Volume I

Commissioner’s foreword

In December 2018, the High Court of Australia published its judgement upholding the decisions of Victorian courts to allow the Director of Public Prosecutions (DPP) to disclose to a group of convicted people that defence barrister, Ms Nicola Gobbo, had been a human source. The Court stated:

[Ms Gobbo’s] actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of [her] obligations as counsel to her clients and of [her] duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging [her] to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law.

On 13 December 2018, the Victorian Government established this Royal Commission to inquire into and report on cases that may have been affected by Ms Gobbo’s conduct as a human source; the conduct of Victoria Police officers in their use of her as a human source; the adequacy of current processes for the management of human sources with legal obligations of confidentiality or privilege; and the use and disclosure of information from such human sources in the criminal justice system.

In the foreword to the Commission’s progress report, I described this task as mammoth in scale and Janus-like in its need to look both to the past and to the future. That description was apt.

The Commission examined events dating back to 1993; received 157 public submissions and 280 witness statements; issued 433 notices to produce and 238 formal requests for information resulting in the production of over 155,000 documents; held 129 days of mostly public hearings; examined 82 witnesses; tendered 1,957 exhibits; and consulted with 97 individuals and organisations. It received a further 45 submissions in response to the closing submissions of Counsel Assisting.

I was greatly assisted by a fine legal team of Counsel Assisting and Solicitors Assisting; a wonderful Chief Executive Officer and lawyer, Ms Kylie Kilgour; and the Commission’s hard-working and talented policy and research, investigations, operations, enquiries, and media and communications teams. The names of the many valued individuals and organisations who contributed to the Commission’s work are listed in Appendix H. I sincerely thank every one of them.

I thank the Fair Work Commission for the use of its premises to conduct hearings, and the Victorian courts for providing the Commission with material essential to the inquiry and prioritising the suppression order proceedings that aided the Commission’s public reporting and other work.

The Victorian media played a critical role in this inquiry. It conscientiously complied with the many complex non-publication orders, appreciating that any slip could endanger lives. In the interests of the public, it rightly tested Victoria Police’s applications to close hearings and for suppression orders. Importantly, its reporting of the hearings increased community awareness of the Commission’s work and helped restore public confidence in the criminal justice system.

I am also grateful to the Victoria Police officers who assisted the Commission, especially those who shared their experience and insight in the Commission’s focus groups. My thanks, too, to the former Chief Constable of Merseyside Police, Professor Sir Jonathan Murphy, QPM, DL, for generously sharing his expertise and giving evidence remotely from the United Kingdom, and to the many organisations and experts who shared their knowledge in consultations with the Commission.

On 24 August 2020, 18 months after the High Court’s scathing criticism and the Commission’s establishment, Victoria Police stated for the first time that it:

…accepts without qualification or reservation, that permitting Ms Gobbo…to give information to Victoria Police about her own clients…is reprehensible. It was an indefensible interference in the lawyer/client relationship…essential to the proper functioning of the justice system and to the rule of law. Victoria Police’s failure at the time to ensure that these circumstances were identified and disclosed was also a profound failure.

I welcome Victoria Police’s belated apology for the serious harm caused by its use of Ms Gobbo.

In their complete and unredacted closing submissions, Counsel Assisting invited me to find that Ms Gobbo and named current and former officers may have committed criminal offences. For reasons explained fully elsewhere, I declined to do this. I have found, however, after considering the responsive submissions of Ms Gobbo, those current and former officers, and Victoria Police, that there is sufficient merit in Counsel Assisting’s contentions to warrant further investigation to determine whether to bring criminal charges. I have therefore recommended legislation to establish an independent Special Investigator to undertake this task.

If the Special Investigator assembles sufficient admissible evidence to support criminal charges, they will prepare a brief for the Victorian DPP to determine whether it is in the public interest to prosecute. Even if there is sufficient evidence to bring charges, the DPP’s decision may be difficult. These events occurred long ago. Records may be incomplete and memories may have faded. Ms Gobbo was encouraged in her behaviour by police and now lives in fear of being murdered. The current and former officers acted within what Victoria Police accepts was a failed system and many, perhaps all have had otherwise exemplary careers serving the public good.

If the DPP determines that it is in the public interest to prosecute, those charged will receive a fair trial according to law, unlike those whose trials were corrupted by their conduct.

Taking a broad approach, the Commission has identified 1,011 individuals with convictions or findings of guilt that may have been affected by the conduct of Ms Gobbo and Victoria Police. That is not to say that all these convictions will be overturned on appeal, but at least these individuals are now aware of the relevant facts and can obtain legal advice to make an informed decision about whether to pursue any appeal rights.

The deception of Ms Gobbo and Victoria Police meant that for many years, their improper conduct was hidden. With the future investigation of those responsible, and the appeals of those who failed to receive a fair trial because of this conduct, Victorians can now be assured that their criminal justice system is working as it should.

I recognise that most current Victoria Police officers would not countenance an end-justifies-means approach to criminal investigations. I also recognise that human sources are a valuable tool in detecting and investigating crime. But a robust system of checks and balances is needed to support the ethical management of human sources and prevent improper use of confidential or privileged information.

The Commission has recommended practical, evidence-based reforms to strengthen human source management processes, establish independent oversight and reinforce police disclosure obligations. Together, these recommendations aim to strengthen police practices and the operation of the criminal justice system so that the events that led to this inquiry can never happen again.

In striving for that goal, I welcome the Premier of Victoria’s statement of the Government’s intention to implement all of the Commission’s recommendations, and the commitment of the Chief Commissioner of Victoria Police to heed those recommendations and take whatever steps necessary for Victoria Police to learn from its mistakes.

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Summary of human source management terms and processes

In several parts of this final report, the Commission discusses how Victoria Police uses and manages human sources.

The key terms, processes, roles and responsibilities related to Victoria Police’s current use and management of human sources are set out below. Some of these are broadly similar to those that existed when Victoria Police registered and used Ms Nicola Gobbo as a human source for the third time between 2005 and 2009; for example, the requirement to appoint a police ‘handler’ to manage day-to-day interactions with a human source. Others have changed since then; for example, the governance and decision-making processes applicable to the use of certain human sources, such as lawyers.

Where arrangements have changed substantially over time, this is indicated below.

Types of human sources

Human sources are people who covertly supply information about a crime or people involved in criminal activity to police or other law enforcement agencies, generally on an ongoing basis, with the expectation that their identity will be protected. This distinguishes them from other people who provide information to law enforcement agencies; for example, victims of crime or witnesses.

Human sources are sometimes also referred to as police ‘informants’ or ‘informers’. These terms are not used to describe human sources in this final report, in part to avoid confusion with police officer informants who commence a criminal proceeding against an accused person.

The Commission uses the following terms to refer to different types of human sources:

• Human sources with legal obligations of confidentiality or privilege—people who covertly supply information about a crime or people involved in criminal activity to police and are also subject to legal obligations of confidentiality or privilege as a result of their occupations (for example, lawyers or doctors).
• Human sources involving legal obligations of confidentiality or privilege—people who covertly supply information about a crime or people involved in criminal activity to police, and either hold legal obligations of confidentiality or privilege themselves; or do not hold those obligations themselves but have access to information that may be confidential or privileged (for example, the spouse of a lawyer or receptionist working in a medical clinic).
• High-risk human sources—human sources who are considered ‘high risk’ based on a risk assessment conducted by Victoria Police. Factors that might increase a person’s risk include them having a violent criminal history, a high likelihood of coming to personal harm or death should their informing become known, or legal obligations of confidentiality or privilege.
• Community sources—human sources whose role is typically confined to providing general information acquired during their daily activities and whom the police cannot ‘task’ to actively gather information. In May 2020, Victoria Police stopped using this term and broadened its general definition of human source to cover these types of sources.
• Prospective human sources—people being assessed or considered by Victoria Police as to whether they will be registered as a human source. Victoria Police policy requires that all human sources be registered.

Key elements of human source management

Figure A displays the key elements of Victoria Police’s human source management framework. These elements are broadly similar to those that operate in other jurisdictions.

While specific requirements have changed over time, the overarching elements that operate now are consistent with those that existed when Victoria Police used Ms Gobbo as a human source in 2005–09.

Figure A: Common elements of human source management

Assess

Prior to using a human source, police officers must assess the risks and the appropriateness of using that person as a source. Officers do this by completing a:

• Risk assessment—the process of identifying and assessing risks and any steps that can be taken to reduce identified risks, whether to the source, Victoria Police, its officers or others. Officers use a form to record information about the prospective human source and this information is assessed to determine a risk rating (for example, ‘low risk’, ‘medium risk’ or ‘high risk’).

Register

Registration refers to the process whereby the use of a person as a human source is authorised. A police officer must first prepare a registration application, which is then reviewed by more senior officers. The application must include a risk assessment, mentioned above, along with an:

• Acknowledgement of Responsibilities (AOR)—formal acknowledgement by the human source that they are to be registered as a source and the conditions of their registration (for example, the AOR might state that the source is not to engage in criminal activity).

Manage

The management phase involves police meeting and engaging with the human source, gathering information from them and making records of their interactions.

In managing a human source, police should conduct ongoing reviews to monitor any changes to the risks of using the source and/or identify any new risks that may have arisen.

Key terms associated with the day-to-day management of human sources are:

• Human source information—information that is supplied to police by a human source about a person or organisation associated with alleged criminal activity.
• Source Contact Report (SCR)—a report that details all relevant information about any contact with a human source, whether by phone, face-to-face or other means. A SCR was previously called an Informer Contact Report (ICR). A report should contain a detailed account of the meeting and any other information to be disseminated to investigators.
• Source Management Log (SML)—a record of the day-to-day management of a human source detailing all relevant information; specifically, information provided by the source, references to Source Contact Reports and Information Reports, any risks that have arisen in the management of the source and any information disseminated to investigators.
• Sterile corridor—the practice whereby the police officers responsible for managing the human source (handling team) are not the same officers who are conducting investigations that may rely on information that the human source has provided. Officers in the handling team ‘sanitise’ (de-identify) information provided by the human source before disseminating the information to investigators. The main purpose of the sterile corridor is to protect the safety of the human source, by minimising the number of people aware of their identity and/or existence.
• Tasking—an assignment or instruction given to a human source by police, in order to gather intelligence about criminal activity. If tasking involves conduct that could be criminal, authority must be first be obtained under the Crimes (Controlled Operations) Act 2004(Vic).

Share

The sharing of human source information by the handling team to investigating teams occurs through an:

• Information report (IR)—a short summary of information gathered by police. In the case of human source management, an IR is generated from information in a Source Contact Report, which is sanitised to remove or reduce any detail that might enable someone to ascertain the identity and/or existence of the human source.

Deactivate

Police officers may deactivate a human source when there is no further operational need for the source or if they are to be transitioned to the role of a witness in the prosecution of a criminal offence.

Victoria Police human source policy

Victoria Police has produced internal guidance for officers about the use of human sources since 1986. It issued the first comprehensive organisation-wide policy in 2003.

The current policy is:

• Victoria Police Manual—Human Sources (Human Source Policy)—a document that sets out requirements for risk assessment, registration, management and deactivation of human sources. It also sets out the roles and responsibilities of those involved in the use and management of human sources and outlines other requirements; for example, relating to record keeping and approval of payments to human sources.

For most of the Commission’s inquiry, from December 2018 to May 2020, the Human Source Policy in force was the May 2018 version. A new policy dated 15 April 2020 came into force on 4 May 2020.

Human source management roles and responsibilities

As shown in Figure B, the governance and decision-making structure in Victoria Police’s human source management framework is multi-levelled and consists of:

• handling teams
• centralised internal oversight
• governance by senior officers and committees.

Figure B and the information in this section represent Victoria Police’s current governance arrangements, roles and responsibilities, but these are broadly consistent with those that existed when Ms Gobbo was used as a human source from 2005–09. There are some key differences, however—for example, the Human Source Ethics Committee was only introduced in 2014.

