AB & EF v CD – Feb 2019
This case eventually became known as ‘Lawyer X’. It involved EF, a barrister who had become an informer for Victoria Police (‘AB’). Victoria Police had assured EF her identity would remain confidential. The Independent Broad-based Anti-corruption Commission (IBAC) prepared a confidential report for ‘CD’, the Victorian Director of Public Prosecutions (DPP). The report recommended the DPP consider if any prosecutions had resulted in a miscarriage of justice by evidence obtained through a breach of legal professional privilege. The DPP concluded he was under a duty to disclose some of the information from the IBAC report to the convicted persons.
Victoria Police considered that if the DPP were to disclose this information, risk of death to EF would become “almost certain”. On 10 June 2016, Victoria Police and the barrister EF instituted proceedings in the Supreme Court seeking declarations that the information the DPP proposed to disclose was subject to public interest immunity, meaning he was not permitted to disclose it. The hearing was heard in the absence of the convicted to decide whether disclosure was warranted.
The Commission intervened in these proceedings primarily to make submissions on whether, and how, the Charter affected the appropriateness of the court dealing with the case in the absence of the convicted persons. The Commission submitted, and it was accepted by the court, that through the direct application of section 6(2)(b) of the Charter, the court itself had to act compatibly with the human rights of the convicted persons (relevantly fair hearing and criminal procedure rights), balanced against the rights of EF and her children (relevantly the rights to life, liberty and security, privacy and reputation and protection of families and children).
The court held that the rights of the convicted persons were limited because the proceeding took place without notice to, or direct participation, by them. This was a significant departure from ordinary court processes, so raising the possibility that the hearing was not fair under section 24(1). However, the court was satisfied that a fair hearing could take place without notice to the convicted persons. Importantly, the court appointed lawyers as ‘friends of the court’ to represent the interests of the convicted persons.
On 19 June 2017, the Supreme Court dismissed Victoria Police and EF’s public interest immunity claims on the basis that, although there was a clear public interest in preserving EF’s anonymity as a police informer, and thus keeping her and her children safe from harm, there was a competing and more powerful public interest in favour of disclosure. In addition, the court stated that disclosure was in the public interest to maintain public confidence in the integrity of the criminal justice system.
In making its decision, the court noted that the Chief Commissioner of Police had indicated that Victoria Police would endeavour to provide protection to EF and her children once the disclosures were made.
On 21 November 2017, the Court of Appeal dismissed AB’s and EF’s appeals. AB and EF appealed the decision to the High Court. The High Court initially granted special leave to appeal but later revoked that grant in November 2018.
The case has since led to a Royal Commission into the Management of Police Informants, which delivered its final report on 30 November 2020.
View the Supreme Court and Court of Appeal decisions here: AB & EF v CD [2017] VSC 350; AB v CD & EF [2017] VSCA 338
View the High Court decision here: AB v CD; EF v CD [2018] HCA 58