RCMPI

Chapter 1

Establishment of the Royal Commission

Introduction

On 3 December 2018, the Victorian Government announced that it would establish a royal commission to conduct an independent inquiry into Victoria Police’s recruitment and management of human sources (also known as police ‘informants’ or ‘informers’) subject to legal obligations of confidentiality or privilege. The announcement followed the public release of a unanimous decision of the High Court of Australia regarding Victoria Police’s use of former criminal defence barrister Ms Nicola Gobbo as a human source.

The High Court decision was the culmination of extensive litigation between the Chief Commissioner of Victoria Police, Ms Gobbo and the Victorian Director of Public Prosecutions (DPP) between 2016 and 2018. The court proceedings were initiated in the Supreme Court of Victoria by the Chief Commissioner in an attempt to prevent the DPP from disclosing to seven potentially affected individuals that their lawyer Ms Gobbo, in possible breach of her professional obligations and duties, had covertly informed on them to Victoria Police.1

In its 2018 decision, the High Court described Ms Gobbo’s actions as ‘fundamental and appalling breaches’ of her obligations to her clients and her duties to the court.2 Similarly, the High Court considered that Victoria Police was ‘guilty of reprehensible conduct’ by knowingly encouraging Ms Gobbo to act as a human source; and that, by doing so, Victoria Police was involved in ‘sanctioning atrocious breaches of the sworn duty of every police officer’ to act faithfully and in accordance with the law.3

A person charged with a criminal offence is entitled to a fair hearing, independent legal advice and representation, and a lawyer who acts in their best interests.4 The effective operation of the criminal justice system requires its participants, including lawyers and the police, to act with integrity to uphold the rights and freedoms of individuals, and fairly apply the rule of law. The failure to do so can undermine public trust and confidence in the criminal justice system.

In the Supreme Court decision related to the DPP’s proposed disclosure of information to the seven individuals, Justice Ginnane explained:

… a fundamental feature of our community is that all persons, whatever crime they have committed, are entitled to independent legal advice and counsel and an opportunity for a fair trial if they contest the charges or to be properly represented if they plead guilty. There is a strong public interest in ensuring that a lawyer’s breach of duty and obligations do not undermine the fairness of a trial, or the negotiation of a plea of guilty. The knowledge of [Ms Gobbo’s] role might have assisted the seven persons in a criminal trial if they had pleaded not guilty or in a plea.5

Due to the use of Ms Gobbo as a human source by Victoria Police, people who were represented by her may seek to have their convictions or sentences overturned. For example, during the Commission’s inquiry, the Court of Appeal of the Supreme Court of Victoria set aside Mr Faruk Orman’s 2009 conviction for murder and acquitted him. The Court determined that Ms Gobbo’s actions in the case had subverted Mr Orman’s right to a fair trial, and that this amounted to a substantial miscarriage of justice.6

This chapter outlines the key events that led to the establishment of the Commission, including:

  • the formal reviews into the use of Ms Gobbo as a human source
  • the proceedings between the Chief Commissioner, Ms Gobbo and the DPP
  • the announcement of the Commission
  • the proceedings to protect the identity of Ms Gobbo.

The chapter also outlines the structure of this final report.

The use of human sources

A human source is commonly understood to be a person who covertly supplies information about crime or people involved in criminal activity to police or other law enforcement agencies.7

Victoria Police describes a human source as a person who:

  • volunteers or provides information on a confidential basis to Victoria Police to assist with criminal investigations
  • has an expectation that their identity will remain confidential
  • is registered as a human source.8

Human sources are generally distinguishable from witnesses, victims of crime, and members of the community who volunteer information to police about events they have seen or heard in the course of their day-to-day activities.

Protecting the identity of human sources

Protecting the identity of human sources is paramount. In a statement to the Commission, then Assistant Commissioner Neil Paterson, APM, Intelligence and Covert Support Command, explained:

The ability of Victoria Police to recruit and use human sources is inherently dependent on potential human source[s] believing that their identity will be kept confidential and that their personal safety will be of paramount importance to Victoria Police and will be protected. When the identity of a human source is compromised there are many examples of such a compromise leading to the death or serious injury of the human source. For this reason, the confidentiality of human sources is paramount.9

It is commonly accepted that it is in the public interest to maintain the anonymity of human sources, both to avoid harm to them should their informing become known to others; and to maintain public confidence in the police’s ability to protect human sources and thus ensure that people remain willing to provide information to police.10 For these reasons, a person accused of a crime will typically not learn the identity of a human source who may have assisted police in their criminal investigation.11

Maintaining the confidentiality of a human source, however, needs to be balanced against the right of an accused person to be informed of the evidence relied upon to bring a criminal charge against them, particularly evidence that would assist them to defend their case.12

A person charged with a criminal offence is entitled to be ‘informed promptly and in detail of the nature and reason for the charge’.13 The common law imposes obligations on prosecutors to fully disclose to an accused person any material relevant to the court proceedings.14 When police or prosecutors wish to withhold relevant evidence from an accused person in order to maintain the confidentiality of a human source, they may claim what is known as ‘public interest immunity’ (PII).

PII is a rule of evidence that is used in court proceedings. The rule provides that relevant evidence is not to be disclosed in court proceedings where disclosure would damage the public interest, and the need to avoid the damage outweighs the accused person’s right to have all of the relevant evidence made available to them.15

Determining PII claims is a balancing exercise for the courts, which must consider whether the public interest in withholding disclosure outweighs the public interest in disclosing the information in accordance with the proper administration of justice.