Figure B: Human source governance structure, Victoria Police

Handling teams

A handling team is a team of police officers responsible for the handling and management of a human source. Handling teams may be ‘dedicated’ or ‘non-dedicated’:

• Dedicated source team (DST)—a team of police officers who are dedicated to and specialise in managing human sources. These teams may also focus on recruitment and development of new sources.
• Non-dedicated handling team—a team of police officers who manage human sources but also have other policing duties, such as investigating crime.

In either case, a handling team is made up of the following police officers, listed here in ascending order of seniority:

• Handler—an officer who acts as the primary point of contact for a human source.They are also responsible for applying to register a prospective human source, keeping and maintaining the records associated with the source’s registration and notifying senior officers of issues and risks that may arise in managing the source.
• Co-handler—an officer who assists the handler and acts as the primary point of contact for a human source if the primary handler is unavailable.
• Controller—an officer generally at the rank of Sergeant or above, who directly supervises the handler and co-handler. They monitor and review human source files to ensure compliance with policy requirements, such as the completion of risk assessments, documentation of contacts with the human source, and requests for deactivation. A controller also provides guidance to the handler and co-handler and is responsible for knowing how, where and when handlers are meeting with human sources.
• Officer in Charge (OIC)—an officer generally at the rank of Senior Sergeant or Inspector, who has responsibility for managing the officers in the handling team (except the Local Source Registrar). They review registration applications and provide oversight and advice.
• Local Source Registrar (LSR)—a Superintendent who heads a divisional command and who has responsibility for oversight of handling teams in their division. LSRs were previously known as Local Informer Registrars. The LSR endorses, rejects or makes recommendations in relation to proposed actions or applications, such as registering or deactivating a human source. In doing so, they are required to review and evaluate the risk assessments and mitigation strategies and ensure that required documentation is uploaded to the electronic investigation and intelligence management system, Interpose, within specified timeframes.

During Ms Gobbo’s third registration as a human source in 2005–09, she was handled by the Source Development Unit (SDU) and its predecessor, the Dedicated Source Unit (DSU). Both units consisted of specially trained handlers and controllers.

Centralised internal oversight

Centralised internal oversight is a governance model where one section of an organisation is responsible for setting standards and overseeing a certain function. In Victoria Police’s human source management framework, this is performed by the:

• Central Source Registrar (CSR)—the Detective Superintendent, Covert Services Division. The CSR has oversight of all human source registrations and activity and has final decision-making authority if a disagreement about the handling and management of individual human sources arises.
• Human Source Management Unit (HSMU)—a unit within the Covert Services Division that:
  • oversees all human source activity to ensure compliance with the Human Source Policy requirements
  • provides advice and support to handling teams
  • coordinates and provides human source management training.

The Covert Services Division is one of the six divisions that form Victoria Police’s Intelligence and Covert Support Command.

Broadly, these roles and functions have existed in Victoria Police’s human source management framework since 2007; however, prior to 2006, the HSMU’s role was performed by the then Informer Management Unit and, prior to 2007, the CSR was called the Central Informer Registrar.

Governance and final registration

Under its current Human Source Policy, and as shown in Figure B, Victoria Police’s internal governance and decision-making structure for human source management is carried out by the:

• Human Source Ethics Committee—an internal Victoria Police committee, established in 2014 and chaired by the Assistant Commissioner, Intelligence and Covert Support Command, that provides governance and approves the registration of certain human sources, including those involving legal obligations of confidentiality or privilege.
• Assistant Commissioner, Intelligence and Covert Support Command—the officer who oversees all human source management across the organisation and is responsible for the Human Source Policy.
• Deputy Commissioner, Specialist Operations—the officer who is responsible for the promotion and implementation of the Human Source Policy. Since May 2020, the Deputy Commissioner has been responsible for approving: (a) any registration of a human source where it is intended to obtain legally confidential or privileged information; and (b) any proposed use of information that appears to be in breach of a human source’s legal obligations of confidentiality or privilege.
• Human Source Advisory Committee—an internal Victoria Police committee, chaired by the Central Source Registrar, that provides strategic advice, feedback and guidance in the management of human sources. It is the conduit between Victoria Police regions and commands that manage human sources, the Central Source Registrar and the Human Source Management Unit.
• Human Source Rewards Committee—an internal Victoria Police committee, chaired by the Assistant Commissioner, Intelligence and Covert Support Command, that manages and approves the payment of cash or any benefit to a human source as a reward for information given to Victoria Police.

As this governance structure has only existed since 2014, not all these arrangements were in place in 2005–09 when Ms Gobbo was registered as a human source. Victoria Police’s human source program did, however, report through a chain of command to an Assistant Commissioner and Deputy Commissioner. There were also similar committees to the Human Source Rewards Committee that were responsible for approving payments to human sources, including one called the Payments Committee.

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

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

• 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

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

Introduction

The Commission’s inquiry, taken at its broadest, had two essential purposes: to identify potential miscarriages of justice, and to restore the community’s faith in the criminal justice system by exposing past failures and recommending measures to avoid such failures in the future.

The Commission was established to inquire into the conduct of Ms Nicola Gobbo in giving information about her clients to police, and the conduct of Victoria Police in using her as a human source. Their conduct—which resulted in the conviction and imprisonment of numerous individuals—has had significant implications not only for those whose cases may have been directly or indirectly affected, but also for the integrity of our criminal justice system.

Members of the public might question the need to scrutinise and denounce seemingly effective intelligence-gathering by the police. The fact that Victoria Police was able, with Ms Gobbo’s assistance, to secure convictions against those accused of committing serious violent and drug-related offences could be regarded as a positive outcome for the community.

As the High Court of Australia identified, however, the conduct of Ms Gobbo and Victoria Police amounted to a corruption of the criminal justice system.¹ Police are not entitled to pursue suspects at any cost—the community’s laws impose constraints on their power. Lawyers cannot freely hand over information about their clients to police—if they do so, they risk breaching their professional duties and obligations, and corrupting the justice system.

These laws exist because the community collectively places great importance on ensuring that the criminal investigation and trial process is fair, so that the public can have confidence that its criminal justice system is in fact just.

When the State prosecutes, convicts and punishes a citizen, it uses its considerable power and resources. To prevent it from abusing that power against individual citizens, it must observe well-established principles and processes to ensure, as far as possible, that there is ‘equality of arms’ between the parties—that is, that both the prosecution and the accused person have equal opportunity to make their case.² Consistent with the rule of law and the principles underpinning the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter), these arrangements apply no matter how serious the crime, and regardless of the identity of the accused person.³

Fair trial principles are therefore fundamental tenets of our democratic society. They protect unjustified incursions into the freedom of all citizens and help ensure that the same law applies to every person in society equally. Fairness underpins and fosters public trust and confidence in, and therefore the legitimacy of, the criminal justice system. The system cannot operate effectively if it does not command the public’s trust and confidence.

In our criminal justice system, failure by police and lawyers to comply with fair trial principles, laws governing investigation methods and professional duties can have serious consequences. The corruption of the fair trial process can result in, among other things, an accused person not having to face trial, a conviction being overturned, an order for acquittal, a new trial or a person being released from custody.

This chapter provides a brief overview of the criminal justice system, the roles and responsibilities of those working within the system, and the principles that need to be observed if it is to operate effectively.

It focuses on three aspects of the criminal justice system that are central to the Commission’s inquiry:

• the use of human sources to prevent, detect and solve crime
• police officers’ duties and obligations
• lawyers’ duties and obligations.

In particular, this chapter explains how principles and processes are applied to strike an appropriate balance between supporting police to combat crime and protecting citizens’ fundamental rights.

Later sections of this report consider these topics in greater detail when analysing the conduct of Ms Gobbo and Victoria Police, and examining the measures required to address Victoria Police’s management of human sources, in particular those where legal obligations of confidentiality or privilege may arise.

Overview of Victoria’s criminal justice system

Criminal justice system foundations

Our criminal justice system is founded on two broad imperatives:

• protecting community safety by empowering the State—through its agencies, to detect, investigate and prosecute crime; and through its independent courts, to convict and punish guilty offenders
• protecting individual citizens by guarding against the State and its agencies exercising their power arbitrarily, corruptly and/or unfairly.

These two imperatives are fundamental to our democratic society; and laws, principles and procedures have evolved over centuries to strike the appropriate balance between them. Individually, these laws, principles and procedures may sometimes seem to be obscure or technical, or even obstacles to the effective delivery of justice. Yet collectively, they enable the criminal justice system to uphold each of these fundamental imperatives, without one unduly undermining or compromising the other.

There are serious consequences for not giving these imperatives their due weight. The risks of not facilitating the investigation, prosecution and punishment of criminal activity are obvious. Our individual and collective safety relies on such conduct being publicly condemned, wrongdoers being held accountable for their actions, and action being taken to prevent further criminal activity. Without an effective criminal justice system, our society would descend into anarchy and vigilantism.

Accordingly, as a community, through Parliament we empower executive agencies within the criminal justice system to protect us from harm and to prosecute those alleged to have caused harm in independent courts. This is achieved by establishing and resourcing these agencies (the police service, prosecution authorities, and corrections services), and legislating to give them functions and powers so they can do their work. It is also achieved by establishing and resourcing an independent judiciary and court system, which perform a critical role in our democracy.

There are also consequences if these agencies do not exercise their powers lawfully, rigorously and competently. To properly administer justice, extensive checks and balances are needed throughout the criminal justice system. These include ensuring that those exercising discretionary executive power act independently, follow established principles of fairness, comply with professional duties, and act with integrity, appropriate transparency and accountability.

If the criminal justice system does not work in this way, there are risks that:

• people could be vulnerable to arbitrary, unjust, corrupt or incompetent action by the State
• innocent people could be wrongly convicted and punished, and guilty people could avoid prosecution, conviction or punishment
• the community could lose confidence and not engage with the criminal justice system—this could include victims opting not to seek the State’s protection, witnesses not cooperating with authorities, offenders not complying with court decisions and sanctions, jurors not convicting offenders even when evidence tends to suggest guilt beyond reasonable doubt, and wrongdoers not being deterred from committing crime.

The practical risks for individual cases are equally as serious. If criminal investigations or prosecutions are so compromised that an accused person is denied fundamental rights, then convictions may be overturned and alleged offenders may be released from custody. The time and effort expended, and paid for by the community, may be for nothing. If new trials are granted, victims may be forced to endure further proceedings long after the alleged offences occurred and the recollections of witnesses have faded. All of this can lead to diminished public trust in the criminal justice system.

Criminal justice system processes

Australia’s Constitution establishes a separation of powers between the Parliament, the executive government and the courts, as does Victoria’s Constitution.⁴ Under this system, the Parliament makes the law, the executive government—through the police and prosecution agencies—enforces the law, and independent courts (the judicial arm of government) interpret and apply the law.⁵ In the criminal justice system, the separation of powers principle means that the Parliament is responsible for passing laws about what acts constitute a crime, the executive government is responsible for investigating and prosecuting crimes and enforcing court sentences, and independent courts are responsible for interpreting the laws, deciding whether a person is guilty or not guilty and sentencing.

When a crime is alleged, the police will investigate, gather evidence and identify suspects. A person who is suspected of committing a crime might be arrested by the police and questioned about their involvement in the crime.⁶ If the police are satisfied that there is sufficient evidence to indicate that the suspect committed the crime, they may decide to charge the person with a criminal offence.⁷ Offences can be ‘summary’ (less serious) or ‘indictable’ (more serious). Less serious cases are tried in the Magistrates’ Court of Victoria and more serious offences are tried in the County Court of Victoria and Supreme Court of Victoria.

Once a person has been charged with a crime, their guilt or innocence is determined in independent courts. After being charged, the person becomes known as an ‘accused person’ or a ‘defendant’.

A criminal case is a contest between two opposing sides. On one side, the prosecution represents the State. It presents the case against the accused person and is responsible for proving beyond reasonable doubt that the accused committed the crime. On the other side, the defence represents the accused person, and challenges the prosecution’s case if the accused pleads not guilty.

If the accused person pleads guilty, or the court finds them guilty, they will be sentenced by an independent magistrate or judge. Punishment may include, among many sentencing options, a fine, a community correction order or a sentence of imprisonment.⁸ A person who has been found guilty and sentenced is known as an ‘offender’.

