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Ruling on Gobbo application

Commissioner McMurdo's ruling on Ms Nicola Gobbo's application to show reasonable cause for not giving evidence to the Commission is set out below.

04/10/19 5.55am from Melbourne
Published by Royal Commission into the Management of Police Informants

'Ms Gobbo was served with a Notice to Attend on 26 February 2019 and the Commission, through her lawyers, pressed her to provide a statement to this Commission relevant to the Terms of Reference in which she is the central protagonist, namely, the number of and extent to which cases may have been affected by her conduct as a human source and the conduct of current and former of members of Victoria Police in their disclosures about and recruitment, handling and management of her as a human source.

Ms Gobbo has been represented at community expense, and continues to be represented, throughout the life of this Commission of virtually all its hearings by solicitors and by both senior and junior counsel. Despite the Commission affording her every consideration, she has not yet availed herself of the opportunity to provide the Commission with a statement. The Commission therefore required her to attend and give evidence. Because of the wellknown, well publicised and very real risk to her safety, and for other practical reasons, the Commission arranged, through her lawyers, for this to be done by either video link or telephone link. Ultimately the Commission concluded that telephone link was the only practical way for her to give evidence.

Her counsel submit that she is now too unwell to do this, relying on a number of medical reports. A psychiatric report dated 1 September 2019, states that, “she finds herself deteriorating progressively in her intellectual and psychological functioning”, and that she has not improved in the past six months and was not responding to medication.

A specialist medical report of 12 September 2019 considered the condition for which she was being treated, "was fairly well managed” with medication but her condition escalated in March 2019. The specialist referred her to a psychologist and psychiatrist, her last consultation, with this specialist indicated that her condition was stable, and her mood improved.

The author of a psychologist report of 14 September 2019 stated that they had treated Ms Gobbo since 11 March 2019 on a weekly basis for symptoms of acute stress, depression and anxiety, affirmed by her psychiatrist. The author noted Ms Gobbo was, "able to manage concrete tasks, her depression has affected her focus and will need a (sic) substantially more resources to focus effectively", adding, "Ms Gobbo's training as a lawyer is indicative of her intellectual ability. There is little doubt that she is able to communicate effectively and her memory is remarkable. Under usual normal circumstances she is able to provide evidence. However, given her current circumstances and her situation, providing evidence from this environment is not the most conducive". The author further added, "given her circumstances, it would be beneficial for her to have a platform to have her voice her soonest (sic) possible".

A psychologist reported on 16 September 2019 of treating Ms Gobbo regularly since late 2019 in relation to her 2004 stroke. She was considered to be suffering from major depressive disorder and another disorder. The psychologist considered that between December 2018 and May 2019 Ms Gobbo's mental state was precarious and she was frightened.

A psychiatric report from a second medical practitioner, dated 18 September 2019, noted that Ms Gobbo became a patient on 12 April 2019 as there was concern her depression was deteriorating, despite medication and intensive psychotherapy with her therapist. The psychiatrist had not seen any visible improvement and opined that she was "In a vicious cycle of despair and emotional paralysis” and that the stage reached was therapeutic nihilism, that is incurable”.

When this matter was first listed for hearing I adjourned the application to allow Ms Gobbo to obtain further medical reports considering the issues of when Ms Gobbo was likely to be well enough to give evidence, and whether the fact that she appeared to have previously discussed feigning symptoms as a barrister to adjourn a court case, affected their opinions.

This morning Ms Gobbo has tendered two further medical reports. The psychiatrist referred to as psychiatrist 1 considered in a report dated 25 September 2019 that Ms Gobbo will not be “fit to undertake any form of interrogation in the Commission setting, the likelihood is that there would be a deterioration in her [condition] and subsequent to that worsening of concentration and attention, lowered frustration tolerance and this would lead to significant decline in performance capability, her role as a satisfactory, inhibiting her as a satisfactory witness. This unfortunately for Ms Gobbo will be for the long-term".

The psychiatrist who has known and presumably treated Ms Gobbo for 11 and a half years did not consider she was feigning her symptoms. The specialist who authored one of the earlier reports, in a further report dated 29 September 2019, described Ms Gobbo as reporting, "low mood, helplessness and hopelessness and poor concentration and memory problems”, adding, “Ms Gobbo is not capable of giving evidence before the Commission in her current circumstances and her incapacity to do so is indefinite". The author, who has treated Ms Gobbo since 2010, did not consider she was feigning symptoms and thought her symptoms were consistent with major depressive disorder, another condition, and post-traumatic stress disorder.

On the material presently before me I am inclined to accept that Ms Gobbo is probably suffering from those conditions, but I'm not presently persuaded she has demonstrated a reasonable excuse for failing to attend before this Royal Commission, which will be hearing evidence for the greater part of this calendar year, especially given the fact that the Commission is willing to take her evidence by telephone and in short bursts of two hours to accommodate her medical condition, and also has the power to significantly limit the length and nature of cross-examination.

I will therefore adjourn this application to once more allow Ms Gobbo the opportunity to prepare a sworn statement. If she does so, that can be tendered before the Commission and a Notice to Produce can be issued to offer her the full protection of the inquiries Act. If, like every other witness who has given evidence before this Royal Commission, her memory of events so long ago is imperfect, she can explain this in the statement. The statement is to be provided by Monday, 18 November, if it is to be provided.

I will adjourn this application to 9.30 am on Tuesday, 26 November. If Ms Gobbo still submits then that she is not well enough to give evidence, even with the special consideration this Royal Commission is prepared to concede to her and to other witnesses, including police witnesses who suffer similar issues, she is to file submissions and any fresh material in support of her application by Tuesday, 19 November.'

Reviewed 15 October 2019