Secret X Files

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This week Sky News aired the explosive documentary “Lawyer X: The Untold Story”, recounting the sorry tale of the now-notorious double-dealings of former Melbourne Barrister, Nicola Gobbo.

Gobbo, who over a lengthy period represented a string of high-profile criminal underworld figures, was earlier this year sensationally exposed as a long-term secret police informant. According to the documentary, this included giving police information about her very own clients. Her actions in so doing, which reportedly involved Gobbo routinely and systematically breaching legal professional privilege and her solemn duty of client confidentiality were, hopefully and as far as we know, absolutely unprecedented. The ensuing scandal has left the legal profession gobsmacked, not only in Victoria, but throughout the Western world, sparking the current Royal Commission into the Management of Police Informants, now ongoing in Melbourne.

While the astounded Victorian public awaits, with bated breath, the Commission’s ultimate findings, the controversy should already serve as a timely wake-up call to all other jurisdictions, including Queensland, that our laws around secret informants need to be very carefully managed.

I recently appeared in a Magistrates Court on behalf of a young married man whose home had been forcibly entered and ransacked by police. The asserted justification for the otherwise unauthorised entry was that the police had a “reasonable suspicion” there were drugs in the house. When I asked, in cross examining the officer leading the charge, how he had formed that reasonable suspicion, the response was simple and final; he had received information from a confidential informant. When I asked what that information was, I was rightly reminded by the learned magistrate that the question was strictly off-limits.

Why? Because in Queensland, as in at least most other states of Australia, police cannot be asked and, if asked, cannot be forced to answer, any question which may be even remotely capable of revealing the existence or identity of a police informant. In the legal world, once the word “informant” is uttered, the shutters immediately come down, and thereafter an impenetrable barrier of silence prevents any further enquiry.

That means – to borrow a currently topical example – if a policeman was accused of unlawfully accessing a journalist’s metadata, and they claimed the search warrant was based on confidential information received from an informant, there could be no further scrutiny of that explanation. The danger in that scenario should be immediately apparent.

Normally, in criminal justice proceedings and processes, all relevant material must be disclosed to the affected parties, so they can raise effective challenge if desired. However, when it comes to informants, and what they may or may not have said, virtually everything is sealed shut, tight as a drum.

So why is there danger in that? Because, as the Lawyer X controversy has shown, in the criminal justice system when things are done behind closed doors, they can go dangerously awry.

Firstly, where police are acting on undisclosed information from unidentified informants whose every detail is kept totally secret, the credibility of that information remains completely untested, unknown and unchallenged. Whether the information is right or wrong, no one can know. Secondly, informants are almost invariably motivated by their own purely selfish interests. Nicola Gobbo has claimed she acted through pure altruism, but questions are now arising about her alleged involvement in a major drug bust back in her student days, and claims that charges against her fortuitously evaporated around the time she became an informant. While ever informants remain a no-go zone, lawyers and courts can have no idea under what circumstances they provided information, what they stood to lose or gain, and therefore what motive they may have to lie. Finally, and importantly, there is no accountability on the part of police who raise the informant embargo to justify their own behaviour. They are automatically provided unconditional protection by the law. So whether information did in fact come from an informant, and whether answering questions about such information would or would not compromise the informant, no one is any the wiser. Only the police really know.

In the law, transparency is everything. The right to know, to question, and to challenge, is at the very heart of our criminal justice system. As has been demonstrated in the Lawyer X controversy, when that right is denied – when, instead, things are done behind closed doors, out of reach, and beyond all scrutiny – justice itself is seriously put at risk.

Jonathan Nyst

Criminal Lawyer, Queensland

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