A person convicted by a court is generally entitled to appeal, or to apply to appeal their conviction and/or sentence to another independent court.⁹ A successful appeal can result in a conviction being overturned, a verdict of acquittal being entered, a re-trial being ordered or a sentence being varied.¹⁰ The appeal process is discussed in more detail in Chapter 5.

Roles and responsibilities

A range of agencies, office holders and professionals play critical and distinct roles in the criminal justice system. Events of most direct relevance to the Commission’s inquiry are those involving the police in collecting intelligence, and investigating and assisting in the prosecution of cases, and Ms Gobbo as a defence lawyer and human source. The roles played by the prosecution service and courts are also relevant to considering the legality of the conduct of Victoria Police and Ms Gobbo.¹¹

Police

The role of Victoria Police is to serve the Victorian community and uphold the law to promote a safe, secure and orderly society.¹²

The police are responsible for, among other things, investigating crime, collecting intelligence and evidence, interviewing witnesses and suspects, and arresting and charging suspects. Police officers use a range of investigative powers and methods to carry out these responsibilities, including gathering intelligence and evidence covertly—that is, without the knowledge of the public or the person against whom it is being used. Examples of covert intelligence-gathering methods include the use of surveillance devices and human sources.

Once a suspect has been charged, the police compile a ‘brief of evidence’ that contains details of the evidence to be led in court to support the charge. The accused person is entitled to see the brief of evidence so they can prepare their defence.

Police officers are sometimes required to give evidence in court about the processes by which they investigated the crime, and defence lawyers may be entitled to ask questions about this.

Police use of human sources, and police officers’ general duties and obligations, are discussed below.

Prosecution

Prosecutors represent the Crown and exercise the powers of the State in criminal cases. They appear in court to present the case against the accused person. In Victoria, most summary cases are prosecuted by police officers working in a specialised division of Victoria Police.¹³ Indictable cases are prosecuted by the Victorian Director of Public Prosecutions (DPP)¹⁴ or other lawyers who act for the DPP.¹⁵ Federal crimes are prosecuted by the Commonwealth Director of Public Prosecutions.

Like judicial officers, prosecutors play an important role in ensuring that an accused person receives a fair hearing in criminal cases. This promotes public confidence in the criminal justice system.¹⁶

The prosecution’s role, if there is sufficient evidence to support the charge, is to prove beyond reasonable doubt that the accused person committed the crime by leading the necessary evidence. In undertaking this role, the prosecution has obligations to act fairly.

Prosecutors’ duties, in particular their duty to disclose all relevant evidence, are discussed below.

Defence lawyers

Criminal defence lawyers play a vital role in providing advice to, and representing the interests of, accused persons at various stages of the criminal justice process. The right of a person charged with a criminal offence to communicate with a lawyer is enshrined in Victoria’s Charter.¹⁷

A defence lawyer’s involvement often begins when a person suspected of committing a crime is to be formally questioned by police. Before starting any questioning, the police must inform the person that they have a right to communicate with a lawyer, and they must allow this communication to take place.¹⁸ This helps ensure that a suspect is treated fairly and that their interests are protected from the beginning of their contact with the criminal justice system.

A defence lawyer’s role in the criminal justice system is to represent the interests of the accused person and to provide them with independent, competent advice. In some cases, particularly those involving serious crimes, a lack of legal representation may mean that an accused person is unable to receive a fair hearing.¹⁹

Defence lawyers advise an accused person to help them decide whether to plead guilty or not guilty.²⁰ This step is important not only in promoting an accused person’s right to be presumed innocent, but also in ensuring an efficient criminal justice system—if a person pleads guilty, the cost of and time taken in holding a trial can be avoided, as can any trauma for victims and witnesses in testifying at trial.²¹ An accused person who pleads guilty may receive a reduced sentence in recognition of these benefits.²²

If an accused person pleads not guilty and the case proceeds to a trial, a defence lawyer’s expertise can be critical in testing the evidence the prosecution puts forward. They may cross-examine witnesses and challenge aspects of the prosecution’s case to determine whether there are any gaps or doubts about the evidence being presented to establish the accused person’s guilt. They will discuss with the accused person whether to give or call evidence and whether to plead guilty to some or all of the charges, and will present any defence case. Without the assistance of a defence lawyer, the fairness of the process for the accused person may be compromised.

If an accused person pleads guilty or is found guilty by the courts, a defence lawyer also provides information helpful to the accused person to the sentencing magistrate or judge.

Lawyers’ duties to their clients and to the court are discussed below.

Courts

Courts are presided over by independent judicial officers (judges or magistrates) who have overall responsibility for the conduct and supervision of criminal cases in the court system.²³

The judicial officer’s most significant responsibility in a criminal case is to ensure that the accused person receives a fair hearing.²⁴ They also make rulings on legal issues, including what evidence can be used in the hearing.²⁵

Juries allow the community to be part of the criminal justice system. They are usually responsible for determining whether an accused person is guilty or not guilty in serious criminal cases.²⁶ In less serious matters, it is the judicial officer who decides whether to convict or acquit the accused person.²⁷

Judicial officers have sole responsibility for sentencing a person who has been found guilty of a crime. The sentencing process involves balancing competing principles and objectives, such as punishment, deterrence and rehabilitation, to determine an appropriate penalty.²⁸

Principles of the criminal justice system

As noted earlier, the criminal justice system is governed by laws and principles that ensure that when the State is prosecuting an individual, the process is fair to the accused person so that the public can have confidence in the administration of justice. In certain circumstances, these rules require a balancing exercise to be undertaken to ensure different public interest considerations are given the appropriate weight.

The following interrelated principles are of most direct relevance to the Commission’s inquiry, and are outlined in this section:

• the rights of an accused person
• prosecutorial duties
• independent courts and open justice.

The professional duties of police and lawyers are also integral to the proper administration of the criminal justice system. They are discussed in later sections of this chapter.

The rights of an accused person

An accused person is entitled to a fair trial. The right to a fair trial or hearing is reflected in both legislation and in common law principles. It is enshrined in Victoria’s Charter, which provides that an accused person has the ‘right to have the charge … decided by a competent, independent and impartial court after a fair and public hearing’.²⁹

An accused person has specific rights that should be adhered to if a trial is to be fair:

• the right to be presumed innocent until proven guilty—this places the onus (burden) on the prosecution to prove, beyond reasonable doubt, that the accused person committed the crime or crimes charged
• the right to have legal representation
• the right to know the case against them—this requires the prosecution to disclose all evidence relevant to the charges, including information that might undermine the prosecution case or assist the accused person
• the right to remain silent—this includes a right to refuse to answer questions during a police interview and a right not to be forced to incriminate themselves
• the right to be tried without unreasonable delay
• the right to examine witnesses to test the factual basis of their evidence and their credibility.³⁰

These rights are not absolute—they can be limited or qualified if justified for other reasons. Any limitations or qualifications, however, must be reasonable; that is, such limits need to be ‘demonstrably justified in a free and democratic society based on human dignity, equality and freedom’.³¹

The courts are ultimately responsible for ensuring that an accused person receives a fair hearing. What is required to ensure that a hearing is fair will ultimately depend on the circumstances of the case, and requirements may change over time in line with changing community expectations.³²

If an accused person is unable to secure a fair hearing, the court may decide to grant a permanent stay of the prosecution (an order stopping the case from continuing) because the court considers it an abuse of process.³³ In practical terms, a permanent stay means that the prosecution must be abandoned. While there is a significant public interest in prosecuting persons accused of serious crimes, and in the courts determining whether or not these persons are guilty, the hearing must be fair.³⁴ Otherwise, any ‘verdict of guilty, and the criminal conviction that follows it, is intrinsically flawed’.³⁵ The court’s power to grant a permanent stay, although reserved for extraordinary cases, reflects the importance of a fair hearing in the criminal justice system.³⁶

Prosecutorial duties

As agents of the State, all prosecutors have a duty to act as impartial ‘ministers of justice’ and must act in a way that assists the court to discover the truth.³⁷ This general duty of impartiality has several elements, including duties to act fairly, not to seek a conviction at all costs, and to call all relevant credible witnesses in the prosecution case.

Another duty central to this inquiry is the duty to disclose all relevant material to the defence.³⁸ The prosecution’s duty of disclosure is not limited to material that the prosecution will rely on and that supports the prosecution case, but extends to any other relevant material that may assist the defence case or undermine the prosecution case.³⁹ The prosecution must disclose anything relevant to the guilt or innocence of the accused person.⁴⁰

The duty of disclosure applies to ‘the prosecution’ in a broad sense. This includes police prosecutors, the DPP, the CDPP and other lawyers who act on behalf of prosecuting authorities to prosecute a crime. For disclosure purposes, police are considered part of the prosecution. This means that police have a duty to disclose relevant material in their possession to an accused person regardless of whether the particular prosecutor is also aware of the existence of that material.⁴¹

The duty of disclosure supports a fair hearing in many ways, including by ensuring an equality of arms between all parties.⁴² A failure to make proper disclosure can result in a miscarriage of justice and may lead to a conviction being set aside (overturned) on appeal, on the basis that the accused person did not receive a fair trial.⁴³

There are some exceptions to the duty to disclose all relevant information. For the purposes of the matters relevant to this inquiry the main exception is public interest immunity (PII).

PII is a legal principle recognised by the common law and is also a rule of evidence.⁴⁴ It allows a person to refuse to disclose relevant material that they would otherwise need to disclose, because that disclosure would go against the public interest. Ultimately, this will depend on an assessment of whether the imperative to disclose the information to the accused person is outweighed by other policy and public interest considerations.⁴⁵

In a criminal proceeding, when PII applies, it acts as an exception to a prosecutor’s duty to disclose all relevant material. If material is held to be covered by PII, it cannot become evidence in the case. It therefore qualifies an accused person’s right to know the case against them.⁴⁶ Importantly, neither the prosecution nor the police is responsible for ultimately deciding whether PII applies. This is a matter for an independent court.⁴⁷ In some circumstances, the court may hear applications relating to PII without the defence being notified.⁴⁸ In determining whether PII applies, the court must assess whether allowing the material into evidence in the case outweighs the public interest in preserving the secrecy or confidentiality of the material.⁴⁹

When a PII claim is made regarding the use or identity of a human source, considerations that support protecting the identity of a human source (preserving sources of information and thereby supporting the prevention and detection of crime, and protecting the personal safety of human sources and their families)⁵⁰ must be balanced against competing considerations that support disclosure (promoting open justice and ensuring a fair hearing, including by giving an accused person an opportunity to fully challenge the prosecution’s case against them).⁵¹ To ensure the accused person has access to evidence critical to their defence or, as in some cases involving Ms Gobbo, when basic premises of the criminal justice system are debased so that the accused person cannot have a fair trial, the latter considerations—those favouring open justice—will generally prevail.⁵²

Independent courts and open justice

The separation of powers principle requires that courts must be, and be perceived to be, independent and impartial in making decisions about the law. Independence and impartiality are fundamental to the administration of justice. These principles promote an accused person’s right to a fair hearing, and foster public trust and confidence in the integrity of the judicial arm of government: the courts.⁵³

Courts play an active role in monitoring whether all aspects of the trial process are fair to the accused person —that the accused person’s right to be presumed innocent is observed, that they understand the case against them and that they have the opportunity to test the prosecution evidence. Courts are vigilant in ensuring that their processes are not used to oppress parties. They have broad powers to expose and remedy any abuse of process that may undermine the fairness of the trial.⁵⁴

Openness in the court system is an equally important principle and ensures that justice is not only done but also seen to be done. It requires that, generally, court proceedings are held in public and that information disclosed in court can be communicated freely, including by the media.⁵⁵ Adherence to this principle is critical to maintaining public confidence in the courts.⁵⁶ Open justice is necessary because ‘secrecy is conducive to the abuse of power and, thus, to injustice’.⁵⁷

Victorian law recognises the importance of open justice and the free communication of information, including in demonstrating to the public that laws are applied fairly and effectively.⁵⁸ In Victoria, hearings in open court are favoured, as is allowing the disclosure of information before the court.⁵⁹

The open justice principle may be qualified in some cases, such as on the basis of a PII claim. The court may need to decide cases behind closed doors or limit the disclosure of information in a proceeding to prevent prejudice to the administration of justice.⁶⁰ There are several recognised categories of cases to which this qualification may apply, including cases involving human sources.⁶¹

The use of human sources to prevent, detect and solve crime

As discussed in Chapter 1, 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.

