Chapter 5

Introduction

The Commission’s terms of reference required both an investigation of certain past events (terms of reference 1 and 2), and an examination of current processes relating to the use of human sources with legal obligations of confidentiality or privilege, with a view to recommending measures to avoid any identified failures in the future (terms of reference 3–5).¹ This chapter looks at how the Commission approached its investigative functions in relation to past events.

The Commission’s two primary investigative functions were to inquire into and report on:

• the number of cases that may have been affected by the conduct of Ms Nicola Gobbo as a human source and the extent to which they have been affected (term of reference 1)
• the conduct of current and former Victoria Police officers in their disclosures about and recruitment, handling and management of Ms Gobbo as a human source (term of reference 2).

These two functions were inextricably linked. Ms Gobbo’s conduct as a human source could only properly be understood by analysing the way in which Victoria Police recruited, handled and managed her in that capacity. Equally, the conduct of Victoria Police and its officers in their use of Ms Gobbo as a human source, and the non-disclosure of that fact, linked directly to whether cases may have been affected.

Undertaking the Commission’s primary investigative functions entailed a factual exercise—establishing who did what and when. It also entailed a legal exercise—determining whether the conduct of Ms Gobbo and Victoria Police may have ‘affected’ cases in which they were involved, and whether that conduct may have breached or fallen short of the conduct that their legal, ethical and professional duties demanded.

Importantly, the Commission’s role was not to make binding or conclusive determinations about whether individual cases were in fact affected by the conduct of Ms Gobbo and Victoria Police. This is the role of the courts. Instead, after having considered the evidence it was able to assemble, the Commission has identified how individual cases may have been affected.

Nor was it the Commission’s role to find any individual guilty of a criminal offence or of professional misconduct. This is the role of investigatory and prosecution agencies. As will become apparent later in this report, the Commission has, however, concluded that the conduct of Ms Gobbo and certain Victoria Police officers breached or fell short of the requirements of their professional duties. Drawing on the evidence and complete, unredacted submissions made by Counsel Assisting the Commission and parties, the Commission is satisfied that the allegations about the conduct of Ms Gobbo and certain Victoria Police officers warrant a comprehensive and independent investigation to determine whether there is sufficient evidence to bring any criminal charges and, in the case of certain current Victoria Police officers, any disciplinary action.

This chapter explains the legal principles that guided the Commission’s investigative functions, and how the Commission applied those principles to define the parameters of its inquiry and the nature of its findings. Specifically, it outlines:

• the key legal principles that apply to appeals in criminal proceedings and that informed the Commission’s deliberations regarding whether individual cases may have been affected by the conduct of Ms Gobbo’s conduct as a human source
• the laws and legal principles that apply to the conduct of lawyers and police officers and that informed the Commission’s assessment of the conduct of Ms Gobbo and Victoria Police officers
• the Commission’s role and approach to the consideration of potential findings of criminal conduct and other misconduct, including how it identified potentially affected cases and afforded parties procedural fairness.

These matters are set out in turn below.

The Commission’s analysis and findings in relation to its investigative functions are contained in Chapters 7, 8 and 9 of this final report.

This chapter should also be read in conjunction with Chapter 2, which outlines key concepts and legal principles that underpin the criminal justice system, and Chapter 3, which explains the processes that the Commission followed in conducting the inquiry.

Legal principles: potentially affected cases

The Commission was tasked with identifying the number of cases that ‘may have been affected’ by the conduct of Ms Gobbo as a human source (and, by extension, the related conduct of Victoria Police officers), and the extent to which those cases may have been affected. The Letters Patent establishing the Commission noted that appeal proceedings had been brought by three individuals whose convictions were alleged to have been affected by Ms Gobbo’s conduct, and that it was anticipated that other cases may have been affected and further proceedings could be commenced.

Notably, at the time of finalising this report, the Court of Appeal of the Supreme Court of Victoria had already determined two such appeals: those of Mr Faruk Orman and Mr Zlate Cvetanovski.²

In Orman v The Queen, the Court of Appeal concluded that Ms Gobbo’s conduct as a human source while acting as Mr Orman’s lawyer ‘subverted Mr Orman’s right to a fair trial, and went to the very foundations of the system of a criminal trial. There was, accordingly, a substantial miscarriage of justice’.³ The Victorian Director of Public Prosecutions (DPP) conceded that in her role as a human source, Ms Gobbo pursued the presentation of the principal evidence against Mr Orman on the charge of murder. The Court allowed the appeal, set aside the conviction, declined to order a re-trial, and ordered a judgment of acquittal (not guilty) be entered for Mr Orman.⁴

In Cvetanovski v The Queen, the Court of Appeal found that there had been a substantial miscarriage of justice in Mr Cvetanovksi’s trial for drug trafficking, and set aside his conviction.⁵ The miscarriage of justice related to the non-disclosure, at the trial, of information about the key witness who gave evidence against Mr Cvetanovski. As conceded by the DPP, Ms Gobbo, who was Mr Cvetanovski’s lawyer, had been providing information to police in her role as a human source, had persuaded the key witness in the trial to give evidence against her client, and had (along with Victoria Police) been providing financial assistance to the witness. The Court allowed the appeal, set aside the conviction, declined to order a re-trial and ordered a judgment of acquittal be entered for Mr Cvetanovski.⁶

The Court of Appeal considered the particular circumstances leading to Mr Orman’s and Mr Cvetanovski’s convictions only. Other cases may have been affected in different ways, according to their own facts and circumstances. It will be for the Court of Appeal to decide in any future appeals whether the facts and circumstances of those cases have given rise to a substantial miscarriage of justice.

As discussed in Chapter 1, in AB & EF v CD, the Supreme Court of Victoria decision relating to the use of Ms Gobbo as a human source and the DPP’s proposed disclosure of information to seven potentially affected individuals, Justice Ginnane concluded that the potentially affected individuals in those cases had an argument that their convictions involved a substantial miscarriage of justice:

The possible grounds include that because of the conduct of Victoria Police and [Ms Gobbo], they did not receive a trial as required by the criminal justice system and that the trials involved an abuse of process, because their legal counsel did not provide independent advice. The requirements of a fair trial include that counsel will provide independent advice to a client and will not have separate obligations to the police who have brought the prosecution.⁷

In this context, and as noted later in this chapter, the Commission interpreted the phrase ‘may have been affected’ in term of reference 1 as referring to whether the conduct in question provided a reasonably arguable ground of appeal against conviction in a particular case, and more specifically whether it could have caused a substantial miscarriage of justice.

The following section outlines some of the key principles that apply to appeals in criminal proceedings and types of error in the trial process that may result in a successful appeal. It is not intended to provide a comprehensive summary of the law relating to appeals, but refers to principles and past decisions that are likely to be relevant to the events under examination by the Commission, and that have informed the Commission’s deliberations.

Appeal processes and grounds

The appeal process is a fundamental feature of our criminal justice system—it allows for any substantive or procedural errors in the trial process to be identified and remedied. In doing so, it promotes the safety of verdicts, adherence to fair trial principles, and the integrity of the justice system as whole. Fair trial principles and their role in upholding the integrity of the justice system are explained in Chapter 2.

The law provides for convictions and sentences to be reviewed and overturned if certain matters are established. The precise processes, grounds and outcomes differ according to whether an individual is appealing against their conviction (including for a second or subsequent time), making a petition for mercy (which is referred to the Court of Appeal for determination as an appeal), or appealing against their sentence.

This chapter focuses on the principles underpinning appeals against conviction, as that is the pathway likely to be of most direct relevance to any person whose case may have been affected by the conduct of Ms Gobbo and Victoria Police.⁸

Broadly, the court hearing an appeal against conviction or a referral of a petition of mercy is required to determine whether there has been a ‘substantial miscarriage of justice’. This concept is explained below.

In Victoria, a convicted person may, with leave, appeal to the Court of Appeal against their conviction under section 274 of the Criminal Procedure Act 2009 (Vic). On a successful appeal, the Court of Appeal can order a new trial, enter a judgment of acquittal, or substitute the original conviction with a conviction for a different offence.⁹

The Court of Appeal must allow the appeal if the appellant (the person lodging the appeal) satisfies the court that:

• the verdict of the jury is unreasonable or cannot be supported having regard to the evidence
• there has been a substantial miscarriage of justice as the result of an error or an irregularity in, or in relation to, the trial
• there has been a substantial miscarriage of justice for any other reason.¹⁰

The first of these grounds has limited application to the circumstances the Commission considered. The following sections therefore focus on the second and third grounds.