The use of human source information in the criminal justice system and the rules surrounding the disclosure of such information is discussed in Chapter 14.

The use of Ms Gobbo as a human source

At various times from 1993 and until at least until 2010, Ms Gobbo provided information to Victoria Police about her clients, their associates and other individuals, some of whom were involved in Melbourne’s so-called ‘gangland wars’. During that period, Ms Gobbo was registered as a human source on three occasions, the third time between 2005 and 2009 when she provided information to Victoria Police about many people involved in organised crime, including her clients.

In her evidence to the Supreme Court in the proceedings relating to the DPP’s intended disclosure of her status as a human source, Ms Gobbo estimated that 386 people had been arrested and charged due to the information she had provided to Victoria Police.16 She described a range of motivations that led to her becoming a human source in 2005, including her fear of being charged as an accessory to crimes she was aware of and her wish to rid herself of her clients; in particular, the ‘Mokbel cartel’.17

A chronology of key events related to Ms Gobbo’s interactions with Victoria Police and subsequent events leading to the establishment of the Commission is set out in Chapter 6.

Ms Gobbo’s conduct as a human source is discussed in Chapter 7.

Reviews into the use of Ms Gobbo as a human source

In late 2008, Ms Gobbo assisted Victoria Police to obtain evidence against former Victoria Police officer Mr Paul Dale. Her evidence was used in support of charges that were laid against Mr Dale and Mr Rodney Collins for the murders of Mr Terrence (Terry) Hodson and his wife, Mrs Christine Hodson.18

The proceedings against Mr Dale, and the subsequent proceedings brought against him in 2011 relating to alleged offences arising from evidence he gave to the Australian Crime Commission, triggered events that led to three external reviews into the use of Ms Gobbo as a human source between 2005 and 2009.19 These reviews were not public and did not examine Ms Gobbo’s earlier registrations as a human source because her previous use was not commonly known within Victorian Police until after the Commission was established.

The three reviews are outlined in Figure 1.1 and discussed below.

Figure 1.1: External reviews into the use of Ms Nicola Gobbo as a human source, 2012–16 20

Figure 1.1- External reviews into the use of Ms Nicola Gobbo as a human source, 2012–16

Comrie Review

The first of the confidential external reviews came about after barrister Mr Gerard Maguire provided advice to Victoria Police in October 2011 regarding the disclosure of documents sought by Mr Dale. These documents could have revealed Ms Gobbo’s wider use as a human source by Victoria Police.21

In his advice to Victoria Police, Mr Maguire raised the potential for Ms Gobbo’s clients to seek to challenge their convictions on the basis that the convictions were improperly obtained.22 He recommended that the issues he had identified in his legal advice be raised with Victoria Police senior management.23 This prompted Victoria Police to commission a review into the use of Ms Gobbo as a human source.

On 19 March 2012, Victoria Police engaged former Chief Commissioner Neil Comrie, AO, APM to undertake this review.24 Mr Comrie’s review focused on the use of Ms Gobbo as a human source, and Victoria Police’s policies, control measures and practices relevant to her management between 2005 and 2009.25 He also considered internal changes to human source policies and procedures since the registration of Ms Gobbo in 2005.26

On 30 July 2012, Mr Comrie produced his report entitled Victoria Police Human Source 3838: A Case Review (Comrie Review), in which he made 27 recommendations, including changes to Victoria Police’s human source policies and practices.27 Mr Comrie also endorsed the findings and recommendations of an internal Victoria Police audit of human source management practices, which took place in 2010.28

Following the completion of the Comrie Review, Victoria Police commenced two operations in relation to its use of Ms Gobbo as a human source:

  • Operation Loricated commenced in 2013 as a result of a recommendation of the Comrie Review.29 It was tasked to reconstruct a full electronic file of Victoria Police’s use of Ms Gobbo as a human source, and identify issues regarding her use.30
  • Operation Bendigo commenced in 2014 to coordinate and oversee matters connected to Ms Gobbo, including her protection and management. The operation also established an investigation group to examine five specific cases relating to the use of Ms Gobbo as a human source, in order to identify any instances of legal conflict that might have resulted in a miscarriage of justice.31

The Comrie Review and the implementation of its recommendations are discussed in Chapter 11.

Kellam Report

On 31 March 2014, the Herald Sun published an article entitled ‘Underworld Lawyer a Secret Police Informer’.32 Shortly thereafter, on 10 April 2014, Victoria Police made a notification to the Independent Broad-based Anti-corruption Commission (IBAC) regarding the use of Ms Gobbo as a human source.33

IBAC appointed the Honourable Murray Kellam, AO, QC to examine:

  • the conduct of current and former Victoria Police officers identified in the Comrie Review in relation to the management of Ms Gobbo as a human source
  • Victoria Police’s human source management policies, processes and procedures during the period between September 2005 and January 2009 when Ms Gobbo was a registered human source.34

On 6 February 2015, Mr Kellam produced a confidential report entitled Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Kellam Report).35 In the report, Mr Kellam stated that he was unable to conclude, on the evidence before him, that Victoria Police officers intended to pervert the course of justice. He did conclude, however, that the actions of Ms Gobbo’s police handlers were improper and would—if exposed—likely bring Victoria Police into disrepute and diminish public confidence in it.36 Mr Kellam considered that:

… conduct by individual police officers resulted not from any personal intention to act with impropriety on their part, but from what I consider to be behaviour constituting negligence of a high order on the part of those responsible for their supervision, guidance, instruction and management in the particular prevailing circumstances of obvious attendant risk.37

Mr Kellam found that there had been a serious systemic failure by Victoria Police when managing Ms Gobbo, which put her personal safety at risk.38 Evidence provided to the inquiry indicated that, notwithstanding the need to keep Ms Gobbo’s identity as a human source confidential and confined to a small number of individuals, by 2009 at least 150 Victoria Police officers were aware that she was a human source.39

The Kellam Report also set out examples of information provided by Ms Gobbo to Victoria Police in the cases of nine individuals who had received, or possibly received, legal assistance from Ms Gobbo while she was informing on them to Victoria Police. All nine had been convicted of serious criminal offences.