Police might recruit a human source to observe or infiltrate a criminal enterprise.⁶² Human sources may actively seek out further intelligence or information if police direct or ask them to. They may also develop or maintain a relationship with other people so that they can provide information about them to police.⁶³

Human sources are a critical source of information and intelligence for law enforcement, especially in efforts to combat serious and organised crime and corruption, sometimes to prevent crimes before they occur.⁶⁴ Police have increasingly valued human sources as some traditional and new technologies have become more susceptible to counter-technologies, such as encryption.⁶⁵ As they are sometimes involved in criminal conduct themselves, human sources can provide police with access to criminal networks and activities that police often cannot access through other means.⁶⁶

Risks associated with the use of human sources

While the use of human sources has been described as ‘one of the most effective weapons in the hands of the detective’,⁶⁷ it can also be fraught with risks—to the human source, to the police officers involved, and to the administration of justice.⁶⁸

Significant harm may come to the human source if their role is revealed to the people on whom they are informing.⁶⁹ A person who provides information to police as a human source, therefore, typically does so expecting that their identity will be protected.⁷⁰ For these reasons, police can be understandably reluctant to disclose information about human sources in subsequent criminal proceedings.

Other risks or concerns include:

• improper associations between police and human sources—the covert relationship between police and human sources can ‘[lend] itself to corruption and unethical behaviour’⁷¹
• police ‘licensing’ the human source to commit crime in the course of gathering intelligence⁷²
• exploitation of police by the human source to gain an advantage or to engage in further illicit activity—sources are motivated to assist police for many reasons, including gaining an advantage over criminal adversaries, or the prospect of a financial reward or discounted sentence⁷³
• the human source providing tainted, unreliable or fabricated information
• manipulation of the human source, arising from a power imbalance between police and the source⁷⁴
• infringing the human rights of the people who are the targets of the intelligence-gathering—for example, their rights to privacy, reputation and a fair hearing under the Charter.⁷⁵

There are also specific issues associated with human sources who are subject to legal obligations of confidentiality or privilege—that is, who have duties not to disclose the information they have even if it may be relevant to a police investigation. Human sources with legal obligations of confidentiality or privilege are central to the Commission’s inquiry and are discussed in Chapter 4.

An accused person may be denied access to the full details of the evidence that has been gathered because of the use of a human source, despite the prosecution’s duty of disclosure. As noted above, the use and identities of human sources are often subject to PII claims. This is partly because of the substantial risk of harm to them and their families if their identities as human sources become known, and partly because of the community safety benefits to be gained from the continued use of human sources generally, as they will be unlikely to offer their services if their identities are not protected.

A successful PII claim may affect the right of an accused person to know the full details of the case being made against them, to test the veracity or quality of the evidence being presented, or to challenge the lawfulness of the investigation techniques used by the police.⁷⁶

Concerns may also arise about systemic issues or problems in the use of human sources by police. Because their use is ordinarily hidden from the public, it is difficult to determine whether police recruitment and management of them is appropriately mitigating the risks involved and is complying with relevant laws, policies and guidelines. Powers that are exercised in secret tend to be more susceptible to misuse, and there is a strong public interest in independently scrutinising their use.

Management of risks

Police must carefully manage and control the risks of using human sources through robust policies, procedures and practices, with accountability, oversight and appropriate transparency. Equally, the measures put in place to manage these risks need to protect the identity of human sources and their families. The measures need to be workable for police officers to implement effectively and must not discourage or deter human sources from assisting police in ongoing and future investigations.

An effective system for the management of human sources should have clear, consistent and practical rules and processes, and be secure and functional. Such a system should prevent corruption and provide adequate protection to human sources and their police handlers (the officers responsible for managing sources). In doing so, it should also help to maintain the community’s trust and confidence in its police service.

In many law enforcement agencies across Australia and internationally, the management of human sources has evolved in recent decades from an unstructured model of individual police officer-human source relationships to ‘a more comprehensive, professional and ethical system of recruiting and managing sources’.⁷⁷ Contemporary human source management is governed by detailed policies and guidelines that introduce new levels of scrutiny and accountability, and formally recognise the source as an asset of value to the law enforcement agency as a whole, instead of as an informal resource for individual police officers.⁷⁸

Policies and codes of practice governing the management of human sources typically cover the processes involved in all phases of the relationship with the source: requests for human source assistance, recruitment, registration, interaction, payment and deactivation.⁷⁹ Current Victoria Police processes for the use of human sources are outlined in Chapter 12.

Although human source management policies and practices may differ across and within agencies, they generally provide for:

• assessing and evaluating the value of the information that the source can provide and the risks involved in engaging them, often by using a standard risk assessment tool
• approval, registration, formal tasking and directing of sources (the source may also be asked to sign a document acknowledging their responsibilities and the parameters of their relationship with police)
• day-to-day management of sources, including documentation of all interactions with them, and of decisions made about their use
• training of officers involved in managing sources
• appointment of police handlers and controllers to manage sources
• processes and arrangements to protect the identity of sources
• instructions about use, handling and destruction of information, and disclosure requirements in criminal proceedings
• guidance material about ethical and legal considerations
• requirements for regular supervision, internal compliance audits and reviews by senior officers or ethics committees.⁸⁰

Risks can also be addressed through external governance of police use and management of human sources; for example, through legislative frameworks and codes of practice. Documenting processes and standards in legislation can support greater transparency and accountability of police actions and decisions, provide clarity and protection for police officers, and strengthen safeguards against unethical or high-risk conduct. Laws that apply generally to police also play an important role in imposing duties on individual officers in exercising their functions and powers. These laws not only protect those being investigated, but also provide guidance and protection to the officers. They are discussed in the next section.

Some aspects of the laws of evidence can also be considered an indirect form of governance of police use of covert powers and methods, such as the use of human sources, because these laws enable courts to exclude evidence that has been improperly obtained if including it would compromise the fairness of the trial process.⁸¹ These laws, however, can only be used if the accused person or the court becomes aware of the investigation techniques that generated the evidence. If there are no other forms of regulation—such as legislation or codes of practice—governing the use of covert powers and methods, it is unlikely that the accused person or the court will have this knowledge.

These issues are discussed in further detail in Chapters 12–14.

Duties of police officers

The public naturally expects police officers to uphold the law and to exercise their considerable power and authority according to law. Police are therefore subject to duties, obligations and professional standards that protect the freedoms of citizens, ensure that those charged with offences receive a fair trial, and promote overall community confidence in the police service.

As a public authority, Victoria Police must adhere to the provisions of the Charter when performing its functions and must act in ways that respect people’s human rights.

By law, each police officer must promise to fulfil their duties ‘faithfully and according to law’ and ‘without favour or affection, malice or ill-will’ before they can commence service.⁸²

Victoria Police recognises the importance of individual police officers acting honestly, fairly and with integrity, and this is reflected in the professional and ethical standards that apply to all Victoria Police employees (both sworn police officers and public servants employed by Victoria Police).⁸³

The Victoria Police Manual reminds officers that:

In taking on the authority and responsibility that comes with being a Victoria Police employee, you are held to a higher standard of conduct in both your public and private lives and are more open to public scrutiny than many other members of the public.⁸⁴

The Manual explains that acting with integrity involves being honest, respecting the right of fair process for all, demonstrating moral strength and courage, and behaving with honour and impartiality.⁸⁵

Police officers are authorised to exercise powers that can interfere with the day-to-day rights and freedoms of citizens. They can search and seize property; administer drug and alcohol tests and take forensic samples; question people; issue intervention orders excluding people from entering their own homes; and arrest suspects and take them into custody. Some police powers are covert, and therefore intrude on other specific rights, such as privacy. These include the use of audio, visual and data surveillance devices, covert searches and human sources, and the deployment of undercover police officers. It is critical that, in using these powers, police follow the limits set by Parliament and the courts.

Police are also responsible for gathering evidence that can be used in court, and for starting proceedings against an accused person. In this context, and as agents of the State, they must follow laws and processes to ensure that the accused person receives a fair trial. Their conduct is relevant to whether the investigation and prosecution have been conducted lawfully. So, if police obtain evidence unlawfully—for example, by seizing property without a warrant or using a listening device without authorisation—the court may refuse to allow that evidence to be used at trial, potentially weakening the prosecution’s case. When unlawfully obtained evidence is admitted during trial and there has been no scrutiny of how it was gathered, an appeal court may decide that its use undermined the fairness of the trial as a whole. This, in turn, may justify overturning a conviction.

As discussed above, police are also bound by the duty of disclosure that applies to prosecutors. If they fail to disclose relevant evidence, this may similarly lead to a ruling that the accused person has not been given a fair trial.

To fulfil its role in preventing and investigating crimes, the police service relies on members of the community to report crimes or other suspicious activity. The community’s willingness to work in partnership with the police, and the effectiveness of police efforts in preventing and investigating crime, depend on the public having trust and confidence in the police.⁸⁶ To earn this trust and confidence, police officers must uphold the law. Unlawful, unethical or questionable conduct of individual police officers can erode public trust and confidence in the police service as a whole.⁸⁷

Lawyers’ duties and obligations

Lawyers have detailed duties, professional obligations and ethical standards that have two concurrent purposes: to ensure they uphold the proper administration of justice and to act in the best interests of their clients. Lawyers’ compliance with their duties supports public confidence in the legal profession and the justice system.⁸⁸

Lawyers’ obligations are drawn from a range of sources, such as the Legal Profession Uniform Law, professional conduct rules and the common law. Some of the key duties and obligations held by lawyers that are relevant to the Commission’s inquiry are described below. They are discussed in further detail in Chapters 4, 5 and 15.

Duty to the court

Lawyers are integral participants in the administration of justice, and upon admission to the legal profession become ‘officers of the court’.⁸⁹ They have an overriding duty to the court and to act in the public interest, which means ensuring the integrity of the law and legal process. Out of this arises their duty to assist the court in the administration of justice.⁹⁰ This duty is reflected in legal profession conduct rules specifying that lawyers must not engage in conduct that is likely to be prejudicial to, or diminish public confidence in, the administration of justice, or to bring the legal profession into disrepute.⁹¹

A lawyer’s duty to the court is paramount.⁹² They cannot act only in their client’s interests to the detriment of ensuring that justice is delivered in accordance with the law.⁹³

The duty to the court requires lawyers to act honestly in all their dealings with the court and other lawyers.⁹⁴ They must never mislead the court, and must be frank in their responses and disclosures to it.⁹⁵ For example, if a client confesses guilt to their lawyer and then wants to give evidence in court that they are not guilty, the lawyer’s paramount duty to the court will usually require that they cease to act for the client—to do otherwise would amount to misleading the court.⁹⁶

Relevant to this inquiry, a breach of the duty to the court is likely to arise in the circumstances described below, where there has been a breach of another concurrent duty—such as a lawyer’s failure to disclose a conflict of interest.

Duties to the client

Lawyers have considerable authority and power when representing a client—they have knowledge and expertise about the law and legal system, and are privy to their client’s confidential information. Their advice and actions can have a direct influence on the outcomes the client is able to achieve.

So, while lawyers owe a paramount duty to the court, they also owe a duty to their client to act in the client’s best interests.⁹⁷ This duty promotes trust and helps remedy the imbalance of power between lawyers and their clients. It is subject to the overriding duty to the court, and exists to protect clients from careless or deliberate conduct by their lawyer that might adversely affect their interests. In the criminal justice system, lawyers’ compliance with these obligations is integral to providing the accused person with a fair trial, and therefore integral to the system itself.

