Final Report Volume IV VOLUME IV NOVEMBER 2020 Royal Commission into the Management of Police Informants Final Report Volume IV The Honourable Margaret McMurdo, AC Commissioner ORDERED TO BE PUBLISHED Victorian Government Printer November 2020 PP No. 175, Session 2018–2020 Final Report: Volume IV 978-0-6485592-4-5 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 14: The use and disclosure of information from human sources in the criminal justice system 4 Chapter 15: Legal profession regulation 66 Chapter 16: Issues arising during the conduct of the Commission’s inquiry 120 Chapter 17: Work beyond the Commission 152 14 The use and disclosure of information from human sources in the criminal justice system INTRODUCTION Term of reference 4 required the Royal Commission to inquire into and report on the current use of information in the criminal justice system from human sources who are subject to legal obligations of confidentiality or privilege. Term of reference 4 also directed the Commission to examine a very specific aspect of disclosure in criminal cases; namely, the appropriateness of Victoria Police’s practices for the disclosure or non-disclosure of the use of such human sources to prosecuting authorities. Term of reference 5b required the Commission to consider measures that may be necessary to address any systemic or other failures arising from the use of information obtained from human sources subject to legal obligations of confidentiality or privilege in the criminal justice system, and how such failures may be avoided in the future. It is important to acknowledge that the disclosure practices that existed throughout the period that Ms Nicola Gobbo was providing information to Victoria Police differ in many respects to current practices. Some of those historical practices and their application to the events relevant to terms of reference 1 and 2 are discussed in Chapter 9. 4 THE USE AND DISCLOSURE OF INFORMATION FROM HUMAN SOURCES IN THE CRIMINAL JUSTICE SYSTEM This chapter does not address these historical practices but instead sets out how the current law and policy operate and the Commission’s conclusions about the adequacy and appropriateness of current practices. As required by term of reference 4, this chapter also considers whether there are adequate safeguards for how: • Victoria Police prosecutes summary proceedings • the Victorian Office of Public Prosecutions (OPP) prosecutes indictable proceedings on behalf of the Victorian Director of Public Prosecutions (DPP). Prosecutors play a vital role in ensuring that criminal proceedings are conducted fairly. They have several well-defined duties, including the duty of disclosure. For a prosecutor to fulfil their role effectively, it is critical that they have knowledge of material that is relevant to an accused person’s case. This includes any information that could undermine that person’s right to a fair trial. The prosecution needs all relevant information to assess whether a fair trial can occur. Without this information, the prosecution is unable to safeguard against the risk of an unfair trial. The importance of the prosecution being aware of all matters relevant to an accused person’s case is starkly illustrated in the events that led to this inquiry. The Court of Appeal of the Supreme Court of Victoria observed that because the matters relating to Ms Gobbo’s role as a human source were subject to a public interest immunity (PII) claim and Victoria Police did not disclose this information to the DPP or the court before the relevant convictions, there was no possibility of a prosecution being withdrawn or trial being stayed (stopped either temporarily or indefinitely). As the Court of Appeal stated, the failure of the Chief Commissioner to disclose the relevant matters to the DPP resulted in a ‘very difficult and unfortunate situation’.1 In Victoria, the law of PII typically operates to prevent the police and the prosecution from disclosing to an accused person that a human source has provided information relevant to their case. This is based on the need to protect the safety of the human source as well as the community benefits to be gained from the continued use of human sources, who may only provide information to police if confident that their identities will be protected. In most criminal proceedings in Victoria, police do not generally disclose to the prosecution the existence of a human source.2 Victoria Police’s practices for disclosing information from human sources who have legal obligations of confidentiality or privilege are essentially covered by the same laws and policies that regulate the use of human source information more generally in the criminal justice system. To address this term of reference, the Commission has therefore had to examine: • how disclosure operates in the criminal justice system more broadly • general principles that apply to the disclosure of human source information. It is important to note the limits of term of reference 4 and therefore the discussion in this chapter. Human sources can be used in the criminal justice system as either sources of information only or sources of information who are also witnesses. Term of reference 4 related to the use of human sources with legal obligations of confidentiality or privilege as sources of information only. Situations when a human source is involved as a co-accused in the criminal acts of the accused person, or when a human source becomes a witness, are outside the scope of term of reference 4. Having reviewed the current law and practice in this area and considered stakeholders’ views and experience, as well as the approach taken in other jurisdictions, the Commission considers that there is scope for reform in the conduct of criminal proceedings when an investigation has involved information from a human source. In particular, the Commission considers that Victoria Police’s processes for disclosing relevant material to prosecuting authorities should be strengthened. It recommends that disclosure certificates be introduced to remind Victoria Police officers of their disclosure obligations and encourage them to provide information to prosecuting authorities clearly and transparently. 5 ROYAL COMMISSION INTO THE MANAGEMENT OF POLICE INFORMANTS The Commission also considers that there is scope to improve disclosure practices more broadly; in particular, positive cultural change, effective leadership and improved training of Victoria Police officers are crucial to achieving sustained and long-term improvements in disclosure practices. CURRENT CONTEXT AND LAW This section sets out current law and practice in Victoria regarding the use and disclosure of information from human sources who are subject to legal obligations of confidentiality or privilege. It outlines: • the prosecution’s duty of disclosure in Victoria, including how disclosure operates more broadly in the criminal justice system and the key principles that govern the disclosure of human source information • the current processes and procedures for the disclosure of information subject to a PII claim • how police disclose information to prosecuting authorities in other Australian jurisdictions. The prosecution’s duty of disclosure In Victoria, as in other Australian jurisdictions, the prosecution’s duty of disclosure comes from a combination of legislation, common law and professional guidelines.3 Further, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) recognises that a person charged with a criminal offence in Victoria is entitled to be ‘informed promptly and in detail of the nature and reason for the charge’.4 Prosecutors have a significant role in the proper administration of justice. They represent and exercise the powers of the state; therefore, they have a duty to ensure that the prosecution’s case is presented fairly and impartially.5 The High Court of Australia recently described this duty as involving the prosecutor presenting to the court all ‘available, cogent and admissible evidence’.6 In criminal proceedings, the prosecutor’s role is not to obtain a conviction by any means necessary. Instead, it is to give the court all relevant and reliable evidence surrounding a case and to address the jury about how to use that evidence according to the law.7 The duty of disclosure is a key part of the prosecution’s duty to conduct cases fairly and to make an accused person aware of the case against them. Accordingly, the prosecution has a duty to disclose all evidence that is relevant to the case against the accused person, even if that evidence might undermine the prosecution’s case or help the accused person.8 For example, in a case where an accused person is charged with an armed robbery at a convenience store and their defence is that they were not present at the time of the robbery, evidence from a witness that identifies the accused person as the person who committed the robbery is relevant and supports the prosecution case. If another witness asserts that a different person committed the robbery, the prosecution should also disclose this information to the accused person, even if it undermines the prosecution case by showing that someone else may have committed the robbery. The duty of disclosure applies to ‘the prosecution’ in a broad sense. This includes police prosecutors, the DPP and other lawyers who act on behalf of the DPP to prosecute a criminal offence. This also means that for the purposes of the prosecution’s duty of disclosure, police are part of the prosecution.9 The reason for this is that the prosecutor can only fulfil their duty of disclosure to the extent that they know about the information that must be disclosed to the accused person, because they have been given the information.10 The prosecution therefore has a duty to disclose all relevant material that the police possess, regardless of whether the individual prosecutor is also aware of that information.