Mr Kellam made 16 recommendations in his report, including recommendations to improve Victoria Police’s human source management policies. He also recommended that the Chief Commissioner provide a copy of the report and any relevant material to the DPP, so he could consider whether any prosecutions that may have been obtained in breach of legal professional privilege or confidentiality had resulted in a miscarriage of justice due to the use of Ms Gobbo as a human source.40

As part of its inquiry, the Commission was required to inquire into and report on whether Victoria Police’s current human source practices comply with the recommendations of the Kellam Report. This is discussed in Chapter 11.

Champion Report

As recommended by Mr Kellam, the Chief Commissioner provided a copy of the Kellam Report to the then DPP, Mr John Champion, SC, so he could consider whether any relevant prosecutions may have been obtained in breach of legal professional privilege or confidentiality and resulted in miscarriages of justice.41

On 5 February 2016, the DPP produced a confidential report entitled Report of the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Champion Report).42 He considered the cases of the nine individuals identified in the Kellam Report who were charged and prosecuted in Victoria.43The conclusions of the Champion Report regarding the nine cases are summarised in Figure 1.2.

Figure 1.2: Conclusions of the Champion Report 44
Figure 1.2: Conclusions of the Champion Report
From the material available to him, the DPP was unable to conclude that miscarriages of justice had occurred but could not exclude that possibility in the six cases where a lawyer–client relationship existed.45 He believed it was possible that miscarriages of justice had occurred as:
  • it was highly likely that Ms Gobbo had acted improperly in informing against her own clients
  • it was highly likely that she had breached legal professional privilege and the confidence that exists between a lawyer and their client on multiple occasions
  • almost certainly, her actions amounted to serious conflicts of interest.46

The DPP considered that:

… the case-study individuals must be informed of the peculiar and unique role [Ms Gobbo] played in the investigation of their cases. That role was so unique that I cannot accept that had individuals known of that role, and the extent of the information supplied to police that was relevant to their roles, and against their interests, that arguments would not have been made to courts for the exclusion of unfairly obtained evidence.47

The DPP concluded that he was obliged to disclose the possibility of miscarriages of justice having occurred to six of the nine individuals identified in the Kellam Report, all of whom had been represented by Ms Gobbo and had been prosecuted by the DPP.48

In recommending that disclosure be made to the six individuals, the DPP was mindful of Ms Gobbo’s safety once disclosure had occurred. Accordingly, he considered that it was necessary for the Attorney-General of Victoria, the then Department of Justice and Regulation, and Victoria Police to discuss arrangements that could be put in place in relation to the safety of Ms Gobbo.49

Court proceedings against the Director of Public Prosecutions

Following the completion of his report, the DPP wrote to then Chief Commissioner Graham Ashton, AM, APM enclosing a copy of the draft disclosure letter he intended to send to six of the individuals named in the Kellam Report and one other individual whom the DPP had later identified as being potentially affected.50

The DPP’s draft letter would disclose to the seven individuals that their lawyer, in possible breach of legal professional privilege and/or confidentiality, had provided information to Victoria Police about them while acting as a human source.51 To four of the seven individuals, the draft letter would also disclose that the lawyer had provided information to Victoria Police about other people for whom the lawyer had also acted, and that those people had made statements against them.52

The draft letter did not name Ms Gobbo as a human source, but the Chief Commissioner and Ms Gobbo considered the disclosures would have the effect of revealing her identity.53

When Ms Gobbo was registered as a human source in 2005, Victoria Police assured her that her identity as a human source would never be revealed.54 In order to protect her identity, on 10 June 2016, the Chief Commissioner filed proceedings in the Supreme Court in an attempt to prevent the DPP from making his proposed disclosures. This was the start of extensive litigation between the Chief Commissioner, Ms Gobbo and the DPP, which continued until 2018 as outlined in Figure 1.3 below.

Victoria Police considered that the Supreme Court proceedings were necessary and appropriate. It was of the view that the disclosures proposed by the DPP, which would lead to Ms Gobbo being identified, would have ‘potentially catastrophic consequences for her safety and for the safety of her family’.55 The Supreme Court also confirmed that where a human source opposes the release of information, a prosecutor should leave the issue of the applicability of a PII claim to the Court to decide.56

Figure 1.3: Court proceedings between the Chief Commissioner of Victoria Police, Ms Nicola Gobbo and the Director of Public Prosecutions, 2016–18
2016

March: The Director of Public Prosecutions (DPP) provides the Chief Commissioner of Victoria Police with a draft disclosure letter he proposes to send to seven potentially affected individuals.

June: The Chief Commissioner files proceedings in the Supreme Court of Victoria to prevent the DPP from making the disclosures to the seven individuals.