To enable their lawyer to act in a client’s best interests, the client must know they can speak as freely as possible when consulting them. Accused persons, and clients of lawyers more generally, should feel comfortable in frankly providing all necessary information without fear that it will be given to anyone else, or later used against them. If clients withhold important information from their lawyers for fear the lawyer might tell the police, the prosecution or the judge without their permission, the client might well receive incomplete or inaccurate advice, and unfavourable outcomes in negotiations or court decisions. This may also lead to courts making flawed or unsafe decisions because they have been provided with incomplete or misleading information.

Together with lawyers’ duty to the court, important rules and legal principles protect the confidentiality and ‘privilege’ of information that clients share with their lawyers, and of the advice lawyers give their clients. While these duties are fundamental to the administration of the justice system, they are not absolute—that is, there are some circumstances in which lawyers are permitted to disclose their communications with their clients.

Legal professional privilege

A client who engages a lawyer has a right to legal professional privilege. The statutory form of legal professional privilege in Victoria is called ‘client legal privilege’.⁹⁸

Legal professional privilege prevents a lawyer from disclosing certain communications or documents shared between the lawyer and client, even to the court. Communications or documents are only privileged if they came into existence for the dominant purpose of litigation (actual or anticipated) or providing legal advice.⁹⁹ The client can waive (give up) privilege, in which case their lawyer is permitted, or obliged, to disclose the communications or documents to others.

A breach of legal professional privilege could include disclosure to third parties of communications between a client and their lawyer where those communications predominantly related to the provision of legal advice, or actual or anticipated litigation.

A client’s right to claim privilege over communications with their lawyer is not absolute. Privilege can be lost in circumstances where the client, their lawyer or a third party engages in communications or prepares documents to commit a fraud, offence or other illegal act, or engages in an abuse of power; or if the client waives the privilege.¹⁰⁰

Confidentiality

Lawyers also have a broader duty of confidentiality to their clients, which requires that they do not disclose confidential information acquired from a client-lawyer relationship.¹⁰¹

There are limited exceptions to the duty of confidentiality. These might include when the client consents to the information being disclosed; when the information is obtained by the lawyer from another person in circumstances that do not attract confidentiality; or when disclosure is necessary to prevent a probable serious crime or imminent serious physical harm to the client or another person.¹⁰²

The duties of legal professional privilege and confidentiality are similar, but confidentiality applies in a broader range of circumstances. For example, discussions between a lawyer and client that occur socially but in circumstances where a client still believes the discussion to be one of confidence, while not attracting legal professional privilege, may still be confidential.¹⁰³

Duty to avoid conflicts of interest

Lawyers are required to promote and protect the interests of their client, and avoid conflicts of interest.¹⁰⁴ The client needs to be able to rely on their lawyer and trust that they are acting in good faith and in accordance with the client’s best interests, subject to the lawyer’s overriding duty to the court.

Conflicts of interest can arise when a lawyer’s duty to their client conflicts with the duties they owe to another current or former client, or with the lawyer’s own personal interests.¹⁰⁵ For example, a lawyer may be prevented from representing two clients in the same matter when the clients’ interests diverge to the extent that the lawyer is unable to act in the best interests of them both.

Implications for the Commission’s inquiry

The conduct of Ms Gobbo and Victoria Police that is the subject of the Commission’s inquiry was beset by breaches of fundamental legal principles and professional and ethical standards.

The criminal justice system can only produce just outcomes when it operates effectively as a whole—when those who work within it respect each other’s distinct role, comply with their duties and act with integrity. It cannot produce just outcomes when key actors disregard long-established principles designed to protect the democratic right to a fair trial, and instead are driven by results-focused behaviour without regard to the broader public interest in the proper administration of justice.

The Commission’s role has been to inquire into ways in which the conduct of Ms Gobbo and Victoria Police may have tainted and undermined the convictions of numerous people. Just as importantly, its role has been to restore public confidence in the criminal justice system by exposing any improper activities of those whom the community has entrusted to uphold the law, by assessing the adequacy of current policies and practices, and by recommending measures to protect against future misuse of power and breach of duty.

Victoria Police has now accepted that permitting Ms Gobbo to give them information about her own clients was ‘reprehensible’, and ‘an indefensible interference in the lawyer–client relationship that is essential to the proper functioning of the criminal justice system and to the rule of law’.¹⁰⁶ In a submission to the Commission,

Victoria Police stated that it ‘apologises to the courts whose processes were impacted by what occurred, and to the community for breaching its trust’.¹⁰⁷

Although the events the subject of the Commission’s inquiry took place in the past, they continue to have an impact many years later, as those whose cases have been affected file appeals and perhaps consider claims for compensation. Concerningly, public confidence in Victoria Police has diminished. A survey of Victorians conducted in September 2020 found that public rating of Victoria Police for honesty and ethical standards had dropped significantly over the period coinciding with the Commission’s inquiry. One of the main factors cited by respondents to the survey for their low ratings of police was Victoria Police’s conduct in using Ms Gobbo as a human source, which they believed was ‘unethical’ and ‘had undermined the legal system’.¹⁰⁸

Victoria Police itself has acknowledged that:

… the way in which Ms Gobbo was managed as a human source in a way that resulted in a profound interference with the relationship between lawyer and client was a major failing. The consequences of that failing are resonating through the criminal justice system and will do so for many years. It has come at a very high cost to the organisation, to public confidence and to the criminal justice system.¹⁰⁹

These consequences are a reminder that the carefully calibrated checks and balances that underpin the criminal justice system need to be valued and protected, even in the most challenging of times.

In publicly exposing Ms Gobbo’s and Victoria Police’s conduct, the Commission’s inquiry should reassure the community that disregard for the law and proper administration of justice will not go unchecked. It should also empower those whose convictions or findings of guilt may be affected to make informed decisions about any future action they may take.

The Commission’s recommendations aim to ensure the events that led to this inquiry cannot occur again, and to help guard against other potential or unforeseen cases of misuse of power or unethical conduct within the criminal justice system. They have been informed by reforms implemented in other jurisdictions, often in response to specific and identified problems and miscarriages of justice.

The Commission has examined the current laws, policy and practices that relate to the use of human sources in Victoria, and the obligations of police and lawyers in that context. Many changes have been implemented by Victoria Police and legal profession bodies since the events the subject of this inquiry took place.

The Commission’s policy recommendations are directed at remedying a number of gaps and shortcomings that persist in Victoria’s policy and governance arrangements in the following areas:

• the use and management of human sources, in particular those with legal obligations of confidentiality or privilege
• independent oversight of the use of human sources
• the use and disclosure of human source information in criminal proceedings
• regulation of the legal profession.

Together, the Commission’s recommendations aim to improve the transparency and accountability of the systems and processes that underpin the criminal justice system, and the capacity of agencies and individuals to fulfil their duties and obligations.

Fostering, embedding and embracing a culture of transparency, accountability and oversight is the most reliable mechanism the Victorian community has to ensure that, in the future, those tasked with administering the criminal justice system maintain the highest possible standards of conduct, and are not tempted to dispense with their duties and obligations, even when faced with challenging and high-profile investigations. A system with appropriate oversight, founded on transparency and accountability, is also critical for preserving the longevity of the policy and practice changes that have already been made by Victoria Police and others, as well as those recommended by the Commission.

The Commission has recommended a suite of reforms that, in combination, aim to create a robust framework that will improve the operation of various aspects of the criminal justice system. It is important that these reforms are considered and implemented together. They should also be monitored into the future to ensure that they have been successfully implemented and their intended purpose achieved.

The successful implementation of the Commission’s recommendations and the subsequent monitoring of those recommendations are key to assuring the Victorian community that the regrettable events leading to this inquiry will not be repeated. It is also key to assuring the community that their police service will work effectively and lawfully within the criminal justice system to protect them from criminal activity without unfair and unjustified incursions on the rights of individual citizens.

Endnotes

Introduction

The Commission’s inquiry commenced shortly after the public revelation that Victoria Police had used a former barrister, Ms Nicola Gobbo, as a human source. Prior to and during the inquiry, some of the people potentially affected, including former clients of Ms Gobbo, appealed their convictions to the Court of Appeal of the Supreme Court of Victoria. Accordingly, the Commission’s work attracted significant public interest.

From the outset, the Commission sought to conduct its inquiry as openly and as transparently as possible. In addition to addressing the matters set out in its terms of reference, the Commission had a critical role in illuminating the events that led to the inquiry, and in restoring public confidence and trust in the criminal justice system.

This chapter describes how the Commission approached its inquiry, in accordance with its terms of reference, its obligations under the Letters Patent, and its powers and obligations under the Inquiries Act 2014 (Vic) (Inquiries Act), including the requirements of procedural fairness.

The Commission’s work required a team with multidisciplinary skills, expertise and experience. The Commission’s policy and research, investigations, enquiries; operations and media and communications teams were supported by counsel appointed to assist the Commission (known as ‘Counsel Assisting’) and the Commission’s solicitors (known as ‘Solicitors Assisting’).

As discussed below, the Commission’s work included:

• seeking and obtaining relevant information; in particular, by issuing notices to produce and requests for information
• receiving submissions from members of the public, including potentially affected persons
• conducting hearings to examine evidence
• undertaking research and consulting with Victorian, interstate and international stakeholders and experts
• reviewing submissions from Counsel Assisting, and submissions from affected people and organisations received in response to Counsel Assisting submissions.

The matters the Commission considered were, at times, highly sensitive and could lead to safety risks for people giving information or evidence at its hearings and their families, or for those affected by the information examined. The Commission adapted its processes to mitigate those risks.

Over the course of the inquiry—almost two years—the Commission:

• received over 155,000 documents and materials from Victoria Police, individuals and other organisations
• received 157 submissions from members of the public or organisations during its public submissions process
• held 129 days of public or private hearings and examined 82 witnesses
• consulted with 97 individuals and organisations with experience and expertise relevant to terms of reference 3–6
• received 45 responsive submissions relevant to terms of reference 1 and 2 and four responsive submissions relevant to terms of reference 3–6.

The Commission faced a number of constraints and challenges that affected its reporting timelines and the way it conducted and reported on the inquiry, including challenges associated with the production of documents, the resolution of public interest immunity (PII) claims, and limitations on the Commission’s powers under the Inquiries Act. These challenges are discussed in Chapter 16.

This chapter outlines:

• the Commission’s powers and obligations
• how the Commission approached its inquiry
• the adverse findings process
• the Commission’s reporting.

These matters are discussed in turn below.

The Commission’s powers and obligations

The Commission was established under the Inquiries Act. The Act provides for the conduct and establishment of a royal commission in Victoria and sets out the powers it may exercise.

The Inquiries Act enabled the Commission to conduct its inquiry in the manner it considered appropriate, subject to its powers under the Act, its Letters Patent and the requirements of procedural fairness.¹

Powers under the Inquiries Act

Under the Inquiries Act, the Commission had the power to:

• issue a notice to compel a person to produce documents to the Commission (known as a ‘notice to produce’)
• issue a notice to compel a person to attend and give evidence at the Commission’s hearings (known as a ‘notice to attend’)
• apply to the Magistrates’ Court of Victoria for a search warrant to, for example, inspect and copy a document relevant to the inquiry
• conduct hearings in public or in private.²

The Commission did not have any judicial powers. While it was required by its terms of reference to identify the number of, and the extent to which, cases may have been affected by Victoria Police’s use of Ms Gobbo as a human source, it was not the Commission’s role to overturn a conviction, order a re-trial, change a sentence or release a person from custody. These are matters for the courts.

For example, the avenues of recourse that may be available to a person convicted of a serious offence include:

• an appeal against a conviction—an appeal made to an appellate court, often on the basis there has been a substantial miscarriage of justice, usually seeking to overturn a conviction and either direct a verdict of acquittal or order a new trial³
• a petition for mercy—a formal petition to the Victorian Attorney-General to refer a case to the Court of Appeal or to refer a specific point of law to the Supreme Court of Victoria for an advisory opinion.⁴

As noted above, the Inquiries Act placed some constraints on the Commission’s powers, which affected the way it conducted the inquiry. These included a person’s ability under the Act to refuse to provide information to the Commission if that information is subject to PII, and the Commission’s inability under the Act to compel a person to prepare a written statement.⁵ Challenges also arose because various Victorian independent bodies and office holders are exempt from the coercive powers of a royal commission.⁶ Resolving these issues will be important for future inquiries, particularly inquiries that rely on the investigative powers provided by the Inquiries Act.

