the face of the documents, EF saw Milad Mokbel after his arrest and an argument was open to him that she provided him with legal advice, after he had been arrested on the Posse charges. Although he pleaded guilty, he might give evidence that EF gave him legal advice after his arrest and rely on that fact to seek to impugn his conviction.[219] However, EF's case was that she did not, and could not, act for Milad Mokbel, as she had a conflict.[220] She had acted for Peters and could not represent Milad Mokbel because Peters had arranged for the recording of telephone intercept material to incriminate Milad Mokbel.[221]
2. EF agreed that Milad Mokbel sought her legal advice between 2005 and 2010. He asked her to speak to the head of the Purana Taskforce to seek a plea agreement on charges against his wife. He did not follow her advice.[222] She wanted to review the police briefs not to have her role as an informer removed, but to make sure there was no reference to her as a lawyer attending the police station on 26 April 2006.[223]
3. The Amici referred to the role that the information that EF provided to police played in Milad Mokbel's arrest.

Conclusion about the assistance that the Director's proposed disclosures might provide to Milad Mokbel

1. The evidence does not establish that EF acted as Milad Mokbel's legal representative after his arrest in April 2006 in respect of his charges. The first disclosure in the Director's letter is not supported by the evidence.
2. However, the evidence may support the conclusion that EF's conduct that led to Peters' arrest made Peters willing to assist police by implicating Milad Mokbel. Milad Mokbel was entitled to know how Peters' evidence against him was procured, at least indirectly, by EF's actions and that she wanted to rid herself of the Mokbel cartel. I refer in that regard to my conclusions in respect of Ahec. That information might have entitled him to seek to have had Peters' evidence excluded if he pleaded not guilty. He pleaded guilty, it may be assumed, without knowledge of EF's dual role.
3. The Director's proposed disclosures might provide Milad Mokbel with substantial assistance in establishing that the proceedings against him involved an abuse of process because of its reliance on Peters' evidence.

1. The agreed facts are set out in the following seven paragraphs.
2. On 16 August 2005, Darren Bednarski was charged with offences relating to the trafficking of MDMA at Craigieburn in August 2005. Bednarski asked EF to act for him. EF had never previously met or acted for Bednarski. EF saw him after he had a formal record of interview with police and had been charged.
3. On 31 August 2005, EF appeared for Bednarski on a bail application that did not proceed. No gaol order had been made and Bednarski did not attend court. The application was therefore withdrawn.
4. In about September 2005, EF formed the view that she would have a conflict of interest in acting for Bednarski in connection with the bail application. EF advised Bednarski that she could not act for him.
5. On 23 April 2006, Bednarski had a conversation with George Peters concerning the pressing of pills. George Peters was wearing a listening device while he had this conversation.
6. On or about 7 June 2006, EF and her handlers at Victoria Police had a conversation about Bednarski.[224]
7. On 13 June 2006, Bednarski was arrested and charged. After police spoke to him, Bednarski agreed to assist police with their investigations.
8. On 20 June 2006, EF represented Bednarski in an application to vary his bail conditions. The application to vary conditions was not opposed.

1. On 16 August 2005, Detective Senior Constable Paul Rowe telephoned EF and informed her that he had arrested 'a mate' of hers, Bednarski. He said that Bednarski was to be charged with drug manufacturing offences and that he wanted to see her. She spoke to Bednarski at the Melbourne Custody Centre and arranged for a solicitor to see him. She did not regard Bednarski as her client on that day, although he had asked her to represent him.[225] However, she accepted that Bednarski was her client on 31 August 2005, when she appeared for him at a bail application, although as mentioned, the hearing could not proceed.[226]
2. On 23 April 2006, Bednarski spoke with Peters concerning the pressing of pills. Peters was wearing a listening device during that conversation.
3. Bednarski was arrested on the basis of his conversation with Peters on 23 April 2006. EF did not know that Peters had recorded the conversation with Bednarski[227], but she knew that Bednarski was carrying out drug transactions [*Redacted].[228]
4. EF gave evidence that Bednarski was [*Redacted] a Crown witness in a number of prosecutions, and made statements that implicated Tony Mokbel.[229]
5. Bednarski agreed to assist Victoria Police with their investigations. Subsequently, Bednarski gave [*Redacted] signed statements to Victoria Police, implicating Tony Mokbel and others in various offences.
6. An ICR of 16 March 2006 stated that EF had arranged to see Bednarski at the Wheat Café in Melbourne the next day and was to give him a telephone.[230] She informed the police that if Bednarski rang Peters the next day after getting the phone, Peters may not go back to 'cooking' but may meet with Bednarski and handover or arrange 3 x kilos of MDMA of powder to be pressed into pills.[231]
7. On 9 May 2007, Bednarski pleaded guilty to one count of trafficking in a large commercial quantity of MDMA between 5 August and 15 August 2005 at Craigieburn and one count of possessing cocaine on 15 August 2005 in Brunswick. He gave an undertaking to give evidence in accordance with the statements made to police against the named individuals or anyone else that the police asked him to give evidence in relation to, and make additional statements if called upon to do so.[232] On that day he was given a sentence of three years' imprisonment, which was wholly suspended. No record of conviction was made.
8. In her letter to Assistant Commissioner Fontana, EF listed Bednarski as number three on the list of persons, whose arrest was assisted by the information she provided to Victoria Police.