November: Ms Nicola Gobbo joins as a party to the Chief Commissioner’s proceeding and commences a separate proceeding to prevent the DPP from making the disclosures. Both proceedings are heard together by Justice Ginnane.

2017

June: The Supreme Court decides there is no obligation of confidence owed to Ms Gobbo that would prevent the DPP from disclosing the information to the seven individuals, nor is the information subject to a claim of public interest immunity.

July: The Chief Commissioner and Ms Gobbo appeal the decisions to the Court of Appeal of the Supreme Court of Victoria.

November: The Court of Appeal dismisses the appeals. The earlier decisions of the Supreme Court are upheld.

2018

May: The High Court of Australia grants the Chief Commissioner and Ms Gobbo special leave to appeal the Court of Appeal’s decision.

November: The High Court hands down its unanimous decision dismissing the appeals, thereby permitting the DPP to make his proposed disclosures.

December: The High Court releases its decision to the public (not identifying Ms Gobbo) and the Victorian Government announces the establishment of the Commission.

Decision of the Supreme Court

The Chief Commissioner applied to the Supreme Court to prevent the DPP disclosing information from the Kellam Report to the seven individuals. He considered that:

  • the information the DPP proposed to disclose was subject to PII because it might identify or endanger the life of the human source (Ms Gobbo)
  • the DPP should be prevented from sending his disclosure letters or disclosing information contained in those letters or the Kellam Report that would identify or endanger the life of Ms Gobbo, on the grounds of PII.57

Ms Gobbo supported the Chief Commissioner’s application. In November 2016, she filed her own proceeding against the DPP to prevent him from making the disclosures on the grounds that Victoria Police owed her an equitable obligation of confidence and the DPP was bound to preserve the confidentiality of her role as a human source.58

The Chief Commissioner and Ms Gobbo’s applications were heard together in a closed court. The seven individuals concerned were not notified that the proceedings had commenced and took no part in them.

The Court ordered that special counsel be appointed to act as amici curiae to assist the court by advancing arguments that were in the interests of the seven individuals, given that they were not aware of, nor legally represented in, those proceedings.59 The Victorian Equal Opportunity and Human Rights Commission also intervened in the proceedings and made submissions related to the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the interests of the seven individuals in a fair trial.60

After 18 days of hearings, Justice Ginnane handed down two decisions on 19 June 2017, dismissing both proceedings. He found that:

  • the DPP’s proposed disclosures were not subject to PII61
  • there was no obligation of confidence in the identity or role of Ms Gobbo as a human source that would prevent the DPP from making his proposed disclosures.62

Justice Ginnane noted that Victoria Police would endeavour to provide Ms Gobbo and her children with protection once the disclosures were made.63

Appeal proceedings

In July 2017, both the Chief Commissioner and Ms Gobbo applied to the Court of Appeal for leave to appeal the Supreme Court decisions. The Chief Commissioner contended that the Supreme Court had erred in its findings about the degree of risk to Ms Gobbo should the DPP’s disclosures be made, and that Victoria Police could not protect Ms Gobbo or her children without her cooperation and agreement, which she refused to provide.64 Ms Gobbo also raised concerns regarding the risk to her safety and that of her children should the disclosures be made.65

On 21 November 2017, the Court of Appeal dismissed both appeals and upheld the earlier decisions of the Supreme Court.66

On 9 May 2018, the High Court granted the Chief Commissioner special leave to appeal.67 The Chief Commissioner’s grounds of appeal were, in effect, that the Court of Appeal had erred in its failure to appreciate the public interest in Victoria Police honouring its assurances to Ms Gobbo that her identity as a human source would not be disclosed.68

The High Court also granted Ms Gobbo special leave to appeal on the grounds that the Court of Appeal had erred by assuming that she would enter the Witness Protection Program, and by concluding that the public interest favoured the disclosures to the affected individuals, given the gravity of the risk to Ms Gobbo and her children should the disclosures be made.69

The High Court acknowledged the significant risk of harm to Ms Gobbo and her children should she not enter the Witness Protection Program, and Victoria Police’s responsibility for putting her safety at risk by encouraging her to inform on her clients.70 The Court determined, however, that those considerations did not detract from its conclusion—that it was essential to the public interest for the information to be disclosed to the affected individuals.71

The High Court stated:

… the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person’s conviction be re-examined in light of the information. The public interest in preserving [Ms Gobbo’s] anonymity must be subordinated to the integrity of the criminal justice system.72

In a unanimous decision dated 5 November 2018, the seven members of the High Court revoked special leave to appeal.73 The High Court’s decision upheld the decisions of the lower courts, which permitted the DPP to make the disclosures.

The High Court ordered that any information that would reveal the proceedings or the identity of the relevant parties could not be published until 3 December 2018, to allow for appropriate security arrangements for Ms Gobbo to be made.74 The Court also ordered that information from the proceedings could not be published until 5 February 2019, although that date was later extended on the application of the Chief Commissioner to 1 March 2019, as discussed below.75

Announcement of the Commission

On 3 December 2018, the Victorian Government announced that it would establish a royal commission to independently inquire into Victoria Police’s use of Ms Gobbo as a human source.76 That announcement coincided with the public release of the court decisions, which had until then been kept confidential.

The Commission’s Letters Patent

The Commission was formally established by Letters Patent issued by the Governor of Victoria on 13 December 2018. The Honourable Margaret McMurdo, AC, former President of the Court of Appeal of the Supreme Court of Queensland, was appointed as Commissioner and Chairperson and Mr Malcolm Hyde, AO, APM, former Commissioner of South Australia Police, was appointed as Commissioner.