These challenges and the Commission’s conclusions about how they might be resolved are discussed in Chapter 16.

Obligations under the Letters Patent

The Commission’s Letters Patent required the Commission to:

• take care not to prejudice any ongoing investigations or court proceedings, or exercise any coercive or investigative powers in a manner that would be in contempt of court
• avoid unnecessarily duplicating the investigations or recommendations of previous related inquiries
• work cooperatively with any other inquiries or investigations into Victoria Police’s handling of Ms Gobbo as a human source to avoid any unnecessary duplication
• have regard to related court proceedings and future court proceedings commenced by affected persons, and to the safety of Ms Gobbo and other persons affected by the matters raised in the Commission’s inquiry
• promptly alert the Victorian Director of Public Prosecutions (DPP) and Commonwealth Director of Public Prosecutions (CDPP) to any information or documents relevant to their functions, including their duty of disclosure.

A copy of the Commission’s Letters Patent is at Appendix A and a copy of the amendments to the Letters Patent is at Appendix B.

Procedural fairness

The Commission had the power under the Inquiries Act to conduct its inquiry in any manner it saw fit subject to the requirements of procedural fairness, and a common law obligation to exercise its powers with fairness to those persons whose interests might be affected.⁷

At common law, the obligation to afford procedural fairness extends to any person whose rights, interests or legitimate expectations may be affected in a direct and immediate way.⁸ The scope of the obligation to afford procedural fairness is determined by the particular facts and circumstances of an inquiry, including its terms of reference.⁹

The Commission’s obligation to afford procedural fairness therefore extended to those people whose interests were sufficiently affected by the inquiry. The Commission afforded procedural fairness to those people by providing them with the opportunity to:

• apply to be heard at the Commission’s public hearings and/or cross-examine witnesses on certain matters
• provide written submissions to the Commission
• review and consider the critical issues and evidence relevant to the inquiry and potential findings that affected their interests
• put forward information to the Commission in support of their interests, including the opportunity to rebut or qualify information before the inquiry.

The Inquiries Act also imposes a statutory obligation on a royal commission to afford procedural fairness when a commission proposes to make an adverse finding against a person.¹⁰

Between June and September 2020, the Commission conducted a formal adverse findings and procedural fairness process to ensure that people whose interests were sufficiently affected by the Commission’s potential findings were:

• aware of the matters on which the proposed finding was based, including the critical facts, evidence and other issues taken into account
• given the opportunity to make submissions to the Commission in support of their interests.

The Commission’s adverse findings and procedural fairness process is discussed further below.

Charter of Human Rights and Responsibilities

When conducting the inquiry, the Commission also considered and applied the principles under the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).

The Commission was acutely aware of the rights of people who may have been affected by the inquiry, particularly those whose cases may have been affected by the use of Ms Gobbo as a human source, and Victoria Police officers who were involved in using Ms Gobbo as a human source.

The Commission considered those persons’ Charter rights—including the right to life, right to privacy and right to a fair hearing—during its public submissions process, its hearings, and during the formulation of this final report and its findings and recommendations.¹¹ This consideration of a person’s rights influenced decisions such as whether the Commission would:

• conduct its hearings in public or in private
• make orders to protect the identity of a witness or prevent the publication of sensitive information
• publish information to its website, including submissions from members of the public who asked that their information be treated anonymously or confidentially.

Approach to the inquiry

The Commission’s inquiry was structured around five key areas of work to enable the production and examination of evidence. Those five areas involved:

• seeking and obtaining information from individuals and organisations by issuing notices to produce and requests for information
• engaging with members of the public to give them an opportunity to contribute to the inquiry and follow the Commission’s work
• conducting public hearings to examine evidence and promote transparency of the Commission’s work
• undertaking a comprehensive research program, including consultation with agencies and individuals with expertise in matters relevant to the terms of reference
• receiving advice from Counsel Assisting on matters relating to terms of reference 1 and 2.

These are discussed in turn below.

Obtaining information relevant to the inquiry

The Commission’s work involved piecing together events and interactions that occurred between 1993 and 2020. This required access to a large volume of documents and material relevant to that period. The Commission relied heavily on its power under the Inquiries Act to compel the production of documents. Many agencies and individuals also provided material to the Commission voluntarily.

Notices to produce and requests for information

Under the Inquiries Act, the Commission had the power to issue a notice to an individual or an organisation to compel them to produce a document to the Commission within a specified period of time.¹² That power did not extend to certain bodies and office holders, including the Independent Broad-based Anti-corruption Commission (IBAC), Victorian Ombudsman, DPP, CDPP and Victorian courts.¹³ Those bodies could only provide information voluntarily.

When the Commission was prevented from issuing a notice to produce under the Inquiries Act, or when it required general information rather than the production of a specific document, it could issue formal requests for information.

From 4 January 2019 to 5 October 2020, the Commission issued notices to produce and formal requests for information to various individuals and agencies, including Victoria Police. The number of notices and requests issued and documents received by the Commission is displayed in Figure 3.1.

Figure 3.1: Number of notices to produce and formal requests for information issued by the Commission

In December 2018, Victoria Police established Taskforce Landow, to support its contribution to the Commission’s inquiry and to oversee its responses to the Commission’s notices to produce and other requests. Commission staff and Solicitors Assisting also met with Taskforce Landow and senior Victoria Police officers to enable access to documents and receive briefings on matters relevant to the inquiry.

The Department of Justice and Community Safety also established a business unit to coordinate and oversee the State of Victoria’s response to the Commission.

The Commission is grateful to the many individuals and agencies that provided material voluntarily, despite being exempt from the Commission’s compulsory powers, including IBAC, the Victorian Ombudsman, the DPP, CDPP, Victorian courts, Australian Federal Police (AFP) and Australian Criminal Intelligence Commission (ACIC).¹⁴

Document management and security

The production of documents to the Commission was supported by a document management protocol that specified, among other things, how:

• documents and all attachments should be provided
• documents should be named and categorised
• documents subject to a PII claim or legal professional privilege should be produced.

Challenges relating to the production of documents, including delays and failures to comply with the document management protocol, are discussed in Chapter 16.

Document security protocols

Given the sensitivity of material produced, the Commission created customised, protected level document management, information technology and security systems to securely store all documents received.

The Commission’s security arrangements, including physical, personnel, information and governance security, were developed to support holding and managing classified information up to ‘protected’ level and followed the Australian Government Protective Security Policy Framework. The Commission’s information technology systems included a secure internet gateway service that was assessed under the Information Security Registered Assessors Program and certified to ‘protected’ level by the Australian Signals Directorate.

In accordance with the Inquiries Act, at the conclusion of the inquiry, all documents and material held by the Commission will be transferred to the Victorian Department of Premier and Cabinet and the Public Record Office Victoria. The documents will be held there and dealt with on the same basis, and in the same manner, as they were by the Commission.¹⁵ This is discussed in Chapter 17.

Engaging with members of the public

The Commission examined matters of widespread public importance and interest. Accordingly, it was important to seek and understand the views and experiences of members of the public; in particular, people who were potentially affected by Victoria Police’s use of Ms Gobbo as a human source. It was also important for the Commission to give members of the public an opportunity to participate in and observe the Commission’s work.

Members of the public, and those who may have been affected by the inquiry, were able to attend the Commission’s public hearings and were kept informed about the progress of the Commission’s work on its website. The website was regularly updated with information about the Commission’s processes, including public submissions and public hearings. The Commission published exhibits and hearing transcripts to its website as soon as practicable.

The Commission’s enquiries line, email address and secure PO Box also gave members of the public an opportunity to communicate directly with Commission staff, including its team of investigators, who met regularly with people wishing to provide information to the Commission.

The Commission’s public submissions process and the media also facilitated its engagement with the community, as discussed below.

Public submissions

On 7 February 2019, the Commission invited members of the public and organisations to make written submissions relevant to its terms of reference. The Commission’s call for submissions was advertised on its website, as well as through major metropolitan newspapers such as The Age and the Herald Sun. The Commission also engaged with Corrections Victoria to provide prisoners with information about the Commission’s inquiry and submissions process.

Submissions were due by 12 April 2019, although the Commission continued to accept late submissions on a case-by-case basis; in particular, from persons who believed their case may have been affected by the use of Ms Gobbo as a human source.

In total, 157 submissions were received from members of the public and organisations regarding:

• potentially affected cases and the conduct of Victoria Police officers (terms of reference 1 and 2)
• the current adequacy of Victoria Police’s processes for the use of human sources subject to legal obligations of confidentiality or privilege (term of reference 3)
• the current use and disclosure of human source information in the criminal justice system (term of reference 4)
• allegations relating to the potential use of other human sources with legal obligations of confidentiality or privilege by Victoria Police (term of reference 5)
• other related matters such as legal profession regulation (term of reference 6)
• matters outside the scope of the terms of reference.

Figure 3.2: Submissions received by the Commission

The Commission carefully considered all submissions that fell within its terms of reference.

Submissions received from potentially affected persons and former Victoria Police officers informed the Commission’s review of potentially affected cases. These submissions also helped the Commission identify issues to be examined as part of its public hearings. Other submissions helped the Commission to explore possible reforms to laws, policies and practices relating to the terms of reference. These included submissions on the use and management of human sources, the use of human source information in the criminal justice system, legal ethics and legal profession regulation.

The Commission thanks the many individuals and organisations who took the time to make a submission for their important contribution to the inquiry.

Treatment of submissions

When making a submission, submitters were asked to indicate how they would like the Commission to treat their submission. Submissions could be treated as public, anonymous or confidential.

During the inquiry, public and anonymous submissions were progressively published to the Commission’s website.

While the Commission preferred to make all submissions received available to the public, for various reasons, some submissions were unable to be published to the Commission’s website. These included the author’s preference for the treatment of their submission; the need to protect the safety of the author or other people; and legal reasons such as restrictions on the publication of information that might be subject to legal professional privilege, PII or suppression orders made by the courts.

The 30 submissions that did not fall within the scope of the Commission’s terms of reference were unable to be used as part of the Commission’s inquiry.

A list of submissions received by the Commission that were treated as public submissions is at Appendix C.

Media liaison

There was considerable public interest in the Commission’s inquiry. Liaison with the media was an important tool to communicate the Commission’s work to the community. Reporting of the Commission’s work by the media also encouraged potentially affected persons and their legal representatives to engage with the Commission.

Media releases and statements were regularly published to the Commission’s website to inform the media and the public of key milestones and events in the inquiry, such as the commencement and progress of public hearings.

Media representatives conscientiously abided by the many non-publication orders made by the Commission, as well as the many, sometimes complex court suppression orders.

The Commission thanks the media for the important role they played in the inquiry.

Conducting public hearings

Public hearings were an important mechanism for the Commission to gather evidence and conduct an in-depth examination of matters relevant to the terms of reference.

The events being examined by the Commission were cloaked in secrecy for many years. A crucial function of the inquiry was to assist the Victorian community to understand how Ms Gobbo came to be used as a human source on multiple occasions, the consequences arising from Ms Gobbo’s and Victoria Police’s actions, and what could be done to prevent similar events occurring in the future. Accordingly, the Commission acknowledged at the outset of its inquiry the need to conduct as much of its inquiry in public as possible.¹⁶

The Commission’s hearings were held between 15 February 2019 and 13 May 2020. The number of hearing days, witnesses and parties granted leave to appear is displayed in Figure 3.3 and discussed further below.

Figure 3.3: The Commission’s hearings, 2019–20

The focus and operation of the hearings

The primary focus of the hearings held between February 2019 and February 2020 was to examine the issues relating to cases potentially affected by the use of Ms Gobbo as a human source and the related conduct of Victoria Police officers (terms of reference 1 and 2). These hearings were held at the Fair Work Commission, Melbourne.¹⁷ The Commission is grateful to the Fair Work Commission for making available its hearing room and other facilities.