1. The Chief Commissioner submitted that there did not appear to be any evidence that EF provided any information to police that was relevant to Bednarski's convictions. The charges on which he was convicted concerned events in August 2005, which preceded EF's registration as an informer.
2. The Director submitted that the police non-disclosure of the impropriety involved in Peters' recruitment might enable Bednarski to claim that he had pleaded guilty without knowledge of relevant facts, and that his conviction ought to be quashed. Bednarski's arrest in June 2006 was due to a recorded conversation with Peters on 23 April 2006, the day after Peters' arrest and while Peters was assisting police.
3. EF's case was that she did not know Bednarski before he was arrested and did not provide police with information about him. She acted for him on a bail application on 31 August 2005, which did not proceed. The Director had not made clear the basis on which her conduct could be said to involve a breach of confidence or of legal professional privilege.

Conclusions about the assistance that the Director's proposed disclosures might provide to Bednarski

1. EF acted for Bednarski on 31 August 2005 and 7 June 2006 while she was an informer. She gave police information about him on 16 March 2006 and 7 June 2006. She represented him again on 20 April 2006. The first proposed disclosure by the Director is therefore supported by evidence.
2. The proposed disclosures might provide substantial assistance to Bednarski in establishing that EF as his barrister may have breached her professional responsibilities and duty of loyalty to him. He might argue that the proceedings had been an abuse of process and he might be able to establish that a miscarriage of justice had occurred.
3. In addition, the evidence suggests that Peters played a role in Bednarski's charging and conviction, by recording his conversation. It is possible that Peters may not have become a police witness if he had received independent advice and had known that EF was acting as an informer.

1. The agreed facts about Khoder are as set out in the following six paragraphs.
2. EF was asked by police handlers about Kamel Khoder. On or about 23 December 2005, EF was asked by her handlers for information about Khoder's criminal activity.
3. On 4 October 2006, Khoder was charged with 15 counts of making a false document and 18 counts of obtaining a financial advantage by deception, relating to conduct that occurred at Melbourne and Coburg between November 2004 and August 2006. He was released on bail.
4. On or about 16 August 2007, Khoder met with EF in order to discuss the charges.
5. Between mid-August and 3 September 2007, EF was involved in negotiations for a plea agreement on behalf of Khoder.
6. On 3 September 2007, EF represented Khoder at a committal hearing. Khoder entered a plea of guilty to the charges on which he was committed.
7. [*Redacted].

1. On 3 July 2008, Khoder pleaded guilty to two counts of making a false document and five counts of obtaining a financial advantage by deception. At that hearing, he gave an undertaking that he would give evidence against others in accordance with a witness statement that he gave to the court.[233] On 16 July 2008, he was sentenced to 2 years and 2 months imprisonment, which was wholly suspended.
2. After Khoder was charged, he discussed his intentions of defending those charges with EF, who in several conversations, passed on to Victoria Police what she learned from him.[234] In one conversation, on 30 October 2016, EF relayed to police that Khoder's defence to the deception charges involved reliance upon the absence of the original documents.[235]
3. EF included Khoder in tenth place in her list of persons whose arrest was assisted by the information she provided to Victoria Police.

1. The Chief Commissioner submitted, that although EF had asserted in her letter seeking compensation that she had assisted the police in relation to Khoder, on the face of the documents, there was no evidence that EF provided any information relevant to Khoder's convictions, which were for making a false document or obtaining a financial advantage by deception.
2. EF's case was that the charges against Khoder did not arise from anything she told police, but were based on documents seized by police. Rather, she told police that Khoder had a plan to get another person to burn down a building in Sydney to destroy evidence.[236] There was no evidence that she provided any information to police about matters that led to the charges on which she represented Khoder.[237] EF's evidence was that Khoder agreed to plead guilty and then changed his mind and as the police told her, said that he had only pleaded guilty because that was what she had suggested that he do.[238]
3. The Director relied on EF's admission that in late 2005 her police handlers asked her for information about Khoder's criminal activities. The Director also submitted that that Khoder, when arrested, clearly contemplated retaining EF as his barrister and discussed the charges with her. EF's involvement in the negotiation of his plea probably involved giving him advice.[239] It was likely that those discussions were subject to an obligation of confidence or legal professional privilege. The Director submitted that Khoder could argue that his conviction was an abuse of process because EF, an agent of the state, who had been tasked with finding information to assist in prosecuting him, acted as his lawyer and persuaded him to plead guilty. Khoder later complained that EF had persuaded him to plead guilty.[240]

Conclusions about the assistance that the Director's proposed disclosures might provide to Khoder

1. EF had been asked by the police to provide information about Khoder. She then acted for him, including negotiating the charges on which he would plead guilty. She provided information to the police about his defence, while acting as his barrister, and therefore breached her professional duties and obligations to him. Arguably, it makes no difference that she did not provide Victoria Police with information about the charges later brought against him, but provided information about other matters. The Director's first proposed disclosure might provide Khoder with substantial assistance in challenging his convictions on the ground that the proceedings against him were an abuse of process because EF did not act solely in his interests and breached her professional responsibilities to him. On that basis he might establish that his conviction involved a substantial miscarriage of justice.

1. The agreed facts in respect of Tony Mokbel are set out in the next paragraph.
2. Between March 2002 and 29 March 2006, EF was retained by Tony Mokbel to appear on his behalf on various occasions, and to give legal advice. These included:

(a) On 26 March 2002, EF appeared for Mokbel on a bail application.