Substantial miscarriage of justice

There is no single or universal definition of what amounts to a substantial miscarriage of justice for the purpose of a criminal appeal.¹¹ The circumstances giving rise to a substantial miscarriage of justice are ‘too numerous and too different to permit prescription of a single test’.¹² Generally, however, a substantial miscarriage of justice will concern a departure from or interference with the rules, principles or processes that underpin the integrity of the criminal justice system, rather than an assessment of the appellant’s guilt or innocence:

… the integrity of the criminal process is the most important consideration for courts which have to hear appeals against conviction. Both the innocent and the guilty are entitled to fair trials. If the trial process is not fair; if it is distracted by deceit or by material breaches of the rules of evidence or procedure, then the liberties of all are threatened.¹³

In this way, there is a strong link between the notion of a substantial miscarriage of justice and fair trial principles. Circumstances in which an accused person has been deprived of a fair trial may amount to a substantial miscarriage of justice, and in turn result in a successful appeal against conviction.¹⁴ Similarly, circumstances found to be an abuse of the court’s process may also amount to a substantial miscarriage of justice.¹⁵

Conduct that undermines public confidence in the administration of justice may also provide grounds for an appeal against conviction. The principle that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’ requires courts, lawyers and State agencies such as the police to ensure the courts’ processes are used fairly.¹⁶ It also requires lawyers and investigating authorities to perform their functions with due regard to their legal duties and obligations.¹⁷

Even if the Court of Appeal concludes that a conviction was inevitable—that is, that the jury would have convicted the accused person even if the error or irregularity in question had not occurred—the appeal may still succeed if the court finds that the error or irregularity amounted to a substantial miscarriage of justice.¹⁸

Challenging the integrity of a guilty plea after conviction

An appeal against a conviction may still succeed even if the appellant pleaded guilty at first instance,¹⁹ although they must demonstrate ‘very exceptional circumstances’.²⁰ The appellant must show that their guilty plea was not due to a consciousness of guilt but instead was due to another objective factor.²¹

Factors that may satisfy a court that there has been a miscarriage of justice relating to a guilty plea include a failure to provide adequate advice to the accused person about the nature of the charges,²² and applying improper pressure on the accused person to plead guilty.²³

In AB & EF v CD, Justice Ginnane observed that there is ‘a duty on legal practitioners and others associated with prosecutions not to do anything that corrupts or subverts the administration of justice, and … a conviction following a guilty plea can also be quashed by application of that principle’.²⁴ This conclusion was endorsed by the Court of Appeal in AB v CD & EF.²⁵

The right of appeal in these circumstances reflects the importance of ensuring that an accused person has sound and independent legal advice and is not deprived of free choice when deciding whether to plead guilty or not guilty.²⁶

Examples of conduct and circumstances that may amount to a substantial miscarriage of justice

As noted above, there are numerous factors that may amount to a substantial miscarriage of justice. They range from an inadvertent failure to observe an apparently minor procedural requirement, right through to deliberate misconduct by those responsible for upholding the proper administration of justice. In some instances, the fact that a procedural or other error has occurred may, in and of itself, be sufficient to set aside a conviction (such as an error in selecting a jury).²⁷ In others, it may be the failure to disclose the error or other impropriety to the accused person, depriving them of the opportunity to raise an objection to the issue or to take steps to adopt a different approach to the trial.

This section outlines some of the factors that courts have previously found sufficient to allow an appeal against a conviction and that are relevant to the matters under consideration by the Commission (noting that some of the cases were decided in jurisdictions other than Victoria).

Circumstances found to have constituted a substantial miscarriage of justice include:

• issues relating to the accused person’s legal representation, such as the incompetence of their lawyer, their lawyer breaching their duties to the court and to the client, or a perception that their lawyer may not have been acting independently, in the client’s best interests
• failure by the prosecution to disclose all relevant information to the defence
• inequality of arms; for example, where the prosecution had possession of information that was wrongfully provided to it
• where evidence used in the trial was improperly or illegally obtained
• where there is fresh evidence that, if it had been available to the jury, is likely to have resulted in an acquittal.

These matters are discussed in turn below.

Deprivation of competent and independent counsel

As discussed in Chapter 2, an important element of an accused person’s right to a fair trial is the right to legal representation. A lack of competent and/or independent legal representation at trial may provide grounds for a successful appeal against conviction if it can be shown that this deficiency resulted in a substantial miscarriage of justice.

Absence of legal representation

In cases involving serious offences, a trial may be unfair if the accused person does not have legal representation. In Dietrich v The Queen, the High Court of Australia concluded that there had been a miscarriage of justice because the accused person did not have legal representation at the trial, and ordered that his conviction be set aside and that he be granted a new trial.²⁸

Errors and omissions by defence counsel

The manner in which defence counsel conducted the trial may be relevant to whether the trial was a fair one:

In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice… [T]he failure of counsel to conduct the defence properly is inconsistent with the notion of a fair trial according to law.²⁹

In general, an accused person is bound by the way in which their counsel conducted the trial; however:

… there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.³⁰

Acts and omissions (failures to act) by defence counsel may, in some circumstances, be found to have led to a substantial miscarriage of justice.³¹ A court is unlikely to allow an appeal on this basis if the conduct complained of was undertaken for a legitimate forensic purpose.³² If, however, the conduct complained of relates to something other than a forensic choice, there is a higher likelihood that an appeal will succeed.³³ Such conduct might include a critical error such as omitting to call a material witness, failing to argue that certain evidence should be excluded, introducing evidence that was prejudicial to the accused person’s interests, or not pursuing available arguments about the prosecution’s case.³⁴

In Nudd v The Queen, Justice Kirby observed that errors by counsel may occur as a result of inexperience, a failure to study the applicable law, or ‘in some cases, personal characteristics that render that practitioner prone to misbehaviour, ineptitude or inattention’.³⁵ His Honour further noted that:

Sometimes, rarely, the misbehaviour, errors or incompetence in the legal representation of an accused at trial may be so egregious, frequent or obvious as, without more, to amount to a miscarriage of justice.³⁶

Breach of duties to the court and client

In light of the central role that the legal profession plays in upholding the proper administration of justice, a breach of a lawyer’s duties to the court or their client (including the duties not to mislead the court, to maintain privilege and to avoid conflicts of interest) may cause or contribute to a miscarriage of justice.

In Tuckiar v The King, the High Court set aside the accused person’s conviction for murder (and death sentence) for several reasons, including that his lawyer had, in breach of his professional duties, disclosed privileged communications with the accused person to the trial judge in private and openly in court.³⁷ The Court described the actions of the lawyer as ‘wholly indefensible’ and ‘a grave mistake’, which contributed to the trial miscarrying.³⁸ The Court observed that:

It was [the lawyer’s] paramount duty to respect the privilege attaching to the communication made to him as counsel … he was not entitled to divulge what he had learnt from the prisoner as his counsel. Our system of administering justice necessarily imposes upon those who practise advocacy duties which have no analogies, and the system cannot dispense with their strict observance.³⁹

As noted above, in Orman v The Queen, the Court of Appeal concluded that in pursuing the presentation of the principal evidence against her own client, Ms Gobbo’s conduct was self-evidently ‘a fundamental breach of her duties to Mr Orman and to the Court’.⁴⁰ Her actions subverted Mr Orman’s right to a fair trial, went to the very foundations of the system of criminal trial, and accordingly, resulted in a substantial miscarriage of justice.⁴¹

Perceived deprivation of independent counsel

In R v Szabo, the Court of Appeal of the Supreme Court of Queensland allowed an appeal against conviction on the basis that the failure of the defence barrister to disclose to his client that he had previously had an intimate relationship with the prosecutor amounted to a perceived injustice against the client.⁴²The issue was not that the defence barrister had failed to conduct the defence competently or vigorously (the court found that his conduct of the defence was otherwise above reproach), nor was there any reason to suspect ‘any collusion, connivance or lack of dedication to his task’ by defence counsel.⁴³ The Court was instead concerned that his non-disclosure of the relationship might have created reasonable suspicion about whether he had acted with fearless independence, and whether the accused person had received a fair trial.⁴⁴

The Court noted that barristers play a vital role in the administration of justice, and in promoting public confidence in the justice system:

Litigants see members of the bar conducting themselves as officers of the Court, owing a special duty to the Court. Just as the Court expects fearlessly independent presentation by counsel, so the client expects that subject to counsel’s supervening duty to the Court, counsel will with fearless independence promote the client’s cause.⁴⁵

The Commission notes that in R v Szabo and the cases relating to incompetence of counsel discussed above, the conduct of the accused person’s lawyer was found to have contributed to a miscarriage of justice even though it involved actions or omissions generally attributable to inadvertence or inexperience, rather than conduct intentionally aimed at undermining the defence case. In R v Szabo, Justice Thomas expressed the view that conduct of the latter kind would be sufficient to justify a conviction being set aside:

The disquiet that arises from the fear that counsel may have failed in their duty … arises out of concern that a person with an important role in the trial may not have discharged it adequately in favour of the client. If a reasonable suspicion arises that defence counsel has ‘run dead’ or colluded with the Crown prosecutor contrary to the interests of the accused or for some extraneous purpose failed to play the proper role of defence counsel, that would reveal a seriously unfair contest, and would in my view demonstrate a miscarriage of justice sufficient to require the conviction to be set aside.⁴⁶

Non-disclosure of relevant evidence

As discussed in Chapters 2 and 14, the prosecution has a duty to disclose all relevant material to the defence, including any material that may assist the defence case or undermine the prosecution case. This duty is regarded as fundamental to the fairness of a criminal trial, and is owed to the court, not the accused person.⁴⁷ The duty of disclosure extends to material obtained by investigating police, even if that material is not known to the prosecutor.⁴⁸ The duty of disclosure continues even after the proceedings have been finalised.⁴⁹ This means that if, after a person has been convicted, the prosecution becomes aware of important information that is central to the case, it must still be disclosed to the accused person.

A failure by the prosecution to disclose all relevant evidence to an accused person may result in a miscarriage of justice, and a guilty verdict being set aside on appeal.⁵⁰ The court will consider whether the failure to disclose the material in question caused the trial to be unfair and therefore resulted in a substantial miscarriage of justice.⁵¹ A failure to disclose relevant material can amount to a substantial miscarriage of justice in this way:

Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence.⁵²

As noted above, in Cvetanovski v The Queen, the DPP conceded that the non-disclosure of payments made by Victoria Police and Ms Gobbo to the key prosecution witness meant that the accused person, Mr Cvetanovski, was deprived of the opportunity to test the evidence being presented against him, and the jury was unable to make a proper assessment of the witness’ credibility.⁵³ Mr Cvetanovski had also argued that because he was unaware that Ms Gobbo was a human source, he was unable to raise the issue of Ms Gobbo’s breaches of duty to him as her client.⁵⁴ Reiterating that ‘the principles governing disclosure are fundamental to the integrity of criminal trials and to the maintenance of public confidence in the administration of justice’, the Court of Appeal concluded that there had accordingly been a substantial miscarriage of justice.⁵⁵

Inequality of arms

In Lee v The Queen, the High Court set aside the appellants’ convictions and ordered a new trial on the basis that at the time of the trial, the prosecution had possession of information that had been wrongfully released to it.⁵⁶ The prosecution had obtained a copy of transcripts of the accused persons’ evidence before the New South Wales Crime Commission even though there was a prohibition on that evidence being released to police and prosecutors because it might prejudice the fair trial of a person who may later be charged with an offence. The High Court found that the appellants’ trial ‘was altered in a fundamental respect by the prosecution having the appellants’ evidence before the Commission in its possession’.⁵⁷

The High Court found that:

The circumstances of this case involve the wrongful release and possession of evidence. However, its effects cannot be equated with the use of evidence illegally or improperly obtained… Rather, these appeals concern the effect of the prosecution being armed with the appellants’ evidence. It is not necessary to resort to questions of policy to determine whether a miscarriage of justice has occurred. What occurred in this case affected this criminal trial in a fundamental respect, because it altered the position of the prosecution vis-à-vis the accused. There was no legislative authority for that alteration. Indeed, it occurred contrary to the evident purpose of s 13(9) of the [New South Wales Crime Commission Act 1985], directed to protecting the fair trial of examined persons.⁵⁸

The High Court concluded that the prosecution should have alerted the trial judge to the fact that they had received the transcripts, so that the judge could have ordered a temporary stay, while another prosecutor and other prosecution personnel, not privy to the evidence, were engaged.⁵⁹ It was of no relevance that the defence had not objected to the trial proceeding—it was the responsibility of the prosecution to ensure the case was presented properly and with fairness to the accused person.⁶⁰

Improperly or illegally obtained evidence

If the conviction of the accused person was based on evidence improperly or illegally obtained, in circumstances where the accused person, and the court, were unaware of that fact, the accused person may have been deprived of a fair trial. This is due to the accused person having been deprived of the opportunity to object to the admissibility of the evidence.

Section 138(1) of the Evidence Act 2008 (Vic) provides that evidence that was obtained improperly or in contravention of an Australian law is not admissible, unless the court decides that the desirability of admitting it outweighs the undesirability of permitting its use. This provision recognises the public interest in the criminal justice system discouraging the use of unlawfully or improperly obtained evidence and unlawful conduct by those whose task it is to enforce the law.⁶¹ By giving courts the discretion to admit such evidence, this provision also recognises the public interest in sometimes having important and relevant evidence before the court, even if unlawfully obtained.

In determining whether to admit disputed evidence, the court engages in a balancing exercise:

… the weighing against each other of two competing requirements of public policy, namely, the public interest in admitting reliable and probative evidence so as to secure the conviction of the guilty and the public interest in vindicating individual rights and deterring misconduct and maintaining the legitimacy of the system of criminal justice.⁶²

As part of its balancing exercise, the court must take into account several specified considerations, including the gravity of the impropriety or contravention and whether the impropriety or contravention was deliberate or reckless or contrary to a person’s rights under the International Covenant on Civil and Political Rights.⁶³

In this context, when scrutinising the conduct of police in gathering evidence, courts have considered not only the legality or propriety of the specific methodologies in question, but also the attitudes of the police to their obligations:

When evidence is improperly or illegally obtained by police officers … the attitude of those officers to the rule of law, as displayed during the relevant investigation and any associated prosecution, before, during and after the obtaining of the evidence, must be relevant to the exercise of the discretion conferred by s 138.⁶⁴

As part of this balancing exercise, the court can also consider how widespread the conduct giving rise to the impropriety is within the relevant law enforcement organisation. This can have a bearing on the seriousness of the impropriety.⁶⁵

There are two types of evidence referred to in section 138: evidence that was ‘improperly’ obtained, and evidence obtained ‘in contravention of an Australian law’. Improperly obtained evidence involves conduct that is broader than a contravention of law and should not be narrowly construed.⁶⁶ It includes conduct by police that:

… is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, among other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community.⁶⁷

Some deceptive tactics by police, which do not involve illegal conduct, may be considered legitimate.⁶⁸ Evidence obtained in contravention of an Australian law includes contravention of a law of the Commonwealth, a state or territory, and of the common law.⁶⁹

The chain of causation between the impropriety or illegality and the evidence sought to be adduced (offered in evidence) may be direct or indirect, provided that the chain represents a course of rational, inferential reasoning.⁷⁰ The link does not need to be immediate. It may arise through various steps:⁷¹

If the impropriety or contravention bears only a distant causal relationship to the evidence, the public interest in deterring impropriety or contravention of the law by obtaining evidence in the manner concerned might be thought more likely to be outweighed by the public interest in admitting probative evidence. Conversely, exclusion of evidence closely connected to the impropriety or contravention might more obviously serve the public interest in deterring the obtaining of evidence in that manner.⁷²

Fresh evidence

In some circumstances, a convicted person may be given leave to appeal against conviction on the basis of fresh evidence.⁷³ Fresh evidence is evidence that was not available to the appellant at the time of the trial, assuming they had exercised reasonable care in the conduct of their case.⁷⁴

A court may allow an appeal against conviction if the appellant adduces fresh evidence that demonstrates the original conviction constituted a substantial miscarriage of justice. The relevant test is whether the fresh evidence, when viewed in combination with the evidence given at the trial before the jury, shows that there is a ‘significant possibility that the jury, acting reasonably, would have acquitted the accused’ had the fresh evidence been before it at trial.⁷⁵

Legal principles: conduct of lawyers and police officers

In Chapters 7 and 8, the Commission examines how the conduct of Ms Gobbo as a human source and the related conduct of Victoria Police officers:

• may have affected individual cases
• may have breached or fallen short of the behaviour demanded by their legal, ethical and professional duties.