During those hearings, the Commission examined evidence relating to the interactions between current and former Victoria Police officers and Ms Gobbo between 1993 and 2013. It particularly focused on her third registration and use as a human source between 16 September 2005 and 13 January 2009.¹⁸

The Commission also examined issues relating to Victoria Police’s use or potential use of other human sources subject to legal obligations of confidentiality or privilege (relevant to term of reference 5a). These hearings were held in private to protect the identities of those people.

At times, the Commission’s hearings touched on matters considered by previous inquiries, such as the Comrie Review and Kellam Report.¹⁹ This was necessary in circumstances where, for example, the Commission had received additional information that was not available to these inquiries or where there were challenges to the facts upon which those inquiries were based.²⁰ In considering such matters, the Commission sought to adhere to its obligation under the Letters Patent to not duplicate the work of these inquiries.

In May 2020, the Commission held hearings to examine policy issues relating to terms of reference 3 and 4. These hearings were held virtually due to COVID-19-related restrictions.

The policy hearings focused on a range of issues to inform the Commission’s inquiry into:

• Victoria Police’s current policies and practices relating to the use of human sources with legal obligations of confidentiality or privilege
• how information provided by these human sources is used in the criminal justice system and how Victoria Police fulfils its disclosure obligations.

The hearings did not examine a specific set of events or cases. Instead, they explored how to strengthen the current framework for dealing with these types of human sources and the information they provide to police.

Where necessary, the Commission also held directions hearings to manage a range of procedural matters, such as delays in Victoria Police’s production of documents and witness statements. The Commissioner also issued three directions outlining procedural guidelines and processes to support the public hearings. Those directions related to:

• the general operation of the public hearings, including how witnesses would be called, the examination and cross-examination of witnesses, the tendering of documents and applications for leave to appear
• witnesses’ legal representation
• the operation of the Commission’s virtual hearings in May 2020, following the Victorian Chief Health Officer’s directions in response to the COVID-19 pandemic.²¹

Witnesses

Counsel Assisting determined which witnesses were called at the Commission’s hearings and the issues to be explored in evidence, subject to the Commission’s time limitations and reporting requirements. Witnesses were issued notices to attend the Commission’s hearings on specific days.²²

Written statements

Witnesses who gave evidence at the hearings, and other individuals relevant to the inquiry, were asked by the Commission to prepare a written statement before giving their evidence.

As the Inquiries Act only empowers the Commission to compel the production of existing documents under a notice to produce, written witness statements were produced on a voluntary basis.²³ Once a statement was prepared, the Commission then issued a notice to produce to obtain a copy of it.

Having a written statement available to the Commission prior to a witness appearing to give evidence increased the efficiency of the inquiry, as it assisted in the preparation of questions to put to each witness. While many written statements were provided well in advance of a hearing, this did not always occur.

The Commission received 280 written witness statements.

Written statements and any annexures to statements were tendered as exhibits at the Commission’s hearings and published to the Commission’s website following PII review. This is discussed further below.

Challenges relating to the production of written statements to the Commission, including the timeliness of production, are discussed in Chapter 16.

The Commission thanks all those who voluntarily produced written statements to the Commission, particularly those who did so in a timely way, saving considerable time and public expense.

Witnesses called to give evidence

The Commission heard evidence from 82 witnesses during its hearings.

Counsel Assisting led the examination of all witnesses and were well supported by Solicitors Assisting and the Commission’s team of investigators, who helped to identify witnesses to call and lines of inquiry to pursue.

Whenever possible, a list of upcoming witnesses was regularly published to the Commission’s website to give other people who were potentially affected by a witness’ evidence an opportunity to participate in hearings by applying for leave to appear. The Commission’s ability to publish these lists was sometimes disrupted by the late provision of written statements. These applications for leave to appear are discussed further below.

During its hearings relating to terms of reference 1 and 2, the Commission heard from current and former Victoria Police officers, including:

• officers involved in recruiting and registering Ms Gobbo as a human source
• handlers and controllers in Victoria Police’s Source Development Unit (SDU) who were responsible for managing Ms Gobbo during her time as a human source between 2005 and 2009²⁴
• officers involved in taskforces that had direct engagement with Ms Gobbo, such as the Briars Taskforce and the Petra Taskforce
• senior Victoria Police management and leadership, including then Chief Commissioner Graham Ashton, AM, APM, former Chief Commissioners Kenneth (Ken) Lay, AO, APM, Simon Overland, APM and Christine Nixon, APM, and former Acting Chief Commissioner Timothy (Tim) Cartwright, APM.

The Commission also heard evidence from some of Ms Gobbo’s former clients and other persons who may have been affected by her use as a human source.

In February 2020, the Commission heard evidence from Ms Gobbo, who attended the hearings on video link from a remote location. Ms Gobbo was only visible to the Commissioner.

During the policy hearings relating to terms of reference 3 and 4, the Commission heard from Deputy Commissioner Wendy Steendam, APM, Specialist Operations, who had responsibility for Victoria Police’s response to the Commission. The Commission also called Professor Sir Jonathan (Jon) Murphy, QPM, DL, Liverpool John Moores University, who generously shared his insights and experience of the United Kingdom’s framework for managing human sources.

Witnesses’ evidence assisted the Commission to better understand how the relationship between Ms Gobbo and Victoria Police evolved. The Commission also heard evidence relating to Victoria Police’s decision making regarding their disclosures about, and recruitment, management and use of, Ms Gobbo as a human source.

The evidence of former and current officers also supported the Commission’s exploration of issues relating to Victoria Police’s human source management policies, practices and training. This included officers’ understanding of their disclosure obligations and of the use of confidential or privileged information obtained from human sources.

A list of witnesses who appeared at the Commission’s public hearings is at Appendix E.

The safety of witnesses

In compelling witnesses to give evidence, the Commission was conscious of its responsibility to support the welfare of these people. The Letters Patent also specifically required the Commission to consider the safety of Ms Gobbo and other persons when undertaking the inquiry.

The matters examined by the Commission were at times highly sensitive and could lead to safety risks for people giving evidence or those affected by the information examined by the Commission. For this reason, some of the Commission’s hearings were closed to the public.

The Commission implemented arrangements to ensure that witnesses were protected, and that sensitive material and information was appropriately managed. The Commission’s hearings were generally live-streamed to its website with a 15 to 20 minute delay. This enabled the Commission to pause the live stream if sensitive information was disclosed inadvertently during the hearings.

In addition, where necessary, the Commission:

• provided witnesses with a discreet entrance to and exit from the hearing premises
• allowed witnesses to give evidence from a remote location through telephone or video link
• used pseudonyms to protect the identities of witnesses and other people mentioned in the inquiry
• made non-publication orders preventing the disclosure of information examined in hearings.

Counselling support was available to all witnesses to aid their mental health and wellbeing. The Commission engaged a specialist psychological counselling service to support all witnesses prior to, during and following their attendance at the hearings. Victoria Police and The Police Association of Victoria (TPA) also provided support to their members throughout the inquiry.

Expenses incurred by witnesses, including travel, meals and accommodation, if claimed, were reimbursed in accordance with the Inquiries Act and Inquiries Regulations 2015 (Vic).²⁵

Leave to appear at the Commission’s hearings

People wanting to take part in the Commission’s hearings had to apply to the Commission for permission to participate, known as ‘leave to appear’. Leave to appear enabled a person, or their legal representatives, to formally appear in part or all of the hearings, make submissions and, generally, to obtain a copy of the transcript and relevant material.²⁶ People could also make applications for leave to cross-examine a particular witness.

The Commission received 182 applications for leave to appear relating to 72 individuals or organisations, over the course of its hearings, and 11 applications for leave to cross-examine. Of these the Commission granted leave to appear to 63 parties.

The Commission granted ‘standing leave’ for hearings relating to terms of reference 1 and 2 to Victoria Police, Ms Gobbo, the State of Victoria, DPP, CDPP, AFP, ACIC, then Chief Commissioner, Mr Ashton, and former officers of the SDU who had been Ms Gobbo’s handlers during her time as a human source. This allowed these parties’ legal representatives to attend and appear at all of the Commission’s hearings in relation to these terms of reference, make submissions and apply to cross-examine witnesses.

Other individuals and organisations were granted limited leave to appear for certain parts of the Commission’s hearings, and leave to cross-examine certain witnesses where they held a direct or special interest in the matters that were being examined.

A list of parties granted leave to appear at the Commission’s hearings is at Appendix F.

Legal assistance

Current and former police officers who gave evidence at the Commission’s hearings were either represented by the lawyers acting for Victoria Police or had their own separate legal representation.

Other people affected by the Commission’s inquiry sought legal assistance. In October 2019, the State entered into a Memorandum of Understanding with Victoria Legal Aid to provide legal assistance to people who had been:

• issued with a notice to attend the Commission’s hearings
• issued with a request for information by the Commission requiring them to prepare a written witness statement
• granted leave to appear at the Commission’s hearings.²⁷

The Commission referred a small number of people to Victoria Legal Aid to obtain legal representation.

Non-publication orders and exclusion orders

The Commission endeavoured to conduct its inquiry as openly as possible. At times, however, it was necessary for legal, privacy or safety reasons to restrict access to some evidence given at its hearings.

Under the Inquiries Act, the Commissioner had the power to:

• prohibit or restrict the publication of any information that may identify a person who is a witness, or any information or evidence given to the Commission (known as ‘non-publication orders’)²⁸
• exclude any person from a hearing for reasons including the safety of any person, sensitivity of the proceedings and the possibility of prejudicing any other legal proceeding (known as ‘exclusion orders’).²⁹

In total, the Commission made 293 non-publication orders requiring people to be referred to by pseudonyms or restricting the publication of information.

The Commission also made 78 exclusion orders limiting the public, and on limited occasions the media, access to parts of the proceedings. It did so only where this was clearly required for security and/or safety reasons.

The Commission developed an accreditation system to permit members of the media, as appropriate representatives of the public interest, to attend many proceedings that were closed to the public. This allowed the media to report on matters arising from those closed hearings, subject to court suppression orders or Commission non-publication orders. In hearings where the content was highly sensitive, media representatives’ lawyers were permitted to stay in the hearing room.

Prior to the publication of this final report, the Commission reviewed its non-publication orders to consider whether they remained necessary and revoked those that were no longer needed.

Future access to documents that are subject to a non-publication order—in particular, documents and materials relevant to persons affected by Victoria Police’s use of Ms Gobbo as a human source—is discussed in Chapter 17.

Exhibits, transcripts and claims of public interest immunity

Transcripts of the Commission’s hearings and exhibits tendered during each day’s proceedings were made available on the Commission’s website as soon as practicable.

Many of the documents tendered as exhibits at the Commission’s hearings could not be published due to court suppression orders, PII claims or other legal restrictions on their distribution and publication.

A PII claim is a claim by the State to withhold information from legal proceedings or inquiries, if production of that information would be contrary to the public interest.³⁰ These claims are generally made by police. A PII claim on information relating to the identity of human sources is generally based on the need to protect the safety of human sources. Information that might reveal covert police methodology also generally attracts a PII claim, because of the need to mention the confidentiality of techniques that police use to detect and solve crimes.

On 5 June 2019, a protocol was agreed between the Commission, the State of Victoria and Victoria Police regarding the management and publication of documents relevant to a PII claim in the belief that this would speed up the process and avoid the costs and delays of contesting the claims in court.³¹

This protocol sought to enable Victoria Police to review exhibits (including witness statements) and transcripts and to redact content that was subject to a PII claim prior to the documents being posted to the Commission’s website. For several reasons, the protocol could not be implemented fully. This is discussed further in Chapter 16.

The Commission also provided the AFP with exhibits and transcripts, and an opportunity to make PII claims. Where necessary, the ACIC and IBAC were also provided with documents for their review.

Prior to publication on the website, the Commission considered the requested redactions to exhibits and transcripts and resolved any PII claims. It also reviewed the exhibits and transcripts against any court suppression orders and against the Commission’s own non-publication orders. The PII claims were then applied on an interim basis before publication to the website.