When the Victorian Government drafted the Letters Patent, wider publication of Ms Gobbo’s name or image was prohibited by a court order. The Letters Patent referred to her by the pseudonym ‘EF’, used in the court proceedings.

A royal commission’s terms of reference are specified in its Letters Patent and set out the purpose and scope of an inquiry. The Commission’s terms of reference required it to inquire into and report by 1 July 2019 on the number of, and extent to which, cases may have been affected by the conduct of Ms Gobbo as a human source, and the conduct of Victoria Police officers in managing Ms Gobbo as a human source. The terms of reference also required the Commission to inquire into and report by 1 December 2019 on:

  • the adequacy and effectiveness of Victoria Police’s processes for managing human sources who are subject to legal obligations of confidentiality or privilege (for example, lawyers)
  • the use of information obtained from such human sources in the criminal justice system
  • recommended measures to address systemic or other failures identified by the Commission.

The Commission’s reporting dates and its terms of reference were later amended, for reasons outlined below.

A copy of the Commission’s Letters Patent can be found at Appendix A.

Disclosures by Victoria Police

The confidential Comrie Review, the Kellam Report and Champion Report, and the extensive litigation that followed, which was not held in public, focused only on the period from Ms Gobbo’s registration as a human source on 16 September 2005 until her deregistration on 13 January 2009.77 Accordingly, the Commission’s terms of reference were prepared in December 2018 on the understanding that the inquiry would be directed at Ms Gobbo’s use as a human source during that specific period.

Following its establishment, the Commission received information regarding Victoria Police’s wider use of Ms Gobbo as a human source, and the possible use of other legal practitioners or employees as human sources.

In January 2019, the Commission was told that Victoria Police:

  • had first registered Ms Gobbo as a human source in 1995 and that her first contact with Victoria Police was in 1993 when she was a law student, some 12 years earlier than the Commission had previously understood78
  • had registered Ms Gobbo as a human source for a second time in 199979
  • had conducted a review of its human source holdings and identified seven human source files that required an assessment to determine whether there had been ‘any possible breaches of legal professional privilege’.80

These disclosures had a significant impact on the work of the Commission and its reporting deadlines.

This increased span of inquiry—coupled with the greater volume of information to be examined by the Commission, a multitude of suppression orders in relation to the cases the Commission had to examine, and delays in the provision of information from Victoria Police—made it impossible to report on the first term of reference by 1 July 2019 and the other terms of reference by 1 December 2019.

Amendments to the Commission’s Letters Patent

The Victorian Government amended the Commission’s Letters Patent on 7 February 2019 to reflect some of the matters disclosed to the Commission by Victoria Police and the subsequent resignation of Mr Hyde as Commissioner.

The matters disclosed to the Commission did not cause a direct conflict of interest for Mr Hyde. In light of his past employment with Victoria Police during the extended period of time relevant to the Commission’s inquiry, and his professional associations with police officers likely to be examined, he resigned to avoid any potential adverse perceptions about the impartiality of the Commission.

The Victorian Government also amended the terms of reference to expand the scope of the inquiry. These amendments required the Commission to recommend measures that could be taken to address Victoria Police’s use of any other human sources who were subject to legal obligations of confidentiality or privilege and who came to the Commission’s attention during the course of the inquiry.81

Due to the expansion of the terms of reference and the significant increase in the time period and body of material the Commission was required to examine, the Commission’s final reporting date was initially extended until 1 July 2020, with the Commission to provide an update on its progress by 1 July 2019. The Victorian Government also provided $20.5 million of funding to the Commission, in addition to its original funding allocation of $7.5 million.82

A copy of the amendments to the Commission’s Letters Patent can be found at Appendix B.

Proceedings to protect the identity of Ms Gobbo

When the Victorian Government amended the Commission’s Letters Patent in February 2019, Ms Gobbo’s name and image were still suppressed by an interim High Court order.

In January 2019, the Chief Commissioner initiated new proceedings in the High Court seeking a permanent order prohibiting the publication of the names and images of Ms Gobbo and her children.83

The DPP had by now sent the disclosure letters to the seven individuals who were the subject of the previous court proceedings, so the new proceedings were focused solely on ongoing issues around Ms Gobbo’s safety.84 Victoria Police considered that the wider publication of Ms Gobbo’s name and image would severely prejudice its ability to keep her and her children safe.85

The Commission successfully intervened in the High Court proceedings, and the Court permitted it to disclose Ms Gobbo’s name and image when exercising some of its powers under the Inquiries Act 2014 (Vic) (Inquiries Act).86

The High Court, however, extended the interim non-publication order preventing the publication of Ms Gobbo’s name or identity—which was due to lapse on 5 February 2019—to 1 March 2019, and deferred the decision about whether to make a permanent non-publication order to the Court of Appeal.87

Further Court of Appeal and High Court proceedings

In the Court of Appeal, both the Chief Commissioner and Ms Gobbo sought permanent non-publication orders to prohibit the publication of Ms Gobbo’s name and image, and non-publication orders in relation to certain audio recordings of meetings between her and Victoria Police officers.88 Ms Gobbo also sought orders to prohibit the publication of some personal medical matters and the names and images of her children.89

The DPP, Ms Kerri Judd, QC and the Commonwealth Director of Public Prosecutions opposed the making of permanent orders to suppress Ms Gobbo’s name.90 The Commission intervened in the proceedings, together with some media outlets.