(b) On 12 July 2002, EF appeared for Mokbel on a bail application.

(c) On 4 September 2002, EF appeared for Mokbel on a bail application.

(d) On or about 15 February 2005, EF appeared for Mokbel at a committal hearing.

(e) On 29 September, 6 October and 7 October 2005, EF appeared for Mokbel on an argument in relation to a subpoena in the Supreme Court.

(f) On 7 December 2005, EF appeared for Mokbel on an argument in relation to a subpoena in the Supreme Court.

(g) Between 1 February 2006 and 29 March 2006, EF appeared for Mokbel in a criminal trial. Mokbel was convicted and sentenced to 12 years' imprisonment with a non-parole period of 9 years in absentia.

1. On 20 March 2006, during Tony Mokbel's first trial, in which he was prosecuted by the Commonwealth Director of Public Prosecutions, he failed to appear whilst on bail. In his absence, he was convicted and sentenced to imprisonment for 12 years.[241] He later fled to Greece.
2. EF appeared as junior counsel for Tony Mokbel in connection with that trial a few days after she had been registered as an informer.[242]
3. EF agreed that on 16 September 2005, she spoke to Victoria Police about how they could best remove Mokbel from being able to move freely around Melbourne and provided them with suggestions.[243] On about 8 February 2006, EF told Police that Horty Mokbel had given her a transaction record of a bank account held by Karl Khoder, which Mokbel's defence would use to corroborate a withdrawal from his account of the amount of $40,000 which was in his possession when arrested in October 2005. At that time she was acting for him but on different charges.[244]
4. On or about 3 March 2006, EF told Victoria Police of a general discussion with Mokbel in which he said that he had a possible chance of acquittal due to a clever no case submission.[245] During his trial in 2006, EF passed on to Victoria Police Mokbel's view of the jury and that he did not want it discharged.[246]
5. EF spoke to Mokbel on a number of occasions while he was in gaol in Greece. On or about 12 June 2007, EF told Victoria Police that EF had asked her to read the brief for the Lewis Moran murder.[247] On or about 15 June 2007, she told Mokbel in a telephone conversation: 'Hang up, ring me next week and let me speak to Simon Overland for you'. Mokbel had suggested that she speak to Mr Overland and attempt to arrange a plea. She did not contact Overland.[248]
6. EF provided Victoria Police with information about Mokbel's legal strategy to resist extradition in the second half of 2007. EF disputed that she was acting as his lawyer and said that she told him that she could not act for him.[249] However, she accepted that, at some points, Mokbel would have reasonably expected that he was contacting her as his lawyer.[250]
7. On 15 June 2007, EF when speaking to her handlers said of Mokbel: 'Well, One of the many ironies of all this is I have so many conflicts with the bloke but what does he know? He doesn't know about any of them. They'll stayed hidden'.[251]
8. On or about 11 July 2007, EF told Victoria Police that she had spoken to Tony Mokbel that day for about 20 minutes and had a general chat about his life 'over there and his extradition case'. EF said that Mokbel's statements in that discussion 'would have been more ravings and craziness'.[252]
9. Tony Mokbel was arrested in Greece on 5 June 2007 and extradited to Australia on 18 March 2008. On 18 April 2011, he pleaded guilty to:

(a) One count of trafficking in a large commercial quantity of MDMA at Melbourne between 1 February and 15 August 2005;

(b) One count of urging the commission of an offence by an undercover operative being the importation of a commercial quantity of MDMA into Australia, at Melbourne between 29 June and 13 July 2005;

(c) One count of trafficking in a large commercial quantity of methamphetamine at Melbourne and other places between 5 July 2006 and 5 July 2007.

1. On 30 July 2012, he was sentenced to 30 years' imprisonment, with a non-parole period of 22 years.

1. The Chief Commissioner submitted that there was no evidence that EF provided the police with information relating to Mokbel trafficking or importing drugs in 2005, prior to the time that she was a registered informer, or that she provided information to the police in relation to him trafficking methamphetamine between 5 July 2006 and 5 June 2007. While Mokbel was in Greece, he could have inferred that EF was acting as his lawyer and that he spoke with her on that basis. That might be a sufficient foundation for him to challenge the convictions that followed his extradition, because the extradition process might be compromised. Objectively, the ICRs underlying the Antonios Mokbel Case Study might provide assistance to him. The Court should find that that Case Study contained material, based on the text of ICRs, which have been admitted into evidence subject to a s 136(a) limitation, from which he might derive assistance in challenging the convictions that followed his extradition. Peters gave evidence against the Mokbels, although the content of that evidence was unclear.
2. EF submitted that there was no evidence that she was acting for Tony Mokbel while he was in Greece and that in any event the evidence against him was overwhelming.[253] There was no evidence that she spoke with him about his legal strategy while he was in Greece. There was no evidence that EF had provided the information to police that led to Tony Mokbel being charged and sentenced to imprisonment in June 2012.
3. The Director relied on EF's desire to rid herself of the Mokbel cartel.[254] She withdrew as counsel from the trial in March 2006 when Mokbel fled. She kept secret that when acting as an informer she provided police with information about him. She had a deep-seated desire to see him incarcerated and had become an informer to achieve that end. There is evidence that might lead to the conclusion that she played the joint role of apparent lawyer and secret police informer in connection with his extradition.
4. The Amici submitted that EF had acted for Mokbel in the 2006 trial when at the same time she was informing on him. She had no right to appear for anybody connected with the Mokbel cartel.