In Chapter 9, the Commission identifies the systemic factors across Victoria Police that encouraged, enabled or condoned the failings of individual police officers. These factors largely involved cultural issues and failures of leadership, governance and management. In certain respects, however, they involved failures to comply with legal obligations, notably the obligation to disclose all relevant information to the defence.

The following sections outline the laws and legal principles relating to the Commission’s assessment of the conduct of Ms Gobbo and Victoria Police officers. The legal principles outlined in these sections refer to laws in operation at the time of the Commission’s inquiry. Although some of the legislation referred to came into force after the key events investigated by the Commission, previous versions of these laws similarly set and governed fundamental professional standards of conduct for lawyers and police officers. Indeed, obligations to uphold the law and observe fair trial principles are long-established and fundamental to the proper administration of the criminal justice system. The Commission is confident, therefore, that the duties and standards of behaviour required of lawyers and police officers under current laws also applied during the period when Ms Gobbo was acting as a human source.⁷⁶

More detail about key legal principles is also contained in the following chapters:

• Chapter 2: The importance of the inquiry
• Chapter 4: Legal obligations of confidentiality or privilege
• Chapter 14: The use and disclosure of information from human sources in the criminal justice system
• Chapter 15: Legal profession regulation.

Lawyers’ conduct

In Chapter 7, the Commission describes Ms Gobbo’s conduct as a human source, and the ways in which her conduct may have affected the cases of her clients and others. The chapter also explores the broader impacts of Ms Gobbo’s conduct on individuals, the legal profession and the criminal justice system.

The Commission has concluded that Ms Gobbo’s activities as a human source, while practising as a lawyer, amounted to a grave violation of her duties as a legal practitioner, and that the potential impacts of her misconduct were extraordinarily wide-ranging. Her misconduct involved a disregard for the most basic legal professional and ethical standards of independence, of integrity and of avoiding conflicts of interest.

In assessing Ms Gobbo’s conduct, the Commission had regard to the standards of professional and ethical behaviour expected and required of lawyers, and the tests set down in law to establish whether a lawyer has engaged in misconduct.

Professional misconduct is defined in the Legal Profession Uniform Law Application Act 2014 (Vic).⁷⁷ It includes:

1. unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
2. conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.⁷⁸

The legislation lists examples of conduct that may amount to professional misconduct.⁷⁹ They include contraventions of the Legal Profession Uniform Law (whether or not the person has been convicted), contraventions of the Legal Profession Uniform Rules, and being convicted of a serious offence or an offence involving dishonesty.⁸⁰

The Legal Profession Uniform Conduct (Barristers) Rules 2015 (Barristers’ Conduct Rules) are a principal source of a barrister’s professional obligations, breach of which may amount to professional misconduct.⁸¹ The Barristers’ Conduct Rules in many important respects reflect the obligations that lawyers owe under the common law. Lawyers are also bound by the laws that apply to members of the community.

The Barristers’ Conduct Rules state that barristers:

• have an overriding duty to the court to act with independence in the interests of the administration of justice
• owe duties to their clients and to their colleagues
• must maintain high standards of professional conduct
• must act honestly and fairly
• must give their advice independently and for the proper administration of justice.⁸²

The Barristers’ Conduct Rules accordingly prohibit barristers from engaging in conduct that:

• deceives or misleads the court or an opponent
• is dishonest or otherwise discreditable to a barrister
• is prejudicial to the administration of justice
• is likely to diminish public confidence in the legal profession or the administration of justice, or otherwise bring the legal profession into disrepute.⁸³

The Barristers’ Conduct Rules describe a barrister’s duty to the client in this way:

A barrister must promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the barrister’s skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person.⁸⁴

In observing their duty to the client, barristers must keep communications with the client confidential (subject to some exceptions) and must avoid conflicts of interest.⁸⁵ These duties are not only set out in the Barristers’ Conduct Rules; they are fundamental duties that arise out of the fiduciary relationship that exists between a lawyer and client.⁸⁶ A fiduciary relationship is one in which a person (the client) places their confidence, good faith, reliance and trust in another (the lawyer), whose advice is being sought.⁸⁷ The fiduciary duties owed by a lawyer to a client are protected by the branch of law called equity, which is discussed in Chapter 4.

The duty of confidentiality requires a barrister not to use or disclose any confidential information they have received from a client unless the client consents, or the disclosure is compelled or permitted by law.⁸⁸ As discussed in Chapter 4, communications between a lawyer and client made for the dominant purpose of seeking and providing legal advice, or for use in legal proceedings are also protected by privilege.⁸⁹

The duty to avoid conflicts of interest requires a barrister not to act for a person if that person’s interests are or would be in conflict with the barrister’s own interests.⁹⁰ At the very least, the barrister must disclose the conflict to the client and may only continue to act for them if the client provides fully informed consent.⁹¹ Barristers are also prohibited from working in another vocation if it is likely to impair or conflict with the barrister’s duties to clients.⁹²

Further, a barrister cannot act for a person if that person’s interests are or would be in conflict with the interests of another of the barrister’s clients,⁹³ or if the barrister has already discussed the person’s case with someone who is likely to be, or associated with, the opposing party in the matter.⁹⁴

Depending on the nature and seriousness of the conduct involved, and the degree to which the breach was wilful or intentional, a barrister who breaches their professional duties may face:

• disciplinary action for professional misconduct, which may result in sanctions including suspension or cancellation of the barrister’s practising certificate, removal of the barrister’s name from the Supreme Court Roll of Legal Practitioners, a caution and publication of the details of the disciplinary action taken⁹⁵
• criminal proceedings if the conduct is alleged to have involved the commission of an offence (for example, perverting or attempting to pervert the course of justice)⁹⁶
• civil proceedings brought by the client to claim damages or compensation (for example, for breach of confidence or breach of fiduciary duty), or to seek an injunction to restrain the barrister from future disclosure of confidential information or from acting for other parties if a conflict of interest exists.⁹⁷

As discussed above, breaches of a lawyer’s duties to the court or to their client may also affect the outcome of a criminal trial, either because the breach affects a particular aspect of the trial process (for example, the evidence that is available for the court to consider), or because it undermines public confidence in the administration of justice.

If a court becomes aware of the breaches during the trial and decides that they compromise the accused person’s right to a fair trial, it may order that the proceeding be stayed permanently or temporarily. If the breaches become apparent after the accused person has been convicted, they may be raised as grounds of appeal or in a petition for mercy. An appeal court may find that the misconduct involved deprived the accused person of a fair trial and amounted to a substantial miscarriage of justice.

Police officers’ conduct

In Chapter 8, the Commission describes the conduct of several Victoria Police officers in their disclosures about and recruitment, handling and management of Ms Gobbo as a human source, and the ways in which that conduct may have affected the cases of numerous individuals.

The Commission has concluded that the conduct of some current and former Victoria Police officers in managing Ms Gobbo as a human source at various times and in various ways was improper, potentially falling short of the behaviour demanded by their legal, ethical and professional duties. In assessing the conduct of those current and former Victoria Police officers, the Commission had regard to the standards of professional and ethical behaviour expected and required of police, and the tests set down in law to establish whether a police officer’s conduct was improper and amounted to misconduct.