The Court of Appeal refused the applications of the Chief Commissioner and Ms Gobbo.91 In its decision of 21 February 2019, the Court held that it was not satisfied that the making of permanent orders was necessary to protect the safety of Ms Gobbo or her children.92 The Court found that, while there was no doubt that her safety was at considerable risk, Ms Gobbo’s identity as a human source was already in the public domain and the Court noted the ease with which the community could find her name and image.93 The Court of Appeal was not persuaded that publication of Ms Gobbo’s name and image would materially increase the risk to her so as to necessitate a permanent non-publication order.94

Shortly thereafter, Ms Gobbo brought a new application to the High Court for orders to prohibit the publication of the names and images of her children.95 The Commission did not oppose the order sought.96 In his decision, Justice Nettle determined that it was necessary for the High Court to make this non-publication order.97

The High Court’s interim non-publication order lapsed on 1 March 2019, and Ms Gobbo’s name and image have been subsequently published in various media articles.

Progress report and extension of the Commission’s reporting timeline

To inform the community about the status of the inquiry, on 1 July 2019 the Commission produced a progress report on its first six months of work and its approach to the terms of reference.98

In May 2020, the Victorian Government further extended the Commission’s reporting date to 30 November 2020, in light of the COVID-19 pandemic and other challenges that arose during the inquiry. The Government also provided additional funding of $11.5 million.99

Structure of this final report

The Commission’s inquiry took place over a period of almost two years, alongside considerable developments in matters relevant to its work. Some of these developments were still in progress at the time of writing this final report. For example, several people whose cases may have been affected by the use of Ms Gobbo as a human source had lodged appeals with the courts to overturn their convictions, and Victoria Police had commenced several new initiatives related to human source management and disclosure practices, after implementing a new iteration of the Victoria Police Manual—Human Sources in May 2020.100

The matters detailed in this final report are current as at 30 October 2020.

The report is divided into four volumes and one supplementary final report summary. A brief overview of the structure of the four volumes is provided below.

Volume I: The Commission’s approach

Volume I of this report outlines the circumstances leading to the Commission’s establishment and details the importance of the inquiry and how it was conducted. It also provides background information including:

  • a list of relevant police operations and taskforces
  • a list of key people relevant to the use of Ms Gobbo as a human source
  • a chronology of the key events related to Ms Gobbo’s interactions with Victoria Police from 1993 to 2018.

This volume also outlines the Commission’s methodology and approach in respect of its terms of reference. It sets out how the Commission:

  • reviewed cases that may have been affected by the use of Ms Gobbo as a human source, relevant to term of reference 1
  • examined the conduct of current and former Victoria Police officers, relevant to term of reference 2
  • defined and examined the term ‘legal obligations of confidentiality or privilege’, relevant to terms of reference 3, 4 and 5.

Volume II: The use of Ms Gobbo as a human source by Victoria Police

Volume II presents the Commission’s recommendations in relation to terms of reference 1 and 2. In this volume, the Commission:

  • describes how information obtained from Ms Gobbo was used by Victoria Police
  • identifies the number of cases that were potentially affected by Victoria Police’s use of Ms Gobbo as a human source
  • presents its conclusions about the conduct of Ms Gobbo as a human source and the conduct of current and former Victoria Police officers
  • outlines some of the broader organisational conditions and factors within Victoria Police that contributed to the use of Ms Gobbo as a human source.

Volume III: The use of human sources with legal obligations of confidentiality or privilege

Volume III presents the Commission’s recommendations in relation to terms of reference 3 and 5. In this volume, the Commission examines:

  • Victoria Police’s use of any other human sources with legal obligations of confidentiality or privilege that came to the Commission’s attention during the inquiry
  • Victoria Police’s implementation of the Kellam Report recommendations
  • the adequacy and effectiveness of Victoria Police’s current processes for the management of human sources involving legal obligations of confidentiality or privilege
  • opportunities for external oversight of Victoria Police’s management of human sources.

Volume IV: Disclosure, legal profession regulation and work beyond the Commission

Volume IV presents the Commission’s recommendations in relation to terms of reference 4 and 6. In this volume, the Commission examines:

  • the current use and disclosure of human source information in the criminal justice system from human sources who are subject to legal obligations of confidentiality or privilege
  • aspects of legal profession regulation and opportunities to prevent and detect lawyers’ unethical conduct or misconduct.

In this volume, the Commission also outlines some of the challenges it faced during the inquiry, including the limitations of the powers of a royal commission under the Inquiries Act.

It also outlines the need for active oversight of and reporting on the implementation of the Commission’s recommendations, to ensure they are implemented in a timely way, in the manner in which the Commission intended.

Endnotes

1 The DPP’s draft letter to the seven potentially affected individuals did not name Ms Gobbo as a human source, though the Chief Commissioner and Ms Gobbo contended in the court proceedings that the DPP’s letter could reveal Ms Gobbo’s identity: see AB & EF v CD [2017] VSC 350, [7] (Ginnane J).

2 AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1, 4 [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

3 AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1, 4 [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

4 The right to a fair hearing is a longstanding and fundamental principle of the criminal justice system, now enshrined in the Charter: Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24–25. See also AB & EF v CD [2017] VSC 350, [160] (Ginnane J); Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 pt 2 r 3; Legal Profession Uniform Conduct (Barristers) Rules 2015 r 35.

