Final Report Volume I NOVEMBER 2020 Royal Commission into the Management of Police Informants Final Report Volume I The Honourable Margaret McMurdo, AC Commissioner ORDERED TO BE PUBLISHED Victorian Government Printer November 2020 PP No. 175, Session 2018–2020 Final Report: Volume I 978-0-6485592-1-4 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). The Royal Commission into the Management of Police Informants acknowledges the traditional Aboriginal owners of country throughout Victoria. We pay our respects to them, their culture and their Elders, past, present and future, and their ancient tradition of striving for a better functioning community. 30 November 2020 Her Excellency the Honourable Linda Dessau, AC Governor of Victoria Government House Melbourne VIC 3004 Your Excellency In accordance with the Letters Patent dated 13 December 2018 and the amendments to the Letters Patent dated 7 February 2019, I have the honour of presenting to you the Final Report of the Royal Commission into the Management of Police Informants. Yours sincerely The Honourable Margaret McMurdo, AC Commissioner Contents Commissioner’s foreword 8 Terms of reference 10 Acronyms 11 Glossary 13 Summary of human source management terms and processes 17 List of key police taskforces and operations 24 List of key people relevant to the use of Ms Nicola Gobbo as a human source 30 Chapter 1: Establishment of the Royal Commission 44 Chapter 2: The importance of the inquiry 62 Chapter 3: Conducting the inquiry 82 Chapter 4: Legal obligations of confidentiality or privilege 108 Chapter 5: Legal principles guiding the inquiry 134 Chapter 6: Chronology of key events 167 Appendix A: Letters Patent 229 Appendix B: Amendments to Letters Patent 233 Appendix C: List of public submissions 235 Appendix D: List of responsive submissions 238 Appendix E: List of witnesses at the Commission’s hearings 243 Appendix F: List of parties with leave to appear 247 Appendix G: List of stakeholders consulted by the Commission 250 Appendix H: List of people who worked with the Commission 255 ROYAL COMMISSION INTO THE MANAGEMENT OF POLICE INFORMANTS Commissioner’s foreword In December 2018, the High Court of Australia published its judgement upholding the decisions of Victorian courts to allow the Director of Public Prosecutions (DPP) to disclose to a group of convicted people that defence barrister, Ms Nicola Gobbo, had been a human source. The Court stated: [Ms 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 [her] 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. On 13 December 2018, the Victorian Government established this Royal Commission to inquire into and report on cases that may have been affected by Ms Gobbo’s conduct as a human source; the conduct of Victoria Police officers in their use of her as a human source; the adequacy of current processes for the management of human sources with legal obligations of confidentiality or privilege; and the use and disclosure of information from such human sources in the criminal justice system. In the foreword to the Commission’s progress report, I described this task as mammoth in scale and Janus-like in its need to look both to the past and to the future. That description was apt. The Commission examined events dating back to 1993; received 157 public submissions and 280 witness statements; issued 433 notices to produce and 238 formal requests for information resulting in the production of over 155,000 documents; held 129 days of mostly public hearings; examined 82 witnesses; tendered 1,957 exhibits; and consulted with 97 individuals and organisations. It received a further 45 submissions in response to the closing submissions of Counsel Assisting. I was greatly assisted by a fine legal team of Counsel Assisting and Solicitors Assisting; a wonderful Chief Executive Officer and lawyer, Ms Kylie Kilgour; and the Commission’s hard-working and talented policy and research, investigations, operations, enquiries, and media and communications teams. The names of the many valued individuals and organisations who contributed to the Commission’s work are listed in Appendix H. I sincerely thank every one of them. I thank the Fair Work Commission for the use of its premises to conduct hearings, and the Victorian courts for providing the Commission with material essential to the inquiry and prioritising the suppression order proceedings that aided the Commission’s public reporting and other work. The Victorian media played a critical role in this inquiry. It conscientiously complied with the many complex non- publication orders, appreciating that any slip could endanger lives. In the interests of the public, it rightly tested Victoria Police’s applications to close hearings and for suppression orders. Importantly, its reporting of the hearings increased community awareness of the Commission’s work and helped restore public confidence in the criminal justice system. I am also grateful to the Victoria Police officers who assisted the Commission, especially those who shared their experience and insight in the Commission’s focus groups. My thanks, too, to the former Chief Constable of Merseyside Police, Professor Sir Jonathan Murphy, QPM, DL, for generously sharing his expertise and giving evidence remotely from the United Kingdom, and to the many organisations and experts who shared their knowledge in consultations with the Commission. 8 COMMISSIONER’S FOREWORD On 24 August 2020, 18 months after the High Court’s scathing criticism and the Commission’s establishment, Victoria Police stated for the first time that it: …accepts without qualification or reservation, that permitting Ms Gobbo…to give information to Victoria Police about her own clients…is reprehensible. It was an indefensible interference in the lawyer/client relationship…essential to the proper functioning of the justice system and to the rule of law. Victoria Police’s failure at the time to ensure that these circumstances were identified and disclosed was also a profound failure. I welcome Victoria Police’s belated apology for the serious harm caused by its use of Ms Gobbo. In their complete and unredacted closing submissions, Counsel Assisting invited me to find that Ms Gobbo and named current and former officers may have committed criminal offences. For reasons explained fully elsewhere, I declined to do this. I have found, however, after considering the responsive submissions of Ms Gobbo, those current and former officers, and Victoria Police, that there is sufficient merit in Counsel Assisting’s contentions to warrant further investigation to determine whether to bring criminal charges. I have therefore recommended legislation to establish an independent Special Investigator to undertake this task. If the Special Investigator assembles sufficient admissible evidence to support criminal charges, they will prepare a brief for the Victorian DPP to determine whether it is in the public interest to prosecute. Even if there is sufficient evidence to bring charges, the DPP’s decision may be difficult. These events occurred long ago. Records may be incomplete and memories may have faded. Ms Gobbo was encouraged in her behaviour by police and now lives in fear of being murdered. The current and former officers acted within what Victoria Police accepts was a failed system and many, perhaps all have had otherwise exemplary careers serving the public good. If the DPP determines that it is in the public interest to prosecute, those charged will receive a fair trial according to law, unlike those whose trials were corrupted by their conduct. Taking a broad approach, the Commission has identified 1,011 individuals with convictions or findings of guilt that may have been affected by the conduct of Ms Gobbo and Victoria Police. That is not to say that all these convictions will be overturned on appeal, but at least these individuals are now aware of the relevant facts and can obtain legal advice to make an informed decision about whether to pursue any appeal rights. The deception of Ms Gobbo and Victoria Police meant that for many years, their improper conduct was hidden. With the future investigation of those responsible, and the appeals of those who failed to receive a fair trial because of this conduct, Victorians can now be assured that their criminal justice system is working as it should. I recognise that most current Victoria Police officers would not countenance an end-justifies-means approach to criminal investigations. I also recognise that human sources are a valuable tool in detecting and investigating crime. But a robust system of checks and balances is needed to support the ethical management of human sources and prevent improper use of confidential or privileged information. The Commission has recommended practical, evidence-based reforms to strengthen human source management processes, establish independent oversight and reinforce police disclosure obligations. Together, these recommendations aim to strengthen police practices and the operation of the criminal justice system so that the events that led to this inquiry can never happen again. In striving for that goal, I welcome the Premier of Victoria’s statement of the Government’s intention to implement all of the Commission’s recommendations, and the commitment of the Chief Commissioner of Victoria Police to heed those recommendations and take whatever steps necessary for Victoria Police to learn from its mistakes.