The duties and obligations of police officers arise from their oath or affirmation of office, legislation and prosecutorial guidelines, and the common law. Before they can commence service, every police officer must take an oath or make an affirmation promising to:

• well and truly serve without favour or affection, malice or ill-will
• keep and preserve the peace
• prevent, to the best of their abilities, all offences
• discharge all of the duties legally imposed on the officer faithfully and according to law.⁹⁸

Upon making this promise, the officer assumes all of the duties and powers imposed or conferred on a police officer by legislation or the common law.⁹⁹ The common law tends to describe police duties only in general terms.¹⁰⁰ As reflected in their oath or affirmation of office, police have two broad duties: to prevent and detect crime, and to keep the peace.¹⁰¹

One specific duty police have is the duty of disclosure. As noted above and in Chapter 2, police are bound by the prosecution’s duty to disclose all relevant information to the accused person. The duty of disclosure continues to apply even after an accused person has been convicted. If police wish to resist disclosure of certain information in their possession on the basis that it is subject to public interest immunity (PII), they must apply to the court for an order authorising non-disclosure.¹⁰²

As a public authority, Victoria Police, along with its officers, is also required to comply with the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).¹⁰³ The Charter only applies to acts or decisions made after 1 January 2008.¹⁰⁴

The Victoria Police Act 2013 (Vic) (Victoria Police Act) and the Independent Broad-based Anti-corruption Commission Act 2011 (Vic), set out what ‘breaches of discipline’ or ‘misconduct’ mean.¹⁰⁵

Breaches of discipline include:

• contraventions of the Victoria Police Act or regulations
• conduct that is likely to bring Victoria Police into disrepute or diminish public confidence in it
• disgraceful or improper conduct
• negligence or carelessness in the discharge of duty
• acting in a manner prejudicial to the good order or discipline of Victoria Police
• aiding or abetting or directly or indirectly being knowingly concerned in, or a party to the commission of a breach of discipline.¹⁰⁶

Misconduct means:

• conduct that constitutes an offence punishable by imprisonment
• conduct that is likely to bring Victoria Police into disrepute or diminish public confidence in it
• disgraceful or improper conduct (whether in the officer’s official capacity or otherwise).¹⁰⁷

Depending on the nature and seriousness of the conduct involved, and the degree to which the breach was wilful or intentional, a police officer who breaches their professional duties may initially face an investigation by Victoria Police or the Independent Broad-based Anti-corruption Commission (IBAC),¹⁰⁸ which may in turn result in:

• management action under internal Victoria Police policy, such as workplace guidance, formally recording the breach on the officer’s professional development assessment or an admonishment notice¹⁰⁹
• action for breach of discipline, which may result in a reprimand; a fine; a reduction in rank, seniority or remuneration; dismissal or a requirement to pay compensation or costs¹¹⁰
• criminal proceedings if the conduct is alleged to have involved the commission of an offence (for example, misconduct in public office, or perverting or attempting to pervert the course of justice).¹¹¹

Breaches of certain legal obligations by police officers may provide grounds for civil proceedings (for example, for malicious prosecution), and may also affect the outcome of a criminal trial. In particular, as outlined above, any impropriety or unlawfulness in the processes by which they gathered evidence, or any failure to disclose relevant information to the defence, may be directly relevant to whether an accused person has received a fair trial.

The Commission’s role and approach

As noted in Chapter 3, the Commission’s role was to inquire into and report on the matters specified in its terms of reference. This involved uncovering facts, and reaching general conclusions about their consequences.

As an investigative body, the Commission had no judicial or prosecutorial power, and was unable to make any determinative findings. It had no power to overturn convictions, order re-trials, change sentences, release people from custody or otherwise affect anyone’s legal position.¹¹² Only courts have these powers. Nor did the Commission have the power to initiate any criminal or disciplinary charges. Instead it will be for other authorities to determine whether charges or disciplinary proceedings should be brought.¹¹³ If such action is taken, it will be for a court (or other agencies in the case of some conduct) to make findings about whether offences or other types of unlawful conduct have been committed, and if so, to impose sanctions.

No power to find people guilty of criminal offences

Under our legal system, only a court exercising criminal jurisdiction can make a finding that a person is guilty of a criminal offence and impose criminal sanctions.¹¹⁴ A royal commission or other body of inquiry does not have these powers. This reflects the ‘principle of legality’. This principle aims to avoid ‘the risk of reputational damage and prejudice to any criminal proceedings that might follow publication of a finding of corrupt [or criminal] conduct’.¹¹⁵

In the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (commonly known as the ‘Fitzgerald Inquiry’), the Chair of the Commission, the Honourable Gerald Edward (Tony) Fitzgerald, AC, QC, explained why bodies other than courts should refrain from making findings about criminal conduct, even when they are investigating events involving potentially unlawful conduct:

The community would be badly served by any unnecessary departure from the fundamental presumption of innocence to which each citizen is entitled unless and until tried and convicted. Every person who was adversely mentioned in evidence before this Inquiry (or who is mentioned in material held by the Commission) is innocent unless and until proven guilty in a court or other appropriate tribunal, which must make such a finding in the proper discharge of its functions.

Even where it is necessary to make an adverse finding in this report against a particular person, the question of his or her criminal guilt must remain for the appropriate court to determine. To the extent that findings of fact are necessary for the purposes of the report, it goes no further than to record matters and draws short of any conclusion as to the commission (or otherwise) of any criminal offence by any person.¹¹⁶

Power to consider potential unlawful conduct

The principle of legality does not prevent certain regulatory authorities and investigative bodies from inquiring into potential criminal and other unlawful activity and making findings about individual conduct.

The parameters of an inquiry will ultimately depend on the legislation or other instrument establishing the agency or body, as well as relevant legal principles developed by the courts.¹¹⁷ For example, an administrative body with regulatory functions may be empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action.¹¹⁸ Such a determination may lay the foundations for instituting legal proceedings or other enforcement measures.¹¹⁹ In other circumstances, it may only be permissible for the agency or body to report on the existence of material that may establish that a criminal offence has been committed, without expressing any actual finding that an offence may have been or was committed.¹²⁰

In the case of a royal commission, its terms of reference will determine whether it is permissible to express views about the conduct of those involved in the events that are the subject of its inquiry.¹²¹

Findings made by administrative or investigative bodies like this Commission about the conduct of those it investigates have an entirely different character to findings made by courts exercising criminal jurisdiction. They are made for a different purpose, and are reached by reference to a different standard of proof and a different approach to the rules of evidence (discussed further below). In addition, subject to some exceptions, evidence given or produced to a royal commission cannot be used against a person in criminal proceedings.¹²² This prohibition preserves the important distinction in our democracy between an inquiry such as a royal commission—an exercise of power by the executive branch of government—and a criminal proceeding before a court—an exercise of power by the judicial branch of government. The distinction means that the evidence used in a criminal trial remains subject to the strict rules developed over centuries to ensure that criminal justice is administered fairly.

The Commission’s approach to considering potential unlawful conduct

The Commission’s terms of reference required it to consider potential unlawful conduct. This was not to determine guilt, but to address the terms of reference within the parameters of the Letters Patent establishing the Commission.

The Commission’s consideration and identification of potential unlawful conduct by individuals was necessary and justified for several reasons.

As discussed in Chapter 1, the High Court, in its decision in AB v CD, observed that Ms Gobbo’s actions were ‘fundamental and appalling breaches’ of her obligations as counsel to her clients and of her duties to the court.¹²³ It also concluded that Victoria Police was ‘guilty of reprehensible conduct’ in knowingly encouraging Ms Gobbo to act as a human source and was ‘involved in sanctioning atrocious breaches of the sworn duty of every police officer’ under the Victoria Police Act and its predecessor, such that the prosecution of several people ‘was corrupted in a manner which debased fundamental premises of the criminal justice system’.¹²⁴ This decision precipitated the Commission’s inquiry and is cited in the background to the Commission’s terms of reference. Accordingly, these statements of the High Court informed the purpose of the Commission’s inquiry and its overall approach—namely, an examination of relevant events and the extent to which the criminal justice process was undermined by potentially illegal or improper conduct. It was appropriate for the Commission to adopt this approach in light of the High Court’s observations—that is, to have regard to the context and reasons for the establishment of the inquiry.¹²⁵

The terms of reference required the Commission to report on the ‘conduct’ of Ms Gobbo as a human source, and the ‘conduct’ of current and former Victoria Police officers. Against the background of the High Court’s decision in AB v CD, it was necessary for the Commission to examine the appropriateness of their conduct, including whether it fell short of that required by applicable laws, regulations and professional standards.

Examining the extent to which cases ‘may have been affected’ required consideration of potential unlawful or improper conduct on the part of Ms Gobbo and Victoria Police officers. As discussed above, a case may be affected in many ways, such as if those involved in investigating or prosecuting it obtained evidence through improper or unlawful means, or if their conduct otherwise undermines public confidence in the administration of justice. The nature and extent of any unlawful or improper conduct by current or former police officers and Ms Gobbo may be relevant to a court determining whether a substantial miscarriage of justice has occurred, resulting in a conviction being quashed and/or a charge permanently stayed.

Term of reference 6 also authorised the Commission to inquire into and report on any other matters necessary to satisfactorily resolve the matters included in terms of reference 1–5. This further supported the Commission’s broad scope envisaged by the Letters Patent to investigate, consider and report on all dimensions of the conduct of Ms Gobbo and current and former Victoria Police officers.

