High Court blasts police for 'reprehensible' conduct over Informer 3838

Victoria Police's conduct in turning a criminal defence barrister into a police informer has been blasted as "reprehensible conduct" by the High Court of Australia.

In what is considered one of Victoria's biggest legal scandals, it was revealed on Monday morning that the female criminal barrister, who operated as Informer 3838 from 2005 to 2009, gave police information about hundreds of criminals.

Some of the criminals were on the lawyer's own client list and among the biggest names in Australia's underworld, including jailed drug lord Tony Mokbel and his associate, drug trafficker Rob Karam.

Tony Mokbel.Credit: Justin McManus

The scandal is set to embroil senior police and prompted Premier Daniel Andrews to announce a royal commission.

The lawyer was identified by police as Informer 3838, but was referred to in the High Court by the acronym EF.

In a searing judgment released on Monday afternoon, the High Court said the lawyer fundamentally and appallingly breached her obligations to her clients and the court.

"Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will," the judgment reads.

The judgment, which is from the full bench of the High Court, comes after Victoria Police made a last-ditch bid to block the Victorian Director of Public Prosecutions from telling Mokbel and other criminals that they could have grounds to appeal their convictions.

Rob Karam (centre) carrying a blue folder, outside Melbourne Magistrates Court in 2009.Credit: Paul Rovere

The DPP can now notify underworld figures, including Mokbel and his shipping industry inside man Rob Karam, that their lawyer had become a police informer and gave up information that puts their convictions at risk.

The High Court said the prosecution of each convicted person was corrupted in a manner that "debased fundamental premises of the criminal justice system".

"The public interest in preserving EF's anonymity must be subordinated to the integrity of the criminal justice system," the judgment reads.

"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.

"Generally speaking, it is of the utmost importance that assurances of anonymity of the kind that were given to EF are honoured.

"But where, as here, the agency of police informer has been so abused as to corrupt the criminal justice system, there arises a greater public interest in disclosure to which the public interest in informer anonymity must yield."

Hundreds of convictions at risk

Informer 3838 claimed her information led to the convictions of hundreds of people.

"There were a total of 386 people arrested and charged that I am specifically aware of based upon information I provided to Victoria Police, but there are probably more because as you would know, I did not always know the value or use of some of the intelligence that I was providing," she wrote in a letter to police command in 2015.

The case has been in the courts for years but was largely stifled by suppression orders.

Some of those suppression orders were lifted on Monday morning, though Informer 3838's identity remains secret.

In a decision released on Monday, the Court of Appeal ruled the public interest in disclosing the lawyer’s role as an informer outweighed the risks to her, saying the disclosure would reveal the "real likelihood of a serious misdeed of public importance" on the part of the barrister and Victoria Police.

The convictions in question include Mokbel's, but particularly the convictions obtained in one of Australia's largest ecstasy hauls, the infamous "tomato tins" drug case linked with the Calabrian mafia.

Federal police seized a container at Melbourne's docks in June 2007 that was filled with 4.4 tonnes of ecstasy hidden inside tomato tins shipped from Italy.

Mokbel's shipping industry inside man and former horse racing identity Rob Karam is currently serving more than 35 years’ jail for his role in the infamous case.

Karam's jail term is now in question, as well as that of Pasquale Barbaro, the head of the drug syndicate.

Another underworld figure, Frank Madafferi, was also sentenced over the bust.

Why the defence lawyer became Informer 3838

Informer 3838 was registered as an informer in 2005 at the tail end of the gangland war.

She had a mix of motivations for turning "supergrass", the Court of Appeal concluded, including "ill health, feeling trapped in the criminal world of her clients and frustrated with the way criminals used the system and wanted to be rid of Tony Mokbel and his associates".

Her use as an informer "went right to the top" of Victoria Police, The Age was told.

In particular, three senior police officers were on a steering committee that oversaw investigations where Informer 3838 was either used, or detectives attempted to use her to gather information from allegedly corrupt police.

Former chief commissioner Simon Overland, current Chief Commissioner Graham Ashton – who was then at the Office of Police Integrity – and current Assistant Commissioner Luke Cornelius were all on the steering committee.

Mr Overland, then a deputy commissioner, is understood to have asked then-Briars taskforce investigator Ron Iddles to take a statement from her.

The Briars taskforce was investigating links between police corruption and the murder of self-professed vampire and male prostitute Shane Chartres-Abbott in June 2003.

It is understood Mr Iddles refused to get the statement signed, believing the use of the informer was so unethical it could lead to a royal commission.

Former Chief Crown prosecutor, Gavin Silbert, QC, said a Royal Commission was required to examine the "disgraceful misconduct" by Victoria Police.

Mr Silbert said a defence lawyer informing on their clients to Victoria Police was "completely in breach of their ethical obligations and a complete conflict of interest."

Mr Silbert, QC, who retired from the OPP in March 2018, also criticised the Legal Services Commissioner and the Bar Council over their failure to act.