The recent High Court decision relating to the Criminal Barrister turned informant known only as “EF” may have unexpected family law consequences for the unnamed female barrister.
During the course of her representation of many of Melbourne’s underworld figures including Tony Mokbel, EF was recruited by Victoria Police to act as a police informant. Information EF provided to police contributed to the successful prosecution of several of her former clients.
In early 2015, the Victorian Independent Board-based Anti-Corruption Commission (IBAC) prepared a report critical of the way in which Victoria Police had utilised EF as a police informer in obtaining the convictions of Tony Mokbel and others.
In the words of the Court “EF’s actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF’s obligations as counsel to her client and of EF’s duties to the court.” The consequences to the state of these breaches being that the prosecution of Tony Mokbel and others were corrupted and may lead to their convictions being overturned.
EF, through her Appeal to the High Court, sought to protect her anonymity as a police informer.
In a process that involved weighing up competing considerations of police informer anonymity as protected by public interest immunity and the greater public interest in disclosure, the court held that the public interest was best served by the disclosure as it was necessary in order to maintain the integrity of the criminal justice system. This was despite the Court noting a Victorian Police assessment that if the information was disclosed, the risk of death to EF would be “almost certain”.
In a case that has captured the interest of the general population given the implications it may have on the integrity of possibly hundreds of criminal convictions, a brief two line sentence at the conclusion of the High Court judgement forshadows a potentially more personal consequence of the informant’s actions.
The High Court raised the possibility that by refusing to agree to enter into a witness protection program offered by the police to EF, the informant may subject her children to a protection application by the Victorian Department of Health and Human Services under section 240 of the Children, Youth and Services Act 2005 (VIC)
To date, EF has refused to enter into a witness protection program offered due to her mistrust of the police, preferring to accept the personal risk to her safety rather than involve her family in the restrictions and hardships of the witness protection program.
However, EF may well be swayed by the pointed comments at the conclusion of the Court’s decision in which their Honours surmised that “If she chooses to expose her children to similar risks, the State is empowered to take action to protect them from harm.”
With such a direction form the High Court, it is highly likely that if EF continues to refuse to enter a witness protection program, the Department will issue a Protection Application by Emergency Care under section 162 (1) (c) and (e), stating that her children are likely to suffer significant harm as a result of physical injury and emotional or psychological harm, due to a failure on her part to protect them from such. This Application may result in the immediate removal of her children from her care.
Such a removal typically requires that consideration first be given to the children being placed with an appropriate family member or other appropriate person significant to the children, before any other placement option is considered. Given the circumstances of the Application in this matter however, it is likely that the Department would be required to place the children in an undisclosed foster care placement for their protection.
Whilst EF may be of the view that the decision whether or not to enter into a witness protection program is hers alone, the threat of a Protection Application made by the Department of Health and Human Services may prove extremely persuasive.
By Kate Wraith-Bell & Alistair Noakes