Final Report Volume II NOVEMBER 2020 Royal Commission into the Management of Police Informants Final Report Volume II The Honourable Margaret McMurdo, AC Commissioner ORDERED TO BE PUBLISHED Victorian Government Printer November 2020 PP No. 175, Session 2018–2020 Final Report: Volume II 978-0-6485592-2-1 Published November 2020 ISBN: Volume I 978-0-6485592-1-4 Volume II 978-0-6485592-2-1 Volume III 978-0-6485592-3-8 Volume IV 978-0-6485592-4-5 Summary and Recommendations 978-0-6485592-5-2 Suggested citation: Royal Commission into the Management of Police Informants (Final Report, November 2020). Contents Chapter 7: The potential effects of Ms Nicola Gobbo’s conduct as a human source 4 Chapter 8: The conduct of Victoria Police officers 75 Chapter 9: Victoria Police’s conduct: systemic issues and causal factors 199 Appendix A: List of potentially affected persons 253 7 The potential effects of Ms Nicola Gobbo’s conduct as a human source INTRODUCTION This Commission was established following revelations that Victoria Police had used Ms Nicola Gobbo, a criminal defence barrister, as a human source. The High Court of Australia in AB v CD1 characterised Ms Gobbo’s actions, in ‘purporting to act as counsel’ for people while ‘covertly informing against them’, as ‘fundamental and appalling breaches of [her] obligations as counsel to her clients and of [her] duties to the Court’. It went on to find that Victoria Police was likewise ‘guilty of reprehensible conduct’, having ‘knowingly’ encouraged Ms Gobbo to do as she did and ‘sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law’. The Court found that, as a result, ‘the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system’.2 Understanding how many cases may have been ‘corrupted’ by the conduct of Ms Gobbo and Victoria Police was an important part of the Commission’s task. Term of reference 1 required the Commission to inquire into, and report on, the number of cases that may have been affected by the conduct of Ms Gobbo as a human source, and the extent to which those cases may have been affected. This chapter addresses that term of reference. 4 THE POTENTIAL EFFECTS OF MS NICOLA GOBBO’S CONDUCT AS A HUMAN SOURCE The Commission focused on cases potentially affected by Ms Gobbo’s conduct as a human source between 1998, a year after her admission to legal practice; and 2013, when she ceased practising. Further, the Commission focused on cases within this period where convictions or findings of guilt may have been affected by Ms Gobbo’s conduct. This included cases where she acted as a lawyer, as well as cases where she did not act, but that may nonetheless have been affected by her conduct.3 Ms Gobbo was very busy in this period and her conduct related to a great many people and a large number of proceedings. Counsel Assisting undertook a detailed review of cases in this period and submitted that an astounding ‘1,011 persons may have been affected by the conduct of Ms Gobbo as a human source in the criminal justice system’.4 After reviewing those submissions, testing the methodology applied and considering the relevant responsive submissions received, the Commission accepts that the cases of 1,011 people may have been affected by Ms Gobbo’s conduct as a human source. Notwithstanding the Commission’s focus on cases resulting in convictions or findings of guilt, it is important to acknowledge that Ms Gobbo’s conduct may have also affected people who were not ultimately convicted or found guilty of a crime. For example, some people were investigated, charged or prosecuted in part through the use of Ms Gobbo as a human source, and sometimes while she purported to act for them, but they were not ultimately convicted or found guilty. Some of these people told the Commission they were aggrieved by Ms Gobbo’s conduct. In some cases, they had retained her to provide independent legal assistance, but likely did not receive it, owing to her conflicting interests. To this extent, they may have had their rights infringed in the very same way as others whom the Commission has determined are potentially affected by her conduct—the only difference being that they were not found guilty or convicted of a crime.5 For practical reasons, and in keeping with the parameters set for this inquiry, it was appropriate and necessary for the Commission to constrain its review of cases that ‘may have been affected’ to cases that resulted in convictions or findings of guilt. This should not, however, be taken as a denial of the legitimate grievances of other people affected by Ms Gobbo’s use as a human source. It is also important to acknowledge that the repercussions of Ms Gobbo’s conduct as a human source were not caused solely by what she did or failed to do, but