Conclusions about the assistance that the Director's proposed disclosures might provide to Tony Mokbel

1. EF's motivation in becoming an informer was to rid herself of the Mokbel cartel and in September 2005, she discussed how Tony Mokbel might be incarcerated. While acting for him in 2005 and 2006, she provided police with information about things that he said about his criminal trial. While he was in gaol in Greece, she told the police of the content of their telephone conversations, including his plans to challenge his extradition. I accept that the Court does not need to determine whether EF was acting as Tony Mokbel's lawyer, as it is sufficient that that was his understanding. The Director's first proposed disclosures might provide Tony Mokbel with substantial assistance in challenging his convictions, at least those in 2006, on the basis that he did not receive a fair trial because he did not have independent counsel. It is unclear whether any of EF's actions could provide a basis for challenging his extradition after all these years. But it is possible to challenge criminal charges and convictions occurring after an illegal extradition.[255]
2. The Director's second proposed disclosure to Tony Mokbel does appear to be supported by evidence, as it appears that Peters made statements to the police about him, at a time when EF was still protecting Peters' interests.

1. There were no agreed facts about EF and Cvetanovski.
2. Police arrested Cvetanovski on 26 April 2006. EF met with him after his arrest at the St Kilda Road Police Complex and spoke to him before he was interviewed by the police. Cvetanovski contested the charges brought against him.
3. On 8 July 2011, Cvetanovski was convicted of one count of trafficking in a large commercial quantity of methamphetamine between 1 June 2005 and 22 April 2006 which was an Operation Posse charge. He was sentenced to 11 years' imprisonment, with a non-parole period of 9 years, to be served as a total effective sentence incorporating other matters.
4. EF did not think she had ever appeared for Cvetanovski, although she had been briefed to provide advice to his wife. She did not give him legal advice.[256] She accepted that she spoke to him after he was arrested and before he gave a record of interview.[257]
5. On the Easter weekend of 2006, Peters remarked to EF how stupid Cvetanovski was because when he was tasked with finding a location for manufacturing drugs, he had found a property next to a primary school. EF conveyed that information to the police.[258] He and Ahec were arrested at the Strathmore laboratory.
6. EF accepted that the information which she gave to police about the Strathmore house where Peters was cooking drugs also enabled Cvetanovski's arrest.[259]
7. The Director himself observed in his review of the trial, which he prosecuted:

[H]ad [Cvetanovski] known the true role of [EF], it is very likely he would have sought to explore the circumstances that led to the provision of the key evidence against him ... [H]e would have been able to exercise an informed choice as to whether to argue the evidence of Peters should have been excluded from the trial.

1. Cvetanovski wrote to Mr Kellam on 27 February 2015 referring to the fact that EF had featured heavily in his drug trial and she had a close association with Peters prior to and during his imprisonment. He wrote that:

I write in relation to IBAC's investigation into Victoria Police's use of informers and the subsequent findings and recommendations made in your report. The findings have been made secret. As a result I cannot confirm whether or not my conviction for drug trafficking miscarried. Nevertheless given what has been published recently in the media I have taken the view that I may be impacted by your findings and consequently my conviction for drug trafficking may be unsafe.

I understand a copy of your report was sent to the Director of Public Prosecutions Mr John Champion SC to determine if the use of police informers adversely affected any prosecution cases. I wish to highlight that Mr Champion prosecuted me in 2011 for drug trafficking. That case involved numerous police informers. One of these informers and key prosecution witness described himself as 'a high level drug manufacturer'. His name was Mr George Peters. If your report included Mr Peters then Mr Champion would not be suitable to investigate any miscarriage of justice due to a conflict of interest in this case.

What I seek from IBAC is confirmation whether Mr Peters and others were part of your inquiry. During the drug trafficking trial Mr Champion was promoted to the position of Acting DPP. Defence counsel made submissions to abort this trial and recommence at a later date. The submission was rejected. The judge was determined to complete the trial even if the administration of justice had been compromised. The trial had commenced and aborted on four previous occasions. On the last occasion, just as the prosecution was to close its case, a prosecution witness gave evidence (voire dire) that supported the defence case. Less than 24 hours later the police got to him and he changed his statement and the evidence he had given the previous day. Although this witness (Mr Michael Grimaldi) had perjured himself the judge refused to recommend laying any charges. At the police's request the then DPP Mr Jeremy Rapke gave the witness an indemnity; again in exchange for untrue evidence.

Mr Peters was allowed to give evidence, despite the fact he was diagnosed as delusional by a well-known and respected forensic psychologist, Dr Jeffery Cummins. Mr Peters admitted in two trials that he was a self-confessed liar and deceiver.

The police took 40 or so statements from Mr Peters during the relevant period. Reading all of his statements together with transcripts of hearings and proceeding where he had given evidence you will find over 100 instances where his version of events contradict previous accounts. It was for this reason that he made so many statements. He was consistently caught out lying to police and this affected other proceedings. The police were so determined to secure convictions they went back and forth to help him get his story right when certain aspects of his evidence didn't match the evidence given by him previously and by others. The evidence was tailor matched and instantly changed as proceedings were on foot. He would invent evidence as he went and the police and the prosecution knew full well what he was up to; if that's not corruption I don't know what is. He and others were coached by police in what to say. Mr Peters would give one version of events in one proceeding against an accused and a different version of events against another accused in a different hearing. His evidence was akin to ordering updated versions of computer software.