5 AB & EF v CD [2017] VSC 350, [418] (Ginnane J).

6 Orman v The Queen (2019) 59 VR 511, 513 [12], 514 [16] (Maxwell P, Niall and Emerton JJA).

7 See J Mitchell Miller, ‘Becoming an Informant’ (2011) 28(2) Justice Quarterly 203, 205; Clive Harfield, ‘Police Informers and Professional Ethics’ (2012) 31(2) Criminal Justice Ethics 73, 73.

8 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 2.

9 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 4 [1.19].

10 See AB v CD & EF [2017] VSCA 338, [45] (Ferguson CJ, Osborn and McLeish JJA).

11 The common law position is that the identity of a human source must not be disclosed in legal proceedings, except where the disclosure is required for the defence of an accused person. This is discussed in Chapter 14.

12 See AB v CD & EF [2017] VSCA 338, [47] (Ferguson CJ, Osborn and McLeish JJA).

13 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(a).

14 See, eg, Grey v The Queen [2001] HCA 65; Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68.

15 Evidence Act 2008 (Vic) ss 130, 131A; Sankey v Whitlam (1978) 142 CLR 1, 38 (Gibbs ACJ); see AB v CD & EF [2017] VSCA 338, [42]–[59] (Ferguson CJ, Osborn and McLeish JJA).

16 In a letter to Assistant Commissioner Stephen Fontana dated 30 June 2015, Ms Gobbo estimated that 386 people had been arrested and charged due to the information she had provided to Victoria Police. A copy of that letter is published in the Supreme Court’s decision: AB & EF v CD [2017] VSC 350, [19] (Ginnane J).

17 AB & EF v CD [2017] VSC 350, [18] (Ginnane J).

18 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 22–3 [3.106], 63–4 [8.3]–[8.10].

19 See, eg, Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 63 [8.3], 64 [8.10].

20 Based on Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012); Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015); John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016).

21 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 64 [8.10].

22 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 75, 12 [54].

23 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 75, 12 [55].

24 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 47 [5.17].

25 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 6.

26 See Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 478 [5.19]–[5.20].

27 Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012).

28 In August 2010, the Victoria Police Corporate Management Review Division completed a review of Victoria Police human source management practices: Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 7.

29 Mr Comrie recommended that Victoria Police reconstruct the full interpose file to present a complete, factual, sequential and accountable record of its use of Ms Gobbo as a human source: Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 12 (Recommendation 1); Exhibit RC1273b Statement of Mr Tim Cartwright, 12 February 2020, 11 [68].

30 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 65 [8.16]–[8.17]; Exhibit RC1067b Statement of Mr Findlay (Fin) McRae, 13 November 2019, 3 [1.22]; AB & EF v CD [2017] VSC 350, [36] (Ginnane J).

31 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 65–6 [8.18]–[8.19]; Exhibit RC1273b Statement of Mr Tim Cartwright, 17 December 2019, 16–17 [104]; Exhibit RC1067b Statement of Mr Findlay (Fin) McRae, 13 November 2019, 3 [1.23]–[1.24].

32 Anthony Dowsley, ‘Underworld Lawyer a Secret Police Informer’, Herald Sun (Melbourne, 31 March 2014).

33 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 1 [1], [4]. The notification to IBAC by Victoria Police was made pursuant to section 57(2) of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic). The Act requires the Chief Commissioner of Victoria Police to notify IBAC of any complaint received by the Chief Commissioner about corrupt conduct or misconduct by a Victoria Police employee.

34 Mr Kellam was appointed by IBAC to lead the inquiry because the then Commissioner of IBAC, Mr Stephen O’Bryan, QC, declared himself unable to act because of a perceived conflict of interest: Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 1 [1], [4].

35 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015).

36 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 80. Mr Kellam noted that a full examination of the prosecutions of various clients of Ms Gobbo required to reach such a conclusion was beyond the jurisdiction of IBAC and his inquiry.

37 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 80–1.

38 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 81.

39 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 84 n 176.

40 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 91 (Recommendation 12).

41 John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016) 6 [28].

42 John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016).

43 John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016) 5 [22].

44 Based on John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016) 5 [23]–[27], 31 [182]–[183].

45 John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016) 33 [201]–[203]. The DPP considered that it was highly likely there was more relevant material within police records to which he did not have access: John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016) 27 [155].

46 AB & EF v CD [2017] VSC 350, [56] (Ginnane J).

47 John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016) 35 [217].

48 See, John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016) 35 [212]–[217].

49 John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016) 36 [224].

50 AB & EF v CD [2017] VSC 350, [56] (Ginnane J). Between 10 March and 31 May 2016 there was a series of correspondence between the DPP, Victoria Police and IBAC in relation to the DPP’s proposed disclosure: see Responsive submission, Victoria Police, 24 August 2020, [147.2]–[147.11].

51 AB & EF v CD [2017] VSC 350, [5] (Ginnane J).

52 AB & EF v CD [2017] VSC 350, [6] (Ginnane J).

53 AB & EF v CD [2017] VSC 350, [7] (Ginnane J).

54 In his reasons, Ginnane J accepted Ms Gobbo’s evidence that Victoria Police assured her that her identity as a human source would be kept confidential: AB & EF v CD [2017] VSC 350, [23]–[24], [28].

