9th December 2018

The sanctity of a human Life versus the sanctity of the Criminal Justice system, who wins?


When is it appropriate in our civilised society when the State knowingly sanctions actions, which could jeopardise a life?


For the first time we are torn between civilised values which form the foundation of our society and respect for the law (State).


These two values clash dramatically in the recent decisions handed down by the High Court of Australia in the Lawyer X Case.


The Judgement turned up some interesting findings that have left us very conflicted and we all should be concerned.


We believe in the sanctity of life but the courts have ruled that the integrity of the Justice system supersedes the anonymity of Lawyer X.


“The public interest in preserving EF’s anonymity must be subordinated to the integrity of the criminal justice system.


The Court acknowledged and clearly understood the grave risk to this informer.


“To say so is not to overlook that, on the evidence before the courts below and now before this Court, EF and her children will be at grave risk of harm unless EF agrees to enter into the witness protection program. Nor is it to ignore that, thus far, EF has declined to do so, taking the view that Victoria Police cannot be trusted to maintain confidentiality and apparently that she would prefer to wear the risk than subject herself and her children to the limitations and burdens that witness protection would surely entail.”


We do not accept what Lawyer X or her Police managers did and agree totally with the High Court that;


“It is further not without significance that Victoria Police may bear a large measure of responsibility for putting EF in the position in which she now finds herself by encouraging her to inform against her clients as she did. “


The lines were clearly crossed and the role of a Royal Commission is to identify who did what and when.


Where there is a problem, no matter what Lawyer X did, her/a life is more important than the Criminal Justice system by any reasonable measure. That is why we have a Criminal Justice System supposedly designed to separate us from lawlessness.

At this point in time we are unaware of Lawyer X being charged with a criminal offence. In that context the High Court’s Judgement defies the tenet of our Justice System, ‘Innocent until proven guilty’, albeit that there is a possibility of charges at some stage.


At this time, this treatment is imposed on an innocent woman.


This decision will have a far-reaching negative impact on Policing in Australia both at a State and Federal level. Police informers can no longer expect absolute anonymity and now any court can find that the public interest in preserving an informant’s anonymity must be subordinated to the integrity of the criminal justice system. How that will now be interpreted by the subordinate courts will be interesting.


There is also the impact on National Security and the anonymity of informers in terrorism or other threats to our national interest.


Lawyer X provided a completely rational and reasonable excuse for not entering the witness Protection Program in Victoria. The experience of this informer would lead any reasonable person to conclude confidentiality within Victoria Police, essential for the program, has defects.


We are absolutely floored by the next part of the findings (remember these are not suggestions but findings at law).


“If she chooses to expose her children to similar risks, the State is empowered to take action to protect them from harm.”


That is saying that her Children can be taken from her by the State if she does not enter the Victorian Witness Protection Program – courts engaging in behaviours that would absolutely stun the average citizen.


Do what we say or you lose your children?


This ungodly mess surrounding Lawyer X was perpetrated by people who no doubt will be ultimately held to account. To sort all this out and avoid the criminals for whom this scheme was designed to control, benefitting from the misdeeds of others, will need a creative solution.



If the High Court is signalling that recruiting lawyers as informants is no longer on, then the Court may well need to say so in more definitive terms.  Otherwise, police are likely to simply look for new ways around the current situation.  Perhaps it is time for the Parliament to legislate in order to clarify matters.


As it stands, the law has become no clearer, the people Victoria have become no safer and they are now likely to be asked to foot the bill for what is likely to be a rush by serious criminals to exploit this unfortunate situation.


The consequences of this matter could well be horrific and impact on the safety of Victorians swept up in a new maelstrom of violence and a reticence for people to provide essential information to the Police will cause lawlessness to flourish.


All caused by the Criminal Justice system who are supposed to protect us not their values.


This matter must now be settled by the political class, the only authority with the capacity to resolve this issue with Legislation.


The confidence in the Justice System is of paramount importance but does it supersede a life?