Counsel Assisting submissions

In their submissions, Counsel Assisting, while recognising and applying the principle of legality, invited the Commission to find that Ms Gobbo and a number of current and former police officers may have committed criminal conduct, and may have engaged in conduct that breached their professional and ethical duties. In the case of Ms Gobbo, Counsel Assisting submitted she may have engaged in conduct that breached her obligations under the Barristers’ Conduct Rules or its predecessor.¹²⁶ In the case of certain current and former police officers, Counsel submitted that they may have engaged in conduct that breached their obligations under the Victoria Police Act or its predecessor.¹²⁷ Importantly and appropriately, they did not submit that the Commission should find they had done so, appreciating the limitations upon the Commission’s administrative powers.

In their responsive submissions, Victoria Police, some current and former Victoria Police officers and Ms Gobbo urged the Commission not to make such findings and requested that those portions of Counsel Assisting submissions be redacted.

The Commissioner’s ruling

The Commission determined that even though it was required to consider potential criminal conduct, it would not make findings that any named individuals (such as Ms Gobbo or current or former Victoria Police officers) committed or may have committed criminal offences. The Commission determined, however, that it might make findings against individuals concerning potential breaches of the Victoria Police Act or its predecessor.¹²⁸ The Commission communicated this position to Victoria Police, the relevant current and former police officers and Ms Gobbo in August 2020 and, at their request, gave reasons for that decision.¹²⁹

In arriving at the decision not to make findings that any individual had or may have committed criminal offences, the Commission was guided by the approach adopted in previous comparable inquiries and royal commissions, by its Letters Patent and the background to them, and by a concern not to unfairly prejudice any future court proceedings or put at risk the presumption of innocence and the right to a fair trial, as enshrined in Victoria’s Charter. Any findings of this Commission would not, in any event, be admissible to establish the guilt of individuals in a criminal trial. It follows that, even accepting this Commission had power to make findings about potential criminal conduct as Counsel Assisting persuasively submitted, those findings would have no effect and would be inadmissible in a criminal proceeding.

The Commission’s decision that it may make findings, if satisfied to the requisite standard, that some current and former police officers may have committed breaches of the Victoria Police Act or its predecessor was also guided by the terms of its Letters Patent and the events that led to this Commission, including the High Court’s observations in AB v CD about the conduct of Victoria Police. It was also influenced by the fact that determinations about breaches of the Victoria Police Act and its predecessor are made, not by courts exercising judicial power, but by the Chief Commissioner of Victoria Police or their authorised delegate exercising executive power.¹³⁰ This means that the concern about prejudicing the deliberations of a jury in relation to potential criminal charges is not applicable. A professional decision maker with statutory functions would be able to make decisions according to the applicable criteria and evidentiary requirements, without being swayed by previous findings of this Commission or by media reporting of them.

The Commission’s findings and conclusions about individual conduct

Consistent with the Commissioner’s ruling, the Commission has not made any findings that any individual committed or may have committed any criminal offences.

The Commission is satisfied, however, that some current and former Victoria Police officers engaged in conduct that, at the time, may have amounted to breaches of discipline and/or misconduct. The Commission’s conclusions about the conduct of these officers are set out in Chapter 8.

It is also satisfied that Ms Gobbo engaged in conduct that breached her duties as a legal practitioner. In this regard it should be noted that in her written submissions, Ms Gobbo admitted that she had engaged in conflicts of interest and breaches of legal professional privilege and confidentiality.¹³¹ The Commission’s conclusions about Ms Gobbo’s conduct are set out in Chapter 7.

Having reached these conclusions and having received submissions from Counsel Assisting about potentially criminal or unlawful conduct,¹³² the Commission had to consider what further action was warranted with respect to these serious allegations.

The Commission considered the evidence and submissions made by all parties. The Commission is persuaded that, despite the arguments made in responsive submissions,¹³³ there is sufficient merit in the contentions about potential criminal conduct and other misconduct made in the complete and unredacted version of Counsel Assisting submissions to require a full and independent investigation to determine whether there is sufficient admissible evidence to support a prosecution or disciplinary action.¹³⁴ The Commission was also mindful of the limitations of its own investigations, in part because of the extent and breadth of the matters it was required to investigate and its time and budgetary constraints, but also due to the challenges it faced in accessing all relevant materials from Victoria Police (these are discussed further in Chapter 16). As a result, it cannot be confident it has identified all instances of potential wrongdoing by individuals, received all pertinent material or heard from all relevant witnesses. In any case, much of the evidence gathered by this Commission is not admissible in a criminal proceeding.¹³⁵ For these reasons, the Commission has concluded that investigation by a law enforcement body is required.

For reasons explained in Chapter 17, however, the Commission formed the view that it would be problematic for the conduct of Ms Gobbo and of current and former Victoria Police officers to be probed by existing investigative authorities. Instead, it has recommended that the Victorian Government appoints a dedicated Special Investigator with all necessary powers to investigate whether there is sufficient evidence to establish the commission of any criminal offences connected with the events that led to this Commission. If the Special Investigator concludes that there is sufficient evidence to establish the commission of any criminal offences, they would compile a brief of evidence for the DPP who would then decide whether to prosecute, and if so would be responsible for prosecution of the matter in the courts.

The Special Investigator should also be empowered to investigate whether there is sufficient evidence to establish the commission of or a breach of discipline under the Victoria Police Act or its predecessor by any serving police officer. If satisfied there is sufficient evidence, the Special Investigator would be able to lay disciplinary charges against individual police officers.

The Commission’s recommendations about the appointment of the Special Investigator are set out in Chapter 17. As Ms Gobbo has now been struck off the Roll of Legal Practitioners and she can no longer practise as a lawyer, there is no basis for her professional misconduct to be investigated further.¹³⁶ As discussed in Chapter 7, the only remaining action to be taken in relation to Ms Gobbo’s practice as a lawyer is for the Victorian Bar to take the symbolically significant step to have her name removed from the Victorian Bar Roll.

Establishing the scope of the inquiry

The scope of a royal commission’s inquiry is determined by the content of the instrument establishing the inquiry. The Letters Patent establishing the Commission specified its terms of reference, and also, as discussed in the previous section, included information about the background to the inquiry.

Defining key words and phrases in the terms of reference

Once the Letters Patent for the Commission were issued, it became the Commission’s responsibility to determine the scope of the inquiry and to construe its terms of reference.¹³⁷ Defining key words and phrases helped the Commission to establish the parameters of its inquiry, and in turn to complete its functions and report on time, and apply its resources in a targeted and efficient manner.¹³⁸

Tables 5.1 and 5.2 below describe how the Commission defined or construed key words and phrases in terms of reference 1 and 2 relating to its investigative functions.

Table 5.1: Definition of key words and phrases in term of reference 1

Table 5.2: Definition of key words and phrases in term of reference 2

Identifying potentially affected cases

Counsel Assisting submitted to the Commission that the following methodology they developed for identifying the number of cases that may have been affected by the conduct of Ms Gobbo as a human source, and the extent to which they were potentially affected, was appropriate and accurate. The methodology was designed in accordance with the definitions ascribed to the words and phrases in the terms of reference as outlined above.

The overall objective of this process was to identify cases that resulted in a conviction or finding of guilt, and which fell into any of these categories:

1. Ms Gobbo advised, conferred with or represented the accused person between 14 May 1998¹⁴⁰ and 16 August 2013.¹⁴¹ (This category did not require any evidence that Ms Gobbo had provided information to Victoria Police or had otherwise assisted the prosecution—it was sufficient that she had provided legal services to the accused person while also acting as a human source and had not disclosed her role as a source.)
2. Ms Gobbo advised, conferred with or represented the accused person and there was evidence that her conduct as a human source may have more directly affected the outcome of the accused person’s case. This was because she had communicated information about them, or about people with whom they had associated or events in which they may have been involved, to Victoria Police and she was also providing legal services to them, without disclosing her role as a human source to the accused person.
3. Ms Gobbo did not advise, confer with or represent the accused person, but there was evidence that her conduct as a human source may otherwise have tainted the evidence used by the prosecution against the accused person, without anyone disclosing her role as human source.

Broadly, the process involved first ascertaining the people Ms Gobbo advised or represented while also acting as a human source (whether registered as such or not). Those cases were then filtered according to certain criteria relating to Ms Gobbo’s representation, case outcomes, and evidence of relevant interactions between Ms Gobbo (in her capacity as a human source) and Victoria Police. The details of this process are documented in Counsel Assisting submissions.¹⁴²

The analysis of Counsel Assisting, supplemented by further work undertaken by Commission staff, revealed that there were 973 individuals with convictions or findings of guilt for whom Ms Gobbo acted between 1998 and 2013 without disclosing her role as police agent. It was not necessary for there to be a link between her representation of the accused person and the conviction or finding of guilt. These were the cases that fell within the first two categories listed above.

