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1 | Page GUIDANCE for NSW BARRISTERS in the WAKE OF GUIDANCE FOR NSW BARRISTERS IN THE WAKE OF THE MATTER OF LAWYER X BACKGROUND 1. In its November 2018 judgment AB (a pseudonym) v CD (a pseudonym) and Ors; EF (a pseudonym v CD (a pseudonym) and Ors,1 the High Court unanimously condemned a Victorian barrister (“Lawyer X”) for “appalling breaches of [her] obligations as counsel to her clients and of [her] duties to the court” when acting as an informant against her own clients.2 So egregious were those breaches that the High Court did not consider it necessary to further elaborate on what specific obligations and duties Lawyer X had violated. 2. The Royal Commission into the Management of Police Informants (“the Royal Commission”), as part of its inquiry, is currently considering the legal obligations of human sources who may be under duties of confidentiality and privilege.3 However, the Royal Commission’s report will not be finalised until 1 July 2020.4 3. In the interim, there is a pressing need for the New South Wales Bar Association to issue clear guidance to its members on the legal and ethical issues raised by the seemingly unprecedented deployment by law enforcement agencies of a barrister informant against her own clients in Victoria. 4. A narrow question is raised for the New South Wales Bar: is it ever appropriate for a barrister to act as a registered informant against a client? However, broader questions are also raised, including whether there are any circumstances in which a barrister can act as an informant and in what circumstances counsel may be required to breach, or be justified in breaching, client confidences. 5. This paper will cover: 1 [2018] HCA 58 (“AB v CD”). 2 Ibid., [10]. 3 See item 4 of the Royal Commission’s Terms of Reference: https://www.rcmpi.vic.gov.au/MediaLibraries/RCManagementOfPoliceInformants/keydocuments/Letters-Patent,-Royal- Commission-into-the-Management-of-Informants.pdf. See also the Royal Commission’s Progress Report (July 2019), pp48- 51. 4 The original reporting date of 1 July 2019 was extended on 25 May 2019: see https://www.rcmpi.vic.gov.au/media/ extension-granted. 1 | Page (i) the ethical and legal implications of New South Wales (NSW) barristers acting as informants; (ii) what obligations, if any, NSW barristers may be under to provide information to law enforcement agencies during the course of their legal practice; and, (iii) whether NSW barristers can voluntarily report matters to law enforcement agencies where, in the course of their practice, a confider threatens the future safety of an individual. INFORMANTS Informant: Definition 6. There is no statutory definition of “informant” or its synonym “human source”. For the purposes of this paper, an “informant” is defined as an individual who enters into an agreement to provide information covertly to law enforcement or regulatory agencies to assist in the investigation, apprehension or prosecution of suspected offenders. That is, a registered source or a person operating in circumstances akin to a registered source. 7. An informant is, therefore, to be distinguished from an individual who openly reports a suspected crime to police. For completeness, however, this paper will, when addressing the broader questions raised by the Lawyer X scandal, discuss whether there may be circumstances in which barristers who are not informants (as defined above) could be said to be required to report information relating to crimes to law enforcement agencies – and, if so, whether this information includes confidential information – or may, on a discretionary basis, take steps, including reporting matters to police, to prevent the threatened future commission of serious offences by their clients. The Use of Informants 8. While it is beyond the scope of this paper to comment on the propriety of the use of informants generally, it is acknowledged that from the perspective of law enforcement, it has been said that: [i]t is extremely difficult for law enforcement to infiltrate organised crime groups as they conduct their operations according to a strict code of secrecy. Members of these groups who breach this code may be exposed to severe punishment…If people who provide information confidentially to the police feel inhibited in assisting police by providing information about serious criminal allegations, it would seriously hamper [law enforcement agencies] in [their] work.5 5 From the affidavit of Assistant Commissioner Zuccato, described as “posit[ing] a powerful case” for protecting the identity of an informant in R v Eastman [2015] ACTSC 97, [12], per Whealy AJ. 2 | Page 9. The common law has long recognised the importance of informants on the basis that police “can function effectively only if they receive a flow of intelligence about planned crime or its perpetrators” and that “[s]uch intelligence will not be forthcoming unless informants are assured that their identity will not be divulged”.6 10. “Human sources” are used by state, territory and federal law enforcement and security agencies ranging from the Australian Criminal Intelligence Commission (ACIC) and the Australian Security Intelligence Organisation (ASIO) to the NSW Crime Commission and the NSW Police Force. Informers are additionally utilised in civil law proceedings brought by the Australian Securities Investments Commission (ASIC) and the Australian Competition and Consumer Commission (ACCC).7 11. In May 1997, in the Final Report of the Royal Commission into the New South Wales Police Service (Volume 1: Corruption), the Hon. Justice James Wood commented that a serious aspect of improper conduct involved the use of informants: outside the Informant Management Plan, particularly where they are spared prosecution for offences they are known to have committed, or are given favourable treatment in relation to custodial arrangements or sentencing in return for giving evidence against others, without sufficient disclosure of their true position to senior officers, the DPP and the courts.8 At that time the Commission noted that, despite comprehensive safeguards, there was significant non-compliance, with many officers regarding safeguards as “an unworkable interference with their investigative work” and with informant registration lacking critical details. As a result, NSW police undertook a review of its use of informants and, on 14 April 1997, the Informant Management Manual came into effect. There were, nevertheless, extensive recommendations made by the Commissioner in relation to the future management of informants.9 12. The question now arises, over twenty years later, as to whether, accepting that such agencies will continue to utilise informants, NSW Barristers can ever be registered sources for such bodies. This is particularly so given the independent obligations that legal practitioners have to the court and the code of behaviour and professional discipline that legal practitioners are subject to as members of the legal profession. Current Regulation of the Use of Informants 6 D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589, 607, per Lord Simon (“D v NSPCC”). 7 See the Judicial College of Victoria, Open Courts Bench Book: Informers, Undercover Police Operatives and Police Methods (2019), [27] to [30]. 8 The Hon. Justice James Wood, Royal Commission into the New South Wales Police Service, Final Report Volume I, p.113 [4.108] 9 The Hon. Justice James Wood, Royal Commission into the New South Wales Police Service, Final Report Volume II, pp.440-441, Recommendations. 3 | Page 13. The Crown’s disclosure obligations (subject to public interest immunity) and the courts’ mandatory and discretionary powers to exclude improperly-obtained or otherwise unfairly prejudicial evidence and to give judicial warnings on the quality of informant evidence all serve to discipline indirectly the use of informants in a curial context. Additionally, in this State, the Law Enforcement Conduct Commission has an object of promoting integrity of law enforcement agencies and preventing misconduct in those agencies.10 14. The only statutory limitation in this State that directly relates to the use of informants, however, is contained within s 7 of the Law Enforcement (Controlled Operations) Act 1997 (NSW) (“the LECO Act”),11 which prohibits a “ law enforcement agency”12 from authorising a “controlled operation” that is likely, inter alia, to endanger seriously the health or safety of persons. The LECO Act serves to remind law enforcement agencies that not all means are justified by the legitimate aim of bringing to justice those suspected of serious crimes. For instance, in its unanimous decision in Gedeon and Dowe v Commissioner of the New South Wales Crime Commission,13 the High Court held that a controlled operation involving the sale of cocaine (which was never recovered) to the appellants by a co-operating informant introduced dangerous narcotics onto the streets, and thereby endangered the health of end users. As Gedeon demonstrates, breach of s 7 of the LECO Act may lead to the inadmissibility of any evidence produced by an improperly authorised operation. 15. The operational use of informants – their selection, registration and handling – is, however, largely a matter for agencies’ internal policies and protocols and any disciplinary proceedings that could flow from their breach.14 16. The NSW Crime Commission’s Code of Conduct, for instance, lays out the approach to be taken during “human source handling” in the following terms: 10 Law Enforcement Conduct Commission Act 2016 (NSW), s 3. 11 The LECO Act and parallel legislation in other Australian jurisdiction was enacted in response to the High Court’s decision in Ridgeway v The Queen (1995) 184 CLR 19 (“Ridgeway”). Ridgeway settled that a substantive defence of entrapment by government officers or agents, as applied in criminal trials in the United States’ federal courts had no application in Australia and confirmed that judges’ discretionary power at common law (now codified under the Uniform Evidence Act 1995) to exclude evidence on the grounds of public policy extended to the exclusion of evidence of an offence procured by unlawful conduct by law enforcement officers.
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