55 Responsive submission, Victoria Police, 24 August 2020, [147.4], [147.12].

56 AB & EF v CD [2017] VSC 350, [88] (Ginnane J); Responsive submission, Victoria Police, 24 August 2020, [147.12].

57 AB & EF v CD [2017] VSC 350, [10] (Ginnane J).

58 AB & EF v CD [2017] VSC 350, [10]–[11] (Ginnane J); EF v CD [2017] VSC 351, [3]–[4] (Ginnane J). An equitable obligation of confidence can arise where, in the absence of a formal contract, there is an understanding that information is to be treated on a limited basis, in this case, confidentially. Breach of an equitable obligation of confidence occurs when there is an unauthorised use or disclosure of that information: Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice (Report No 108, May 2008) vol 1, 565 [15.127].

59 AB & EF v CD [2017] VSC 350, [63]–[68] (Ginnane J).

60 AB & EF v CD [2017] VSC 350, [69]–[70] (Ginnane J).

61 AB & EF v CD [2017] VSC 350, [422] (Ginnane J).

62 EF v CD [2017] VSC 351, [38] (Ginnane J).

63 AB & EF v CD [2017] VSC 350, [421] (Ginnane J).

64 See AB v CD & EF [2017] VSCA 338, [73] (Ferguson CJ, Osborn and McLeish JJA).

65 AB v CD & EF [2017] VSCA 338, [74] (Ferguson CJ, Osborn and McLeish JJA).

66 AB v CD & EF [2017] VSCA 338, [214], [231] (Ferguson CJ, Osborn and McLeish JJA).

67 AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1, 4 [6] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

68 AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1, 4 [6] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

69 AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1, 4 [6] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

70 AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1, 5 [11] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

71 AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1, 5 [11] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

72 AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1, 5 [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

73 AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1, 5 [13] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

74 AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1, Order 3.2 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

75 AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1, Orders 3.1, 5 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). The High Court also ordered that the Court’s file remain closed until 5 February 2019: see AB v CD & EF [2019] VSCA 28, [5] (Ferguson CJ, Beach and McLeish JJA).

76 Victorian Premier, Attorney-General, Minister for Police and Emergency Services, ‘Royal Commission into Management of Informants’ (Media Release, 3 December 2018).

77 See, eg, AB & EF v CD [2017] VSC 350, [15] (Ginnane J).

78 The information was provided to the Commission in response to a Notice to Produce issued by the Commission to Victoria Police on 23 January 2019: see Transcript of Opening Statements, 15 February 2019, 10.

79 The information was provided to the Commission in response to a Notice to Produce issued by the Commission to Victoria Police on 23 January 2019: see Transcript of Opening Statements, 15 February 2019, 19.

80 In January 2019, the Commission learned that Victoria Police had identified six human source files that required an assessment and that one further human source file had been previously disclosed by Victoria Police to IBAC in March 2018: Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 78; Letter from Department of Justice and Community Safety to the Commission, 10 January 2019.

81 Term of reference 5a was inserted into the Letters Patent when it was amended on 7 February 2019.

82 Victorian Premier, ‘Statement on The Royal Commission into Informants’ (Media Release, 6 February 2019).

83 See AB v CD & EF [2019] VSCA 28, [5] (Ferguson CJ, Beach and McLeish JJA).

84 AB v CD & EF [2019] VSCA 28, [3] (Ferguson CJ, Beach and McLeish JJA).

85 See AB v CD & EF [2019] VSCA 28, [21] (Ferguson CJ, Beach and McLeish JJA).

86 On 11 February 2019, the High Court permitted the Commission to issue notices pursuant to section 17 of the Inquiries Act 2014 (Vic) that disclosed Ms Gobbo’s name. A similar order was made in the Court of Appeal on 12 February 2019: see AB v CD & EF [2019] VSCA 28, [7], [42] (Ferguson CJ, Beach and McLeish JJA).

87 The order was made in the High Court by Justice Nettle on 25 January 2019: see AB v CD & EF [2019] VSCA 28, [5]–[6] (Ferguson CJ, Beach and McLeish JJA).

88 AB v CD & EF [2019] VSCA 28, [11] (Ferguson CJ, Beach and McLeish JJA).

89 AB v CD & EF [2019] VSCA 28, [11] (Ferguson CJ, Beach and McLeish JJA).

90 The DPP and the Commonwealth Director of Public Prosecutions also opposed making orders prohibiting the publication of the audio recordings, but did not oppose making orders prohibiting the publication of Ms Gobbo’s image, medical practitioners and medical issues, and the names and images of her children: AB v CD & EF [2019] VSCA 28, [34], [39] (Ferguson CJ, Beach and McLeish JJA).

91 AB v CD & EF [2019] VSCA 28, [90] (Ferguson CJ, Beach and McLeish JJA).

92 AB v CD & EF [2019] VSCA 28, [76] (Ferguson CJ, Beach and McLeish JJA).

93 AB v CD & EF [2019] VSCA 28, [73] (Ferguson CJ, Beach and McLeish JJA).

94 AB v CD & EF [2019] VSCA 28, [77] (Ferguson CJ, Beach and McLeish JJA).

95 AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6, [1] (Nettle J).

96 AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6, [20] (Nettle J).

97 Publication of the names and images of Ms Gobbo’s children is prohibited by a High Court order until publication of the Commission’s final report, and thereafter for a period of not less than 15 years: Order of Nettle J in AB (a pseudonym) v CD (a pseudonym) (High Court of Australia, M73/2018 & M74/2018, 27 February 2019).

98 Royal Commission into the Management of Police Informants (Progress Report, July 2019).

99 Victorian Attorney-General, ‘Statement on Extension for Royal Commission’ (Media Release, 5 May 2020).

100 The Human Source Policy was finalised in April 2020 but came into effect in May 2020: Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020.

Reviewed 07 December 2020

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