Police maintained regular visits with Mr Peters while he was in Barwon Prison since his arrest in April 2006. Surprisingly these visits increased in frequency just before he was to give evidence in court proceedings. A simple check of prison law enforcements registers would confirm this claim. Unfettered access to him enabled Mr Peter's and the police to get their stories right. In fact, evidence was adduced in my trial that the police informant Det. Sgt. Craig Hayes and Mr Peters sat side by side (at the police prison visit) writing and amending statements together. It was also discovered that police gave copies of Mr Peter's statements to other prosecution witnesses involved in the drug trial which assisted them in making corresponding corroborative statements used in the case against me. Prosecution witnesses were offered and had accepted inducements for their cooperation. Property used in the commission of offences were released from restraining orders and returned, penalties and fines were reduced and sentences were cut all in exchange for fabricated evidence.

These facts were uncovered during cross-examination of informer and witnesses at trial and from transcripts of plea hearings and redacted sentencing remarks. Further examples of unlawful conduct has since been identified such as the withholding of exculpatory evidence (telephone call charge records and meta data) intentionally left out of briefs of evidence to stop any challenge to dates, times, etc. in trials that raises doubt about the informers evidence and the prosecution's case.

Another individual that featured heavily in my drug trial was former barrister [EF]. She had a very close association with Mr Peters prior to and during his imprisonment. Mr Peters was cross-examined forcefully as to his association with [EF]. Let me state that Mr Peter's responses raised more questions than answers. About 2 months prior to my arrest in 2006, Mr Peters said to me that if I ever was arrested as a result of being around him, I shouldn't worry as I had done nothing wrong and I should call [EF] for advice. As it happened, on the evening of 25 April 2006 I was arrested and unbeknown to me Mr Peters was also arrested. [EF] was called in to give me advice. Her advice to me was to remain silent and say no comment to all police questions. At a later date, I found out that she was representing Mr Peters earlier that same night and was involved in discussions with police and Mr Peters in another interview room, negotiating Mr Peter's deal with police.

The issues I have raised are the tip of the iceberg of the many unethical practices and procedures undertaken by police and their informers. I have others examples to reveal and when combined carry weight and support the allegations of informer and police corruption; regardless whether it was deliberate or reckless. The dubious events that have occurred in the years since the time of my arrest and conviction are too extensive to detail in this letter.

I'm adamant Victoria Police acted improperly in their dealing with Mr Peters and others. The lengths police went to orchestrate convictions and ensure my demise, in what can only be described as shady, dishonest and corrupt undertakings are mind-blowing. I can articulate these claims and others at a later date [through] lawyers who are assisting me with my appeals. For the time being I am simply trying to determine which informers, lawyers or police involved in my trials are implicated in your investigation and cited in your report. This is no easy task considering I'm in prison and the report is hidden from public scrutiny.

I request you to consider the issues raised regarding police and informers and confirm whether or not I am involved.

1. That letter raises issues about Cvetanovski's understanding that EF had given him legal advice and her association with Peters who had given evidence against him.

1. The Chief Commissioner submitted that EF was not acting for Cvetanovski in April 2006, therefore, any information that she gave police about the Strathmore laboratory was not provided in breach of her duty as his lawyer. However, he conceded that on the face of the documents, EF saw Cvetanovski after he was arrested and spoke to him before he was interviewed by police. Cvetanovski might derive assistance from that fact in seeking to have his conviction set aside. Cvetanovski was implicated by Peters, who gave evidence at his trial. Peters' evidence was independent of information that EF provided to the police. She was not involved in the statements that he made to assist police.
2. EF submitted that she was not briefed to act for and did not act for Cvetanovski, however she accepted that the information that she provided to police about the Strathmore laboratory was instrumental in convicting him.[260]
3. The Director submitted that Peters was the central witness against Cvetanovski and that, if he was aware of EF's role, he might have applied to exclude Peters' evidence against him.

Conclusions about the assistance that the Director's proposed disclosures might provide to Cvetanovski

1. EF spoke to Cvetanovski the day of his arrest and it appears that he claims that she gave him advice. However, there is no evidence that she provided police with information about him and the Director's first proposed disclosure appears not to be supported by the evidence. There is evidence to support the second proposed disclosure as Peters gave evidence against him and EF represented him and provided information about him.
2. Had Cvetanovski known that EF was a police informer, he would have been able to explore how police had obtained the key evidence of Peters against him. He would have been able to exercise an informed choice as to whether to argue that Peters' evidence against him should be excluded. By not being provided with that information he could argue that he was denied a fair trial as required by the criminal law and that the proceedings against him involved an abuse of process.

