How Informant Evidence can Prevent Justice and Lead to Wrongful Convictions
Last week, on 26 July 2019, convicted murderer Faruk Orman, walked free after serving 12 years in prison. His conviction was overturned following shocking revelations that his barrister, Lawyer X (aka Nicola Gobbo) was providing information to police that led to his ultimate conviction.
The Victorian Court of Appeal held that the information provided by Ms Gobbo led to a contamination of his case and found that the conviction was a “substantial miscarriage of justice”. This is the first conviction to be overturned by the Court of Appeal in Victoria since the start of the Royal Commission. Sadly, though, it is unlikely to be the last.
The legal profession and the public alike were left stunned earlier this year when it came to light that Ms Gobbo, while representing some of the most high-profile criminal underworld figures, was simultaneously acting as a long-term police informant. What is perhaps most shocking is that some of the information she provided to police was in relation to her very own clients, in breach of legal professional privilege and her duty of client confidentiality.
The Royal Commission into the Management of Police Informants is still ongoing in Melbourne, however the evidence that has emerged during the Commission has taught us one very powerful lesson so far. That is, that wrongful convictions can and do still occur in Australia to this day, notwithstanding the safeguards that our justice system offers.
Police informants are just one of many factors that can result in a person’s wrongful conviction. What is unfolding during this Royal Commission in Victoria should serve as a reminder that informant evidence in criminal cases must be treated with the utmost caution. This is particularly the case where there is no other concrete evidence.
In criminal justice proceedings in Queensland (and in most other Australian jurisdictions), all relevant material must be disclosed to an accused to enable them to understand, test and challenge the police case against them. However, this right to information does not apply to evidence from police informants. There is a veil of secrecy that covers this information. The details surrounding who the informant is, the circumstances in which they provided information to police, what they stood to lose or gain, and therefore what motivation there is for them to lie are often left only in the police’s hands. Those accused of crimes are often left incapable to know, test, or challenge the credibility of informant evidence used against them. The secretive nature of the informant system renders cross-examination and other legal safeguards against unreliable testimony largely ineffective.
Making matters worse, informants are often afforded leniency in their own cases in exchange for the information they provide police (particularly if it assists in the securing of convictions). The reality is, the promise or expectation of possible benefits from the police creates a strong incentive for an informant to lie or provide misleading information. When they do lie, they undermine the integrity and the truth-seeking function of our criminal justice system. However, the laws around police informants don’t provide any assistance. Instead, they leave an accused in the dark unable to fully understand and test the evidence against them. Consequently, we are none the wiser as to whether the informant is in fact telling the truth or not.
This is why transparency in the law is crucial. For far too long, the world of police informants has been an evidentiary black hole. While this remains the case, accused people are at risk of unfair trials and wrongful convictions. We hope that the Royal Commission leads to sensible reforms that all the States and Territories in Australia can and do adopt.
Do You Need Legal Representation?
If the police case against you contains evidence from a police informant, it is vital that you obtain expert advice.
Our criminal lawyers have a wealth of experience in handling cases with informant evidence and devising strategies that will assist you in your case.