A further 38 individuals, for whom Ms Gobbo did not act, were identified as having convictions or findings of guilt potentially affected by her conduct and that of Victoria Police—in particular, because evidence used against them may have been improperly or illegally obtained through the use of Ms Gobbo as a human source, and the origins of the evidence were not disclosed to the accused person. These were the cases that fell within the third category listed above.

This provides a total cohort of 1,011 individuals whose cases were potentially affected by the conduct of Ms Gobbo acting as a human source.

Counsel Assisting developed detailed case studies for 124 individuals from this cohort, demonstrating how their cases may have been specifically affected by the conduct of Ms Gobbo and Victoria Police. Of these, 86 were Ms Gobbo’s clients (and fell within the second category listed above), and 38 were related cases (falling within the third category). The cases of these 124 individuals were identified as potentially having been affected because they were persuasive examples of conduct that may be found to amount to a substantial miscarriage of justice on the following two broad grounds.

Undisclosed conflict of interest

• Ms Gobbo was acting for the accused person and also provided information to Victoria Police in relation to the accused person, and/or otherwise assisting (or attempting to assist) in the prosecution of the accused person; and
• This conduct was not disclosed to the accused person, nor did Victoria Police seek permission from the court not to disclose that information.

Tainted evidence

• Evidence relied upon in prosecuting the accused person may have been obtained as a result of the improper or illegal use of Ms Gobbo as a human source by Victoria Police; and
• The origins of that evidence were not disclosed to the accused person, nor did Victoria Police seek permission from the court not to disclose that information.

In respect of the remaining 887 individuals, Counsel Assisting submitted that Ms Gobbo failed to disclose that she was a human source while also advising or representing them. Even in the absence of any indication that Ms Gobbo provided information about these people to Victoria Police, or that the evidence used in their prosecution was tainted, this circumstance alone is potentially capable of giving rise to a substantial miscarriage of justice, pursuant to the approach in R v Szabo (described above). This may depend, however, on the role of Ms Gobbo in each accused person's case. In this regard, Counsel Assisting noted that in many cases Ms Gobbo did not appear at the accused person’s trial or if she did she was led by senior counsel.¹⁴³ Instead she may only have provided advice, or have appeared at preliminary stages of proceedings, such as in mention hearings, bail applications and committals.

Evidentiary principles

A royal commission may conduct its inquiry in any manner that it considers appropriate, subject to the requirements of procedural fairness, the Letters Patent and the Inquiries Act 2014 (Vic) (Inquiries Act).¹⁴⁴ It is not bound by the rules of evidence and may inform itself on any matter as it sees fit.¹⁴⁵ Even though a royal commission is not bound by the rules of evidence, it should have regard to those rules because they assist in providing ‘substantial justice’ to the parties concerned.¹⁴⁶

So, while the Commission was able to conduct the inquiry in the manner it considered appropriate, it was also mindful of its scope, statutory requirements and the rules of procedural fairness and evidence. Accordingly, the Commission:

• gathered evidence from a range of sources: written statements, oral evidence, submissions and documents obtained in response to notices to produce
• took a broad, liberal approach to the questions of relevance and admissibility of evidence, being mindful of its investigative nature and the purpose of the inquiry
• established processes for considering and determining applications to refuse to give information to the Commission, principally on the grounds of PII
• afforded procedural fairness to any person whose interests were sufficiently affected by the inquiry (discussed further below)
• in making findings in this final report, adopted the civil standard of proof as explained in the case of Briginshaw v Briginshaw.¹⁴⁷

As explained above, the Commission’s role was not to make findings that any person had committed a criminal offence. That is the role of the courts. When courts exercise criminal jurisdiction, the fact-finder must be satisfied beyond reasonable doubt of the elements of the offence with which the accused person is charged before that person can be found guilty. This is called the criminal standard of proof, and is considered an appropriately high threshold given the gravity of imposing criminal sanctions on an individual.

When making its findings, the Commission was not exercising judicial power in a criminal proceeding and it was therefore not necessary to apply the criminal standard of proof. Instead, as noted, it adopted the civil standard of proof, which requires satisfaction on the balance of probabilities.¹⁴⁸ This is a lower threshold than the criminal standard of proof. In making findings about conduct that, if found to be misconduct, could have serious consequences for those who may be charged, the Commission did so cautiously. This is consistent with the legal principle explained by Justice Dixon in Briginshaw, that:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.¹⁴⁹

Procedural fairness requirements

As noted above and in Chapter 3, the Commission was obliged to afford procedural fairness to interested parties. This obligation arises under the Inquiries Act and the common law.¹⁵⁰

Procedural fairness is a fundamental legal principle. This principle requires courts and commissions of inquiry to exercise their powers with fairness to those whose interests might be affected.¹⁵¹

The entitlement to procedural fairness generally extends to any person whose rights, interests or legitimate expectations may be affected in a direct and immediate way.¹⁵² The variety of interests that are protected by the requirements of procedural fairness are ‘almost infinite’¹⁵³ and are not limited to legal rights.¹⁵⁴ They can also include status, reputation, liberty, confidentiality, livelihood and financial or other benefit.¹⁵⁵

There are many ways in which a royal commission or other inquiry can ensure interested parties are afforded procedural fairness. The scope and content of the obligation to afford procedural fairness is determined by the facts and circumstances of the inquiry.¹⁵⁶ The requirements are flexible and their application in each case will depend on matters such as the nature of the inquiry, the legislation and terms of reference governing the inquiry, and the subject matter being dealt with.¹⁵⁷ They are also shaped by matters of practicality, such as the time and resources available to the decision maker, the duration and complexity of the inquiry, and the volume of material the inquiry traverses.¹⁵⁸

The overriding consideration in determining the scope and content of the obligation to afford procedural fairness is ‘fairness’.¹⁵⁹

Significantly, procedural fairness requires anyone conducting an inquiry to refrain from making any finding adverse to the interests of a person without first giving them the opportunity to make submissions against such a finding.¹⁶⁰ This obligation is reflected in section 36 of the Inquiries Act and required the Commission to:

• ensure that any person against whom an adverse finding was proposed was aware of the matters on which the proposed finding was based, and that they had an opportunity to respond to those matters
• consider the person’s response before making an adverse finding
• fairly set out the person’s response in its report when making an adverse finding against them.

Procedural fairness also requires that decision makers not be, and not appear to be, affected by bias—that is, they must bring an impartial mind to the resolution of the questions they are required to decide.¹⁶¹ This is known as the ‘bias rule’. A decision maker should not by their words or actions convey:

… the impression that he or she had preconceived adverse views about a party’s case and that those views were so strongly held that he or she was unwilling or unable to consider on their merits any submissions made, or evidence adduced, by that party which were inconsistent with those views.¹⁶²

The bias rule does not, however, preclude a decision maker from expressing tentative views during a hearing, nor does it require the absence of any predisposition or inclination for or against an argument or conclusion.¹⁶³ A person presiding over a royal commission is permitted to take a more active, interventionist and robust role in the conduct of hearings, ascertaining facts and reaching conclusions, than a judge in adversarial court proceedings.¹⁶⁴

The bias rule may require the decision maker to redress any ‘evident and persisting inequality of treatment’ of particular witnesses by any counsel assisting.¹⁶⁵ It does not, however, prevent counsel assisting from advancing a ‘case theory’ in the presentation of evidence and argument.¹⁶⁶ What matters is whether, by the time the public part of the inquiry draws to a close, the decision maker can still consider the evidence given and the submissions put to them on their merits, and reach a conclusion, irrespective of the case theory.¹⁶⁷ The main question will be whether the decision maker is reasonably open to persuasion and is seen to be so.¹⁶⁸

Procedural fairness also requires that interested parties be given a fair hearing throughout the inquiry.¹⁶⁹ A fair hearing involves ensuring that parties are able to ascertain the critical issues, evidence and considerations relevant to their interests and that they have access to material that is both supportive of and adverse to their interests. It also involves giving parties the opportunity to present their case and to respond to evidence that contradicts their position.