1. I will next consider the factors that I consider are important in the balancing process to determine if public interest immunity applies to the Director's proposed disclosures.
2. The Director's proposed disclosure is to seven named individuals. Accordingly, as I made clear throughout the hearing, I did not consider it appropriate to, and have not, considered the significance of EF's actions in providing information to police about other persons.[261]
3. There is of course no evidence of what at least five of the seven persons would have done if they had known of EF's dual role. It may be unlikely that Peters, Ahec, Bednarski and Khoder will take any legal steps as a result of the disclosures the Director proposes. However, it appears that Cvetanovski and Tony Mokbel may well have.
4. Six of the seven persons pleaded guilty and in some cases, for instance Tony Mokbel, they were convicted of very serious crimes. There has been no argument suggesting that the seven persons were not guilty of the charges with which they were convicted and no miscarriages of justice were identified by the Director. However, the seven were not notified of these proceedings and I cannot make any assumption about whether they would have been found guilty of the crimes to which they pleaded guilty, or in the case of Cvetanovski, who was convicted after pleading not guilty, if they had been able to raise issues arising from EF's dual roles.
5. Peters, Bednarski and Khoder provided prosecution evidence in connection with other proceedings.
6. The public interest immunity issue concerns unusual facts. Key institutions of the State differ in their opinion as what actions should be taken. EF's conduct appears to be unprecedented and raises grave issues about its effect on the integrity of the criminal justice system. No party could refer to a similar case.
7. The Charter rights referred to previously and, to which I have had regard, overlap with the conflicting public interests that must be balanced, in particular the right to life and the right to a fair hearing.
8. EF and her children face the risk of death as a result of the proposed disclosures. A purpose of the criminal law is to protect human life, not least that of innocent children. In most circumstances, the compelling police evidence of the risks confronting EF and her children would be decisive. Disclosure of information about her role will also breach the assurances of confidentiality that police officers acting on behalf of the State gave to her. There is also the likely 'chilling' effect of the proposed disclosures on potential informers.
9. 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 Peters, Ahec, Tony and Milad Mokbel, Bednarski, Khoder or Cvetanovski, 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?
10. The only answer to that question is that a fundamental feature of our community is that all persons, whatever crime they have committed, are entitled to independent legal advice and counsel and an opportunity for a fair trial if they contest the charges or to be properly represented if they plead guilty. There is a strong public interest in ensuring that a lawyer's breach of duty and obligations do not undermine the fairness of a trial, or the negotiation of a plea of guilty. The knowledge of EF's role might have assisted the seven persons in a criminal trial if they had pleaded not guilty or in a plea.
11. The Court, having found that some of the proposed disclosures are supported by evidence and might provide substantial assistance to the seven named persons in challenging their convictions, cannot deny the Director the right to make those disclosures.
12. I do not pretend that this conclusion answers the question that I have suggested a reasonable person might ask, but I consider that the public interests in our nation's rule of law and system of criminal justice requires this outcome. The public interests to be balanced in determining whether public interest immunity applies lead to this conclusion.
13. The Court however understands, as the Chief Commissioner's counsel indicated would occur, that Victoria Police will endeavour to provide protection to EF and her children once the disclosures that I consider should be permitted occur.

1. I therefore do not consider that the proposed disclosures by the Director about the dual roles that EF played in connection with the seven named persons, insofar as the particulars of the proposed disclosures are supported by the evidence, are subject to public interest immunity.
2. I will hear the parties, if they wish, about the effect of my conclusion that some of the particulars of the Director's proposed disclosures are not supported by the evidence. This is the case in respect of Ahec with both proposed disclosures and Milad Mokbel and Cvetanovski in respect of the first proposed disclosure.

[1] First affidavit of John Champion SC, 2 August 2016, ('First Champion affidavit'), exhibit JRC-17, letter from DPP to CCP dated 26 May 2016.

[2] WV v Crown Prosecution Service [2011] EWHC 2480 (Admin).

[3] Mr Bednarski's solicitor had forgotten to request a gaol order, he was therefore not in attendance and the hearing was adjourned.

[4] Transcript of Proceedings, AB & EF v CD (Supreme Court of Victoria S CI 2016 03143, Ginnane J, 22-25 November, 1, 15 December 2016, 20-22, 27-28 February, 1-3, 16-17, 20-21 March 2017) 303 (28 February 2017) ('T').

[23] R v Mokbel (Ruling No 1) [2005] VSC 410, [14]-[15].

[24] R v Mokbel (Ruling No. 1) [2005] VSC 410, [68] (Gillard J) quoting D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171, 218.

[25] Findings contained in Kellam Report, 2-3 and 11 [2].

[26] Tony Mokbel was prosecuted by both the OPP and CDPP.

[27] First Champion affidavit, exhibit JRC-2, Case Review by Mr Neil Comrie AO, APM dated 30 July 2012, 16 '(Comrie Review').

[30] Comrie Review, 23-24 (citations omitted).

[31] T 81 and T 101 (22 November 2016).

[32] Comrie Review, 124-5 as extracted in AB and EF v CD; and EF v CD [2017] VSC 43, [91].

[33] AB and EF v CD; and EF v CD [2017] VSC 43 [104].

[34] See ruling AB and EF v CD [2017] VSC 43.

[36] First Champion affidavit, 3 [10].

[37] See R v Farquharson [2009] VSCA 307; (2009) 26 VR 410 [213]-[214].

[38] Director of Public Prosecutions Victoria, Director's Policy: Disclosure (Last updated: 24 November 2014) contained in First Champion affidavit, exhibit JRC-9, [5]-[6].

[39] Director of Public Prosecutions Victoria, Director's Policy: Disclosure (Last updated: 24 November 2014), [16]. First Champion affidavit, exhibit JRC-9.

[40] R (Nunn) v Chief Constable of Suffolk Police [2014] UKSC 37; [2015] AC 225, 246 [35].

