LAWYER X
To be honest, i’m outraged. I’m outraged as again I’ve discovered that there is a very fine line between entrapment and illegality vis-vis undercover/covert police work. It is yet another time where authorities have let the Nation down. The High Court even described police’s use of the lawyer as “reprehensible conduct” which involved sanctioning “atrocious breaches of the sworn duty of every police officer”.
Charismatic, charming and in control, a lawyer known by the pseudonym “Lawyer X” or “Informer 3838” convinced some of Australia’s most dangerous men to tell her everything. Little did they know the lawyer was in fact an informant for the police.
She persuaded them, even sometimes slept with them and confided in them. It is reported that But at the same time only she can protect them.
What is more atrocious, is that former homicide squad detective Ron Iddles said on Tuesday that up to 15 senior police officers turned a “blind eye” to the consequences of using the barrister as an informant and he had raised concerns with a superintendent at the time.
This is unprecedented. It ended Victoria’s deadliest decade and led to the convictions of hundreds of underworld figures including Tony Mokbel, Rob Karam and Carl Williams, to just name a few.
I shortly discuss the laws governing undercover police informants and officers to operate covertly, and I put their modus operandi under the microscope so that we can all decide for ourselves if their purposes and outcomes justify their actions. The article is especially pertinent in light of the fact that recently in Victoria a prominent female Solicitor/Criminal Lawyer (between 2005 and 2009) has been revealed to have been informing on her clients to the police.
While crown, Court and police protection laws mean the Victorian woman can only be reported as “Lawyer X or informant 3838” this article expands on Australia’s highest Court labeling her and her handlers (the Victorian police services) actions as “appalling”.
THE EXPANSION OF A POLICE STATE
Before I go onto discuss this specific case and why it’s worse than say just a normal covert informant, I just remind the readers that I’ve written in previous articles a view that police powers are ever-increasing in Australian Society. This includes changes of NSW Bail laws, the introduction of Strike Force Raptor to crack down on those not who have committed a crime but may do so and other increasing police powers. To read all of our blogs, please click here.
A PROTECTIONIST REGIME
The leading Australian case examining the legality of offence facilitation for law enforcement purposes is Ridgeway v The Queen (1995) 184 CLR 19.
In this case, the High Court considered the legality of a controlled delivery of narcotics into Australia from overseas. The accused was charged with possession of an illegal import, the narcotic (heroin) having been illegally imported by members of the Australian Federal Police (AFP) and their informer.
Although viewed as a case dealing with entrapment, Ridgeway focused narrowly on the illegality of police conduct (namely the illegal importation of a prohibited drug into Australia) and whether that ostensibly criminal activity justified either the exclusion of evidence or a stay of proceedings as an abuse of process.
The majority (Mason CJ, Deane and Dawson JJ) held that the appropriate remedy in this case was evidential, rather than procedural. In this case, the existing common law discretion to exclude evidence obtained by unlawful or improper means on public policy grounds could be extended by analogy to exclude evidence of a person’s guilt, or an element of an offence, where the actual commission was procured by unlawful conduct on the part of law enforcement officials. The majority question for the trial judge facing these facts was framed in terms of public policy:
“The critical question was whether, in all the circumstances of the case, the considerations of public policy favouring exclusion of the evidence of the appellant’s offence, namely, the public interest in maintaining the integrity of the courts and of ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement, outweighed the obvious public interest in the conviction and punishment of the appellant of and for the crime against … of which he was guilty”
The police powers to carry out undercover operations in NSW are contained in the Law Enforcement (Controlled Operations) Act 1997 (The ACT)(NSW).
Essentially if it is a covert operation and a police officer is involved, that officer is usually trained in the art of lawful police deception and how to work undercover work and usually before being deployed, they are given an “assumed identity”. Moreover, their acts are not regulated so long as they do not do anything that is illegal according to the terms of the operation. In terms of informants, they too are groomed and most likely operate with a minder from the police who look after the interests of the controlled operation and most likely place those interests above that of the informers. Suffice to say the scope given to the undercover police officers (or informants if they are not police officers) is quite large.
Moreover, there is no meaningful regulation as the police are responsible for the oversight of their own covert operations. This means where laws are broken by operatives there oftentimes is no liability – see Section 16 of the Act.
By virtue of the above references, it begs the question, what happens if the person whom you trust and employ to defend you is in fact the person who snitching on you?
COVERT POLICING AND HOW DOES IT OPERATE?
What i’ve now discovered through speaking with clients and my own research is police and intelligence authorities now almost always attend either university or police college wherein they are taught amongst other tools of the trade how to deploy effective covert forms of policing at a drop of the hat.
While these forms of policing are easily accessible online, they might shock you as this kind of policing is much more pro-active. That is to say now-a-days there is a new kind of policing. For example, as found in the curriculum/syllabuses of the degrees and subjects new police recruits undertake new kinds of police methodologies designed to prevent crime rather than apprehend. For example in Australia they include (but are not limited to);
- Clandestine profiling/screening/re-screening (identification of suspects based on risks to community);
- the use of honey traps (usually female);
- Attempted and actual Cultural humiliations (designed to make a suspect become afraid either of crimes already done or possible crimes in the future);
- Psychological surveillance with or without arrest (designed to make a suspect feel like they are like a cat in a corner);
- Quasi detention even inside the community;
- The use of covert operatives and informers;
- Manipulating phobias or phobia tortures;
- Confusion and disorientation tactics;
- Fear up tactics and threats (including implicit and explicit death threats);
- Sensory deprivations;
- Manipulations of environment;
- Trickery, Good cop bad cop and other integration methods;
- The False Flag technique;
- Interception of communication and other devises (data retention); and
- Restriction on allowing the suspect being able to report and seek a remedy for any of the above methodologies, thereby creating a form of automatism)
WHY IS LAWYER X’s ACTIONS SO APPALLING?
Essentially as Lawyers we have numerous duties which we must abide by when practicing as lawyers. Not abiding by those duties might not equate to a criminal act, however it could lead to being reprimanded and in some instances even removed from the roll of solicitors. In some instances, criminal charges can follow.
Essentially Lawyer X has severely breached fundamental rules with all the clients she informed police on. This is because the law creates several legal duties for the person in whom the trust has been placed (the lawyer) vis-a-vis the client. In particular generally, the lawyer must act in the best interests of the client which is considered a paramount rule after their duty to the Court.
In relation to their clients, lawyers must:
- Maintain client’s confidences;
- Avoid any conflict of interests;
- Avoid any compromise to their integrity and professional independence;
- Be honest;
- be independent (free from personal bias); and
- Act in a client’s best interests;
Lawyer X has breached all of the above duties.
CONCLUSION
Time will tell what happens for those members of the Victoria underworld gang land members. What we know is some have already lodged an appeal for their sentence. Ultimately, the balance the appellate Court would need to consider is the purpose of punishment for an accused and whether an injustice has occurred. This might be a very difficult assessment having regard to reprehensible way in which their cases were in fact run by authorities.