also by the actions and inactions of Victoria Police officers, and by the institutional shortcomings within Victoria Police that allowed her improper and unethical conduct to commence, continue, escalate and flourish over many years. In this way, term of reference 1 intersected with term of reference 2, which focused on the conduct of current and former Victoria Police officers in their disclosures about, and the recruitment, handling and management of, Ms Gobbo as a human source. This chapter touches on the conduct of some Victoria Police officers because it is relevant to cases that may have been affected. Chapters 8 and 9 examine the conduct of Victoria Police officers, and the broader organisational context of their conduct, in more detail. To provide a full account of Ms Gobbo’s actions, the Commission had to do more than set out the potential effects on convicted persons and their proceedings. The magnitude and duration of her conduct was such that it has harmed the wider Victorian criminal justice system—not just Victoria Police, but also the legal profession, the Victorian Office of Public Prosecutions (OPP), the Victorian Director of Public Prosecutions (DPP), and the legal processes at the heart of our democracy—along with community confidence in that system. The ripple effects of this conduct will continue to emerge, and continue to be felt, over coming years. Having considered the available evidence, the Commission has concluded that Ms Gobbo’s conduct should be referred to a Special Investigator, to determine whether there is sufficient evidence to establish the commission of any criminal offence or offences. 5 ROYAL COMMISSION INTO THE MANAGEMENT OF POLICE INFORMANTS THE NATURE AND SIGNIFICANCE OF THE COMMISSION’S INQUIRY INTO POTENTIALLY AFFECTED CASES The nature and scope of the Commission’s inquiry into the conduct of Ms Gobbo as a human source, and the identification of cases potentially affected by her use, was set by its terms of reference. Counsel Assisting observed in their submissions to the Commission: [T]he purpose of the first term of reference … is to give the Government, the public, and the relevant affected persons a general appreciation of the breadth and depth of the impact of the use of Ms Gobbo as a source on cases in the criminal justice system over the extended period that she practised as a lawyer. In the submission of Counsel Assisting, it is not the function of the Commission to determine in which cases and for what precise reasons substantial miscarriages of justice occurred; that is a matter which is properly the preserve solely of the courts. Indeed, the Commission can give no remedy; its report amounts to an opinion. It would also be inappropriate and impracticable for the Commission to engage in the depth or comprehensiveness of analysis of cases that would be required of an appellant in preparing an application for leave to appeal against conviction before the Court of Appeal.6 The Commission accepts this submission. The utility of the Commission’s work to publicly expose the nature and extent of Ms Gobbo’s conduct, and identify policy reforms to ensure it is not repeated, would be undermined if the Commission’s findings risked prejudicing future legal proceedings. The Commission’s Letters Patent also required it to take care not to prejudice any ongoing investigations or court proceedings. The Commission has no judicial power and does not and cannot reach a conclusion about the legal consequences for any particular case. That is a matter for the courts. As discussed in Chapters 2 and 5, however, there are important legal principles that have informed the Commission’s approach to examining Ms Gobbo’s conduct. The principles that are of particular relevance to this chapter are as follows. The right to a fair trial is at the very core of our criminal justice system and our democracy. Imposing criminal sanctions may be the greatest power that the state holds over individual citizens. As a result of such sanctions, a person may be deprived of basic rights and liberties and publicly exposed as having violated society’s shared norms. That is why, in our democracy, criminal guilt is not determined by the executive, but by the judicial arm of government in independent courts, applying the rule of law. The process for establishing criminal guilt, the criminal trial, must be, and must be seen to be, fair and transparent, and must give an accused person a meaningful opportunity to understand the case against them and to defend themselves. Equally, when someone pleads guilty to criminal offending, thereby exposing themselves to criminal sanctions, it is essential that they are acting on a proper understanding of all relevant evidence for and against them.