[43] First Champion affidavit, exhibit JRC-13.

[44] First Champion affidavit, exhibit, JRC-16.

[46] First Champion affidavit, exhibit JRC-19.

[47] First Champion affidavit, exhibit JRC-21.

[48] T 5 (10 August 2016); see also T 1 (8 September 2016).

[49] See the reasons for orders made on 2 November 2016 at T 1-2 (8 September 2016).

[50] Matsoukatidou v Yarra Ranges Council [2017] VSC 61, [75] and [78] (Bell J).

[51] Charter of Human Rights and Responsibilities Act 2006 s 24.

[52] Regina v H & Ors [2004] UKHL 3; [2004] 2 AC 134, 147 [14] ('R v H').

[53] R v H [2004] UKHL 3; [2004] 2 AC 134, 147 [14]; See also Rowe and Davis v United Kingdom (2000) 30 EHRR 1; [2000] ECHR 91; and McKeown v United Kingdom (2012) 54 EHRR 7; [2011] ECHR 22.

[54] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 25 (Gibbs ACJ).

[55] R v Solomon [2005] SASC 265, [116] (Doyle CJ; with Duggan and Sulan JJ agreeing).

[56] [1994] UKHL 8; [1995] 1 AC 274.

[57] R v Chief Constable of the West Midlands Police, Ex parte Wiley [1994] UKHL 8; [1995] 1 AC 274, 296-8; see also Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 59-60; and Alister v R [1984] HCA 85; (1984) 154 CLR 404, 457.

[58] R v Ward [1993] 1 WLR 617, 680-1.

[61] R v Davis [1993] 1 WLR 613.

[62] [2011] EWHC 2480 (Admin).

[65] [1994] 1WLR 746; [1994] 2 All ER 478.

[66] R v Keane [1994] 2 All ER 478, 484.

[67] Relying on D v NSPCC [1977] UKHL 1; [1978] AC 171, 218 (Lord Diplock).

[68] See also s 119 that extends the privilege to communications in connection with litigation.

[69] Baker v Campbell (1983)153 CLR 52, 128-129 (Dawson J).

[70] [1986] HCA 80; (1986) 161 CLR 475, 490.

[71] [2001] UKHL 26; [2001] 2 AC 532, 537 applied in R v Robinson [2002] EWCA CRIM 2489.

[72] R v Robinson [2002] EWCA CRIM 2489 at [61].

[73] Stephen Odgers SC, Uniform Evidence Law (Lawbook Co, 12th ed, 2016) 931 [EA. 118.120].

[75] [2004] FCAFC 337; (2004) 142 FCR 185.

[76] Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185, 214 [147]; see also Stephen Odgers SC, Uniform Evidence Law (Lawbook Co, 12th ed, 2016) 938-942.

[77] See discussion at T 169-171 (27 February 2017).

[78] ATH Transport v JAS (International) [2002] NSWSC 956, [12] (Barrett J).

[79] [1898] 1 QB 759.

[80] T 395-414 (25 November 2016); see also Comm. of Aust. Federal Police v Propend Finance Pty Ltd (1997). 188 CLR 501, 565 (Gummow J).

[81] Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; (2001) 4 VR 501 ('Spincode').

[82] Spincode [2001] VSCA 248; (2001) 4 VR 501, 522 [53] (citations omitted).

[83] Bristol and West Building Society v Mothew (t/a Stapley & Co) [1996] EWCA Civ 533; [1996] 4 All ER 698, 711-712 (Millett LJ).

[84] Gibson Motorsport Merchandise Pty Ltd v Forbes [2006] FCAFC 44, [12] (Finn J) summing up the Australian authorities; see also Breen v Williams (1996) 186 CLR 71, 113; and Dr P D Finn, Fiduciary Obligations (Lawbook Co, 1977), ch 21.

[85] Dr P D Finn, Fiduciary Obligations (Lawbook Co, 1977) 201 [467].

[88] G D Dal Pont, Lawyers' Professional Responsibility (Lawbook Co, 6th ed, 2017) 344, [10.15].

[89] Victorian Bar Rules (effective 1 August 2005) r 62.

[90] Victorian Bar Rules (effective 1 August 2005) r 62.

[91] T 131 (21 February 2017); 355 (1 March 2017).

[92] [1987] FCA 266; (1987) 14 FCR 434.

[93] C_orrs Pavey Whiting & Byrne v Collector of Customs (Vic)_ [1987] FCA 266; (1987) 14 FCR 434, 456 (Gummow J).

[95] Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186, 199-200.

[96] [1978] HCA 43; (1978) 142 CLR 1.

[97] [1984] HCA 85; (1983) 154 CLR 404 and cf Royal Womens' Hospital v Medical Practitioners Board [2006] VSCA 85; (2006) 15 VR 22.

[98] [1995] VicRp 5; [1995] 1 VR 84 at 89-90 ('Jarvie'); Southwell and Teague JJ agreeing and R v Roberts [2004] VSCA 1; (2004) 9 VR 295 (Batt JA).

[99] [1995] VicRp 5; [1995] 1 VR 84 at 90.

[101] (1994) 76 A Crim R 81.

[102] [1995] VicRp 5; [1995] 1 VR 84 at [89] ('Jarvie').

[103] [2012] NSWCCA 14 at [27] ('Derbas').

[104] Derbas v R [2012] NSWCCA 14

[105] Cain v Glass (No 2) (1985) 3 NSWLR 230.

