The recentHigh Court decision relating to the Criminal Barrister turned informant known only as “EF” may have unexpected familylaw consequences for the unnamed female barrister.
During thecourse of her representation of many of Melbourne’s underworld figuresincluding Tony Mokbel, EF was recruited by Victoria Police to act as a policeinformant. Information EF provided to police contributed to the successfulprosecution 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 wordsof the Court “EF’s actions in purportingto act as counsel for the Convicted Persons while covertly informing againstthem were fundamental and appalling breaches of EF’s obligations as counsel toher client and of EF’s duties to the court.” The consequences to the stateof these breaches being that the prosecution of Tony Mokbel and others werecorrupted and may lead to their convictions being overturned.
EF, throughher Appeal to the High Court, sought to protect her anonymity as a policeinformer.
In a processthat involved weighing up competing considerations of police informer anonymityas protected by public interest immunity and the greater public interest indisclosure, the court held that the public interest was best served by thedisclosure as it was necessary in order to maintain the integrity of thecriminal justice system. This was despite the Court noting a Victorian Policeassessment that if the information was disclosed, the risk of death to EF wouldbe “almost certain”.
In a casethat has captured the interest of the general population given the implicationsit may have on the integrity of possibly hundreds of criminal convictions, a brief two line sentence at the conclusionof the High Court judgement forshadows a potentially more personal consequenceof the informant’s actions.
The HighCourt raised the possibility that by refusing to agree to enter into a witnessprotection program offered by the police to EF, the informant may subject herchildren to a protection application by the Victorian Department of Health andHuman Services under section 240 of the Children, Youth and Services Act 2005 (VIC)
To date, EFhas refused to enter into a witness protection program offered due to hermistrust of the police, preferring to accept the personal risk to her safetyrather than involve her family in the restrictions and hardships of the witnessprotection program.
However, EFmay 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 tosimilar risks, the State is empowered to take action to protect them from harm.”
Withsuch a direction form the High Court, it is highly likely that if EF continuesto refuse to enter a witness protection program, the Department will issue aProtection Application by Emergency Care under section 162 (1) (c) and (e),stating that her children are likely to suffer significant harm as a result ofphysical injury and emotional or psychological harm, due to a failure on herpart to protect them from such. This Application may result in the immediateremoval of her children from her care.
Sucha removal typically requires that consideration first be given to the children beingplaced with an appropriate family member or other appropriate personsignificant to the children, before any other placement option isconsidered. Given the circumstances of the Application in this matter however,it is likely that the Department would be required to place the children in anundisclosed foster care placement for their protection.
Whilst EF maybe of the view that the decision whether or not to enter into a witnessprotection program is hers alone, the threat of a Protection Application madeby the Department of Health and Human Services may prove extremely persuasive.
By KateWraith-Bell & Alistair Noakes