In total, 1,957 exhibits were tendered by the Commission. Of those, 125 exhibits were treated as confidential exhibits for safety and/or security reasons and were not able to be published.

The process the Commission adopted for the review and publication of exhibits is displayed in Figure 3.4. Transcripts were also reviewed in a similar way.

Figure 3.4: Process for review and publication of exhibits tendered at the Commission’s hearings

This extensive review process at times caused delays in the publication of exhibits and transcripts to the Commission’s website. This is discussed further in Chapter 16.

Research

The Commission’s inquiry into terms of reference 3–6 was informed by an in-depth research program that included:

• undertaking literature reviews and desktop research
• assessing policies and procedures provided by a range of law enforcement and other agencies
• consulting with organisations and experts with relevant knowledge and experience
• conducting focus groups with serving Victoria Police officers who hold human source management responsibilities
• auditing Victoria Police human source files relating to human sources with potential legal obligations of confidentiality or privilege
• preparing a consultation paper on disclosure practices relating to the use of human source information in the criminal justice system.

Some of these activities are discussed in more detail below.

Engagement with stakeholder organisations and experts

The Commission conducted extensive stakeholder consultation to inform its inquiries into terms of reference 3–6.

Between March 2019 and June 2020, the Commission consulted with 97 Victorian, interstate and international stakeholders and experts, including:

• law enforcement, intelligence and justice agencies
• prosecuting authorities
• bar associations, law societies and legal profession bodies and regulators
• police oversight, integrity and anti-corruption agencies
• academics and research institutes.

The number of stakeholders consulted by the Commission is displayed in Figure 3.5.

Figure 3.5: Australian and international stakeholders consulted by the Commission

The expertise of individuals and organisations consulted by the Commission gave it a detailed understanding of relevant legislation, policies, processes and frameworks in other jurisdictions. The consultations helped the Commission understand the practical operation of:

• current policies and frameworks related to human source management
• police disclosure obligations
• legal profession regulation
• other matters related to the terms of reference.

The experiences and insights of these stakeholders also enabled the Commission to develop evidence-based and practical recommendations for reform in these areas. The Commission thanks them for sharing their expertise.

A list of individuals and organisations consulted by the Commission is at Appendix G.

Focus groups with current Victoria Police officers

To obtain a comprehensive understanding of the adequacy and effectiveness of Victoria Police’s current human source management processes, the Commission considered it necessary to obtain the views and experiences of the Victoria Police officers who currently apply those processes.

Between December 2019 and February 2020, the Commission hosted six focus groups with 39 serving Victoria Police officers involved in human source management.

The objectives of the focus groups were to:

• gather information about how Victoria Police officers understand and apply human source policies and practices
• give officers an opportunity to reflect on the challenges and complexities arising from their use and management of human sources, and to contribute to the Commission’s inquiry and any potential improvements in policies, training, support and guidance material
• gain an understanding of Victoria Police’s broader operating environment and the likely practical consequences of any changes to its human source management framework.

In conducting the focus groups, the Commission was conscious of the sensitivity of information being discussed and of the need to protect the identities of human sources, the identities of officers who handle human sources and the integrity of confidential police methods.

The Commission also wanted to ensure that officers felt they were able to participate openly and honestly in the focus groups, without any concerns that their comments would be attributed to them in this final report or otherwise obtained by Victoria Police Executive Command. To manage these risks and concerns, all information collected from participants was de-identified.

The focus groups gave the Commission important insights into the practical operation of Victoria Police’s human source management framework and the processes that apply specifically to human sources who may be subject to legal obligations of confidentiality or privilege. The focus groups also enabled the Commission to test the operational feasibility of policy, procedural and structural reforms that might strengthen Victoria Police’s human source management practices.

The Commission is grateful to the Victoria Police officers who volunteered their time to participate in and support this project, and to Victoria Police Executive Command and Taskforce Landow for encouraging the initiative.

The outcomes of the focus groups are discussed further in Chapters 10, 11 and 12.

Audit and review of human source files

In late 2019, the Commission commenced an audit of 31 Victoria Police files relating to human sources with potential legal obligations of confidentiality or privilege, to assist the Commission’s work on terms of reference 3 and 5a.

The purpose of the Commission’s audit was to:

• inform the Commission’s assessment of the adequacy and effectiveness of Victoria Police’s current human source management policies and practices, and its compliance with the Kellam Report recommendations
• identify any issues arising from Victoria Police’s use of other human sources with legal obligations of confidentiality or privilege.

The 31 human source files related to three professional categories: government, journalist and medical. Lawyers and occupations associated with the legal profession were excluded from the audit, as the relevant files had been separately disclosed to the Commission, as discussed below.

The scope and outcomes of the audit are discussed further in Chapters 10, 11 and 12.

Review of human source files associated with the legal profession

During the inquiry, Victoria Police identified 12 human source files relating to people associated with the legal profession, other than Ms Gobbo.

Hard-copy redacted records were provided to the Commission for review. In some cases, issues relating to these human sources or prospective human sources were examined in private hearings.

The Commission’s review of the 12 human source files and its observations are discussed further in Chapter 10.

Consultation paper on disclosure practices

In November 2019, the Commission released a consultation paper seeking views from key stakeholders on:

• the current use of human source information in the criminal justice system from human sources who are subject to legal obligations of confidentiality or privilege
• Victoria Police’s practices for disclosing the use of such human sources to prosecuting authorities.

The consultation paper related to the Commission’s work on term of reference 4.³²

The paper asked stakeholders to comment on the adequacy of current processes in Victoria and whether there is a need for reform, including in relation to:

• the framework, policies and practices governing disclosure of relevant material by Victoria Police to the prosecution and the accused person
• the framework, policies and practices for resolving PII claims
• whether Victoria Police should be required to disclose human source material to the prosecution
• how well Victoria Police understands issues relating to legal professional privilege, PII and disclosure.

The consultation paper was circulated to a range of key Victorian agencies that the Commission considered would have an interest in, and understanding and experience of, these issues. The Commission received submissions in response from Victoria Police, the DPP, CDPP, Victoria Legal Aid, the Law Institute of Victoria and the Criminal Bar Association.

These responses are discussed further in Chapter 14.

Counsel Assisting the Commission

The role of Counsel Assisting the Commission was to:

• identify and advance lines of inquiry
• identify and determine the order of witnesses and lead the examination of witnesses at the public hearings
• provide advice on discrete areas of law and procedure
• provide submissions, including reply submissions, in relation to terms of reference 1 and 2 (discussed below).

Counsel Assisting did not have a role in drafting this final report or in the formulation of the Commissioner’s findings or recommendations.

Following the conclusion of the Commission’s hearings, Counsel Assisting continued their inquiries and then prepared written submissions to the Commission on the legal principles underpinning their analysis, a narrative account of the relevant events that had occurred, the cases that may have been affected, and the findings they considered were open to the Commissioner to make in relation to terms of reference 1 and 2.

The submissions of Counsel Assisting were independent of the Commission and did not represent the concluded views of the Commissioner. In preparing this final report, the Commissioner considered the submissions of Counsel Assisting, the responsive submissions of those affected by the inquiry, and other evidence before the Commission.³³

Counsel Assisting submissions and responsive submissions are discussed below.

Adverse findings process

As discussed above, the Inquiries Act enabled the Commission to conduct its inquiry in the manner it considered appropriate, subject to the Commission’s powers under the Act, its Letters Patent and the requirements of procedural fairness.³⁴ The Act also prescribes how procedural fairness is to be afforded when a royal commission proposes to make an adverse finding.

The Inquiries Act requires that when a royal commission proposes to make a finding that is adverse to a person, it has to be satisfied that the person:

• was aware of the matters on which the proposed finding was based
• had an opportunity, at any time during the inquiry, to respond to those matters.³⁵

The Inquiries Act requires a royal commission to consider a person’s response, if any; and, if an adverse finding is then made, to fairly set out their response in its report.³⁶

In June 2020, the Commission commenced a formal adverse findings process, as detailed below.

Adverse findings: terms of reference 1 and 2

The Commission’s findings and recommendations in this final report relating to terms of reference 1 and 2—that is, cases potentially affected by the use of Ms Gobbo as a human source and the conduct of Victoria Police officers in using Ms Gobbo as a human source—were informed by:

• information produced under a notice or provided voluntarily to the Commission
• public submissions
• evidence examined at the Commission’s hearings
• submissions received from Counsel Assisting
• submissions received from affected persons and organisations in response to Counsel Assisting submissions.

Counsel Assisting submissions

On 26 June 2020, Counsel Assisting produced written submissions to the Commission to consider in relation to terms of reference 1 and 2.³⁷ Those submissions set out:

• the guiding legal principles and methods that informed their inquiries and analysis
• a narrative account of the conduct of current and former Victoria Police officers and Ms Gobbo
• the findings they considered were open to the Commissioner to make
• the cases they considered may have been affected by the use of Ms Gobbo as a human source based on the evidence available to the Commission.

In their submissions, Counsel Assisting detailed their examination of 124 cases that may have been affected by the use of Ms Gobbo as a human source.³⁸

In September 2020, Counsel Assisting produced reply submissions to address some key issues raised in responsive submissions, discussed below.³⁹

Responsive submissions

The Commission provided certain people and organisations with copies of, or extracts from, Counsel Assisting submissions and invited them to make a submission to the Commission in response (known as a ‘responsive submission’).

Copies of Counsel Assisting submissions could not be distributed until the Commission’s application to vary court suppression orders was resolved. The suppression order proceedings are discussed below.

In late June 2020, Counsel Assisting submissions were circulated to Victoria Police, a number of former and current police officers, Ms Gobbo, the State of Victoria, DPP, CDPP, Office of the Chief Examiner, AFP and ACIC, so that they could prepare responsive submissions and make any PII or other non-publication claims.

From July 2020, Counsel Assisting submissions, with any PII and other non-publication claims redacted, were circulated to other people who may have been adversely or otherwise sufficiently affected by Counsel Assisting’s proposed findings, to prepare responsive submissions. Copies of the submissions were provided to:

• people whose cases were the subject of specific examination in Counsel Assisting submissions
• other people who may have been adversely affected by Counsel Assisting’s proposed findings.⁴⁰

All those who received a copy of Counsel Assisting submissions were provided with a reasonable opportunity to make a responsive submission. Where possible, and subject to its reporting timeframes, the Commission gave people additional time to respond, and accepted late submissions.

After publication of Counsel Assisting submissions and responsive submissions to the website, members of the public who considered that they may be adversely affected by proposed findings contended by Counsel Assisting or by responsive submissions were provided with seven days to make a submission to the Commission. Additionally, people and organisations who had already made a responsive submission were provided with the opportunity to make further submissions in response to submissions made by other parties.

Further detail on how the Commission met its procedural fairness obligations relating to terms of reference 1 and 2 is provided in Chapter 5.

The Commission received 45 responsive submissions from organisations and other affected persons.

The Commission carefully considered all responsive submissions and has fairly set out any relevant responses where it has made an adverse finding or comment in this final report.⁴¹

A list of responsive submissions received by the Commission is at Appendix D.

Publication of submissions

Redacted copies of Counsel Assisting submissions and responsive submissions were published to the Commission’s website in September 2020.

Prior to publication, those submissions were also reviewed by Victoria Police, the AFP and ACIC so that any PII claims and other non-publication claims could be made by those agencies.

Several people who received a copy of Counsel Assisting submissions—in particular, those whose cases may have been affected by the use of Ms Gobbo as human source—also approached the Commission to apply to:

• have their case study redacted from Counsel Assisting submissions prior to publication of those submissions to the Commission’s website
• be assigned a pseudonym to protect their identity.⁴²

The Commission redacted extracts from a number of case studies from Counsel Assisting submissions on PII, legal, reputational and/or safety grounds, and made non-publication orders to assign pseudonyms to people named in those submissions.

A decision not to assign a pseudonym to a current Victoria Police officer was challenged in court. This is discussed further below.

Following a decision of the Commissioner, content was also redