26th February 2019
Ever since the formation of professional police forces, police have relied upon information gained from many sources. One such source is from informants, paid or otherwise. In Common Law it was once an offence of ‘Misprision of Felony’ to fail to report a felony if one knew the felony had been committed and by whom. The basis of this offence was obviously that every citizen has a civic duty to preserve the law. That this duty applies even to lawyers except where lawyer client privilege exists is self-evident.
The offence of ‘misprision of felony’ was abolished in Victoria. With some exceptions, when it was active it consisted of failing to report knowledge of a felony to the appropriate authorities. In a number of jurisdictions, the offence has been replaced by a statutory offence. No corresponding statutory offence has been legislated in Victoria.
It is submitted the need for such a statutory offence is essential to the maintenance of law and order in Victoria.
In the case of Lawyer “X,” or Victoria Police Informant 3838, and now allegedly other lawyers, there may have been blatant breaches of lawyer client privilege. It must be noted that, if so, it was the lawyers who acted improperly and 3838 has since been rightly disbarred as a consequence.
The High Court described police use of Informer 3838 as reprehensible conduct which involved sanctioning “atrocious breaches of the sworn duty of every police officer”. However, what the High Court did not say was that the Victoria Police had acted illegally. Nor did the High Court specify what the ‘atrocious breaches of the sworn duty of every police officer’ were, other than by inference, using 3838 as a paid informer.
The Court also found that lawyer 3838 had engaged in a “fundamental and appalling breach” of her obligations as a barrister.
If police had acted unlawfully one could reasonably expect that the High Court would have so said.
It is submitted that legislative clarity is required in relation to police informers so that everyone knows what they can do and what they cannot. Clear legislative guidelines will prevent the difficulties relating to 3838 and others from arising again. In the Royal Commission making recommendations it is urged that there does not arise the ‘law of unintended consequences’.
Victoria has had a “Crime Stoppers” program since 1987. The Program receives information from the public, sometimes anonymously and sometimes through identified persons, with many of the latter paid for their information. Between 1987 and 2017 information gained through Crime Stoppers resulted in 871,755 contacts, 20,275 arrests, 80,725 charges laid and $203 million in contraband seized. It is clear that the ability of police to receive information and intelligence is, in part, the lifeblood of combatting crime.
It is submitted that any recommendations regarding police use of informers must not be at the expense of limiting such an effective weapon against crime as Crime Stoppers. To do so would be unconscionable.
That the conduct of the Victoria Police was most unwise cannot be disputed. Those involved at the highest levels ought to have known better, at least to the extent of assuring themselves that they were not sanctioning breaches of lawyer client privilege. Where no such privilege applied, why should police not have gained as much information about very serious crimes, including murders and extensive drug trafficking, as possible? Lawyers are also citizens.
The CAA would, with respect, reserve the right to make further submissions as and when appropriate in our view, as the Royal Commission proceeds.
Submitted by and on behalf of;
The Community Advocacy Alliance Inc.
PO Box 206
Kelvin Glare AO APM
Executive Chairman CAA
Ivan W Ray
Chief Executive Officer
Executive Secretary CAA