Application of procedural fairness by the Commission

The Commission afforded procedural fairness not only to those individuals against whom an adverse finding may have been made, but also to those whose cases may have been affected by the use of Ms Gobbo as a human source (whom the Commission came to refer to as ‘potentially affected persons’), as well as to agencies involved in the prosecution of the potentially affected cases. Many of the potentially affected persons had a direct personal interest in the Commission’s findings due to the possible infringement of their legal rights, including the deprivation of their liberty if they had been imprisoned following their conviction.

The processes the Commission adopted for ensuring interested parties were afforded procedural fairness are set out in Chapter 3. Broadly, they involved allowing certain individuals and entities to appear and often also to be heard at the Commission’s hearings, to cross-examine relevant witnesses, to make oral and written submissions on issues affecting them, and to have access to documentary materials. Parties were provided with Counsel Assisting submissions about what findings they considered ought to be made, as well as submissions made by other interested parties, and were invited to make responsive submissions (including, where necessary, reply submissions) so that any potential adverse findings could be addressed. The Commission carefully considered all such responsive and reply submissions.

The Commission implemented and facilitated all of these processes in the context of tight timeframes, finite resources, extensive documentary material often being provided late, a large number of interested parties, a labyrinth of complex historical court non-publication orders requiring several applications to the Supreme Court, protracted arrangements for resolving an extraordinary number of PII claims, hundreds of applications for non-publication orders, and an application to the Supreme Court to judicially review one of its decisions.

The Commission’s capacity to share relevant materials with interested parties was constrained in several instances by Victoria Police and sometimes other entities insisting that certain material not be disclosed to others on the basis of PII, or that it otherwise be treated as confidential. In some cases, Victoria Police agreed to provide these materials to others, subject to them providing legal undertakings to keep the material confidential. But on many occasions, they refused to disclose the material even when an appropriate undertaking was offered. The Commission was also impacted by Victoria Police’s often late and voluminous production of documents, some of which contained material relevant to witnesses who had already appeared or were about to appear before the Commission. Because of time constraints and the size of its task, the Commission did not have the opportunity to recall all such witnesses to fully explore this material with them or allow others to do so. These issues are addressed in Chapter 16.

In their submissions in response to Counsel Assisting submissions, Ms Gobbo, Victoria Police and some current and former Victoria Police officers asserted that they had not received procedural fairness from the Commission (either directly or through the actions of Counsel Assisting). They argued that the Commission should be careful not to simply adopt Counsel Assisting submissions.

Ms Gobbo submitted that Counsel Assisting (and, in more limited ways, the Commissioner) were biased against her and/or pursued a predetermined narrative.¹⁷⁰ Six former officers of the Victoria Police Source Development Unit also argued that Counsel Assisting pursued a predetermined narrative that was unsupported by the evidence.¹⁷¹

The other contentions made by parties included that:

• Counsel Assisting’s proposed findings and criticisms were based on inaccuracies, unsupported inferences and selective use of available material¹⁷²
• Counsel Assisting’s proposed findings were based on material that had not been tendered during hearings, or not put to parties when they gave evidence before the Commission¹⁷³
• they had inadequate access to relevant witness statements and documents, which hampered their efforts to refresh their memories about past events and prevented them from understanding the allegations being made against them¹⁷⁴
• they had insufficient time to prepare for giving evidence and/or for responding to Counsel Assisting submissions¹⁷⁵
• the Commission had insufficient time to conduct the detailed inquiry necessary to reach accurate conclusions about the conduct of individuals.¹⁷⁶

The Commission fully understood its obligations to afford procedural fairness to interested individuals and entities. Given the time and financial constraints within which it operated and the unsatisfactory, piecemeal way that Victoria Police provided information, the Commission did everything reasonable to ensure procedural fairness. It is true that some of the material referred to by Counsel Assisting in their submissions was identified after the conclusion of the hearings in relation to terms of reference 1 and 2. But all parties had the opportunity to respond to Counsel Assisting submissions, to answer any allegations amounting to adverse findings and to place further material before the Commission. The Commission is satisfied that, in this way, all interested individuals and entities received procedural fairness throughout the inquiry, and in relation to the findings and conclusions included in this final report.

Assertions that counsel are biased should not be lightly made.¹⁷⁷ Those assertions, however, were vigorously made by Ms Gobbo and must be dealt with, however trivial or misconceived.¹⁷⁸

The tests for bias concern the decision maker, not those in supporting roles such as that of Counsel Assisting. The submissions of Counsel Assisting plainly did not represent the views of the Commissioner. The Commissioner, who constituted the Commission, carefully scrutinised Counsel Assisting submissions when reaching the Commission’s findings.¹⁷⁹ She also carefully considered all responsive submissions, including any objections to Counsel Assisting’s assertions and proposed findings. The Commissioner’s decision, after receiving the responsive submissions, not to find that particular individuals may have engaged in criminal conduct, was one of many examples of the Commission’s decisions not to accept Counsel's contentions and/or risk prejudicing the rights or interests of parties.¹⁸⁰

The Commission rejects the other assertions made by individuals that they were not afforded procedural fairness. As to the arguments that they were not sufficiently aware of key issues, facts and evidence, had insufficient time to review materials or formulate positions, and that Counsel Assisting submissions referred to matters that had not been raised during hearings, the Commission makes the following points:

• The Commission’s inquiry was preceded by several other reviews and court proceedings conducted over many years, including the AB v CD proceedings in the Supreme Court, Court of Appeal and High Court, such that the parties were already broadly aware of the events and issues involved before the Commission’s inquiry began.
• The requirement to ensure fair notice of the critical issues, facts and evidence relevant to any adverse findings that might be made was discharged on an ongoing basis throughout the Commission’s inquiry. People subject to scrutiny by the Commission were represented by lawyers who had access to a vast quantity of documents and transcripts of evidence, ample opportunity to cross-examine relevant witnesses at the Commission’s hearings and listen to evidence, and to make and respond to submissions. If relevant material was not shown to them in a timely way, it was because Counsel Assisting did not then have or were not then aware of the significance of the material or because court or other orders or PII claims prevented this. The submissions process rectified any such shortcomings and provided an opportunity for the individuals to provide their response (and on occasion, multiple times).
• Although the Commission’s timeframes were tight, the parties were routinely afforded appropriate procedural fairness, necessarily tailored to the circumstances in which this Commission operated. The Commission’s inquiry was conducted over a period of almost two years, which afforded individuals and entities ample time to consider their positions. The Commission frequently granted parties extensions of time to make submissions and review materials. In addition, special arrangements were made for Ms Gobbo to give evidence, in light of her medical conditions and other personal circumstances. These personal circumstances also impacted upon the Commission’s ability to make documents available to Ms Gobbo in a secure form.
• As an investigatory body, the Commission was not bound by evidentiary rules in the same way that courts are. Accordingly, the fact that not every point or allegation was put to a witness, and not every document was tendered during hearings, did not preclude the Commission from making an adverse finding in respect of those matters, as long as the affected individual or entity first had the opportunity to respond (for example, in written submissions). If a matter was not put during a witness’ evidence, that did, however, have an impact on whether the Commission made findings in relation to it. The late provision of a great deal of material from Victoria Police also meant that the Commission’s investigative role continued after the hearings on terms of reference 1 and 2 concluded in February 2020. The provision of Counsel Assisting submissions to relevant individuals afforded them an adequate opportunity to respond to matters not raised at the hearings, given the challenging circumstances in which this Commission had to function.¹⁸¹
• Before making adverse findings, the Commission took into account the fact that individuals did not always have access to relevant documents and material when giving evidence, that serious allegations contained in Counsel Assisting submissions were not always put to them, and that not every relevant witness may have been called. This is another way in which the Commission afforded all individuals procedural fairness.

Conclusion

The laws and legal principles outlined in this chapter demonstrate the importance of ensuring accused persons receive a fair trial, and the consequences for convictions if an appeal court identifies any oversight, impropriety or illegality that tainted the accused person’s trial and resulted in a substantial miscarriage of justice. Not only can errors or omissions in a trial or evidence-gathering processes amount to a substantial miscarriage of justice, so too can the conduct of lawyers and law enforcement officers if it breaches professional and ethical standards, or otherwise undermines public confidence in the administration of justice.

The Commission’s findings, conclusions and recommendations in relation to its primary investigative functions were guided and informed by these principles. They are set out in Chapters 7, 8 and 9 and should be read in light of the consistent expectation of appeal courts that fair trial principles be adhered to, even if the case against the accused person is considered a very strong one.

Endnotes