Flat White

How drug prohibition caused the Lawyer X outrage

31 March 2019

7:29 PM

31 March 2019

7:29 PM

An outrageous injustice is currently being investigated before a Royal Commission in Melbourne – the case of Lawyer X, now revealed as Nicola Gobbo, who represented many of the most infamous figures in the city’s gangland wars of the nineties and noughties while also informing on those very same clients to the police. But what the Royal Commission most likely won’t do is look at the deeper causes of the entire affair – our prohibitive drug laws.

Gobbo’s conduct – what the High Court said

Here is how the High Court of Australia has described Ms Gobbo’s behaviour and that of the police:

[Gobbo’s] actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of [her] obligations as counsel to her clients and of [her] duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging [Ms Gobbo] 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.

As a result of the High Court’s ruling, the Victorian Director of Public Prosecutions has written to Mokbel and 19 other criminals convicted of serious crimes to inform them that their convictions could be appealed, which could lead to their release.

The impact of Gobbo’s behaviour

Gobbo’s alleged behaviour, and that of the police, has dealt a serious blow to the criminal justice system. If people cannot trust lawyers to keep their instructions secret, no one will trust them or seek their advice. The entire legal system depends on people trusting their lawyers to give them legal advice so they can prepare for court. If people can’t turn to lawyers, they won’t know how to defend themselves or prepare their cases, resulting in waste, delay and injustice as innocent people or minor offenders end up in jail.

How our drug laws caused it

But this scandal unfolded, at least in part, because the police had become frustrated with the criminal justice system that seemingly let drug traffickers like Mokbel get away with it for years. But why were such traffickers escaping punishment? Astounding as it may seem, the answer lies in our drug laws.

Unlike laws against theft or murder, when people sell drugs there is usually no victim who complains to the police. There is simply a willing buyer and a willing seller. Drug networks grow and become profitable for this simple reason. As long as no one informs on them to the police, the network grows – unless someone gets caught.

That’s how people like Mokbel or Carl Williams get away with it for so long. Police may have had information about their wrongdoings, but information alone is not enough to convict people of crimes. Proof beyond reasonable doubt was required, and the police rarely have it unless someone is willing to testify.

So police have incentives to cut corners to catch drug dealers because they often don’t have witnesses to testify – and therefore a lack of evidence with which to prosecute suspects. It wouldn’t be the first time – there are reportedly seven other informers who have allegedly disclosed confidential information to police, including at least one other lawyer, Joseph Acquaro. Sadly – but unsurprisingly – Acquaro was shot dead in 2016. When police cut corners, they put lives at risk.

The fact is that none of this would be happening if drugs were manufactured safely and legally. There would be no gangs and no criminals to sell them if drugs were simply sold at pharmacies and manufactured by qualified technicians.

Instead, our drug laws make the drug trade more dangerous. Banning the lawful sale of drugs means only criminals, like Mokbel, sell them. As the penalty for selling drugs increases, so do the risks. Illegal drugs aren’t expensive to make, but because only criminals manufacture them, traffickers can increase their prices. Our drug laws make criminals very wealthy.

What’s worse is that drug dealers can’t turn to the law if someone breaks the rules – meaning they’re more likely to turn violent if a deal goes wrong. Moreover, illegal drugs are sometimes manufactured with dangerous impurities. In effect, our drug laws are empowering hardened criminals to sell dangerous drugs to the public.

Every attempt to clamp down on drug use has failed. Despite the fact that some 6700 drug offenders were in prison in 2018, the number of people who have used drugs in the last year has remained stable at about 15 per cent of the population for the last three decades. Penalties have increased, major traffickers were jailed, and police and a few lawyers have repeatedly broken the law. But nothing has changed.

If anything, arresting Mokbel and other drug dealers made their competitors who were still at large far wealthier, as prices increased in the short term after his operations came to a halt.

It’s time to reconsider our drug laws – they’re clearly not working. Instead of prohibiting drugs, we should consider a system that permits them to be legally and safely manufactured and sold. It’s worked without issues for Canada, Uruguay and ten American states including California. Why not here?

Vladimir “Zeev” Vinokurov is a solicitor. The views expressed here are his own.

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