[106] (1985) 3 NSWLR 230 at [241].

[108] Derbas v R [2012] NSWCCA 14[35]-[36].

[109] [1995] VicRp 5; [1995] 1 VR 84.

[110] [2012] NSWCCA 14.

[113] [1995] VicRp 5; [1995] 1 VR 84.

[114] [2014] HCA 20; (2014) 253 CLR 455.

[115] Ibid 470 [43] (emphasis added).

[117] [2000] QCA 194; [2001] 2 Qd R 214, 215 [3]-[6] (de Jersey CJ).

[120] Warren v Attorney-General for Jersey [2011] UKPC 10; [2012] 1 AC 22, 32 [26] (Lord Dyson); R v Maxwell [2010] UKSC 48; [2011] WLR 1837 at [13] (Lord Dyson).

[121] [2011] HCA 50; (2011) 245 CLR 456.

[122] Ibid 478 [57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (citations omitted).

[123] [2015] NZSC 189.

[124] Ibid [40] (William Young, Glazebrook, Arnold and Blanchard JJ). See also United States of America v Marshank 777 F. Supp 1507 (N.D. Cal. 1991) where the Government's collaboration with the defendant's attorney during the investigation and prosecution of the defendant violated the defendant's Fifth and Sixth Amendment Rights, requiring dismissal of an indictment.

[125] [2016] NSWCCA 67.

[126] JB v R [2015] NSWCC 182.

[127] [2016] NSWCCA 67.

[128] [2005] EWCA Crim 1089; [2006] QB 60.

[130] [2011] UKPC 10; [2012] 1 AC 22 at [35]-[36]. Grant was also not followed in Wilson v The Queen [2015] NZSC 189 [74]-[80].

[133] [2014] HCA 20; (2014) 253 CLR 455.

[134] [2011] HCA 50; (2011) 245 CLR 456.

[135] Kev v The Queen [2015] VSCA 26 [75].

[136] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614, 617 [3] (Gleeson CJ).

[138] CD's closing submissions 15, [52].

[139] [1977] UKHL 1; [1977] 1 All ER 589, 594.

[140] [2012] EWCA Civ 197; [2013] QB 579 at [180]- [181] (citations omitted).

[141] Alister v R [1984] HCA 85; (1984) 154 CLR 404, 456.

[144] First Champion affidavit, exhibit JRC-3 [215].

[145] Confidential affidavit of Inspector Brooke Hall, filed 10 June 2016.

[146] Confidential affidavit of Assistant Commissioner Stephen Fontana filed 10 June 2016, 41 [134] and see generally [122]-[134].

[147] Confidential affidavit of Detective Superintendent Peter Brigham, 5 [20].

[152] [2014] VSCA 254.

[157] See information contained in CD's closing submissions about 'public domain'. CD opening submissions, 35 [143(a)].

[158] CD opening submissions, 25 [143(b)].

[161] Confidential affidavit of Inspector Brooke Hall of 8 June 2016.

[162] [2014] EWHC 2184.

[163] [2014] EWHC 2184 [44].

[164] Cain v Glass (No 2) (1985) 3 NSWLR 230, 253-4 (McHugh JA).

[165] [1995] VicRp 5; [1995] 1 VR 84.

[167] First Champion affidavit, paras 43, 44 and 46.

[168] Evidence Act 2008 s 191.

[173] See exhibit NFI-4 Tab 9, T 242-3, 248 (27 February 2017)

[175] T 244 (27 February 2017); Swain affidavit, tab N.

[177] T 251 (27 February 2017); exhibit 7.

[182] T 254 (27 February 2017); T879 (17 March 2017).

[201] Put to EF by the Amici, T 463 (2 March 2017).

[204] T 312 (27 February 2017) [3] and [31].

[208] R v Reed [2003] VSCA 95 at [2], R v Mokbel ('Change of Pleas') [2012] VSC 86; (2012) 35 VR 156 [261]-[264].

[209] KCH v R [2001] NSWCCA 273; (2001) 124 A Crim R 233.

[211] T 326 (27 February 2017); T881 (17 March 2017).

[215] Second Champion affidavit [23]-[35].

[216] T 322 and T 326 (27 February 2017); T881 (17 March 2017).

[217] T 239 (28 February 2017), T336 (27 February 2017).

[224] Facts admitted by EF exhibit DPP-19 [21].

[230] T 396 (1 March 2017), Swain Affidavit (exhibit AB-A), Annexure N: ICR 419 (16 March 2006).

[231] T 396 (1 March 2017), Swain Affidavit (exhibit AB-A), Annexure N: ICR 419 (16 March 2006) (Item 4).

[232] Affidavit of Mr Champion, dated 2 August 2016 at 24 [141].

[235] CD submissions 145; exhibit CD-10, Meeting of 30 October 2006, at pp 6-7.

[240] Evidence of Khoder's complaint: T 317 (28 February 2017). Evidence that EF was heavily involved in Khoder's plea negotiations: exhibit CD-3, Facts Admitted by EF at [26]-[27], [29]; Second Champion Affidavit, exhibits JRC-77, JRC-78, JRC-79, JRC-80, JRC-81, JRC-82, JRC-83 and JRC-84.

[243] T 298 (28 February 2017), 433 (1 March 2017).

[251] Exhibit AC-9; T 450 (2 March 2017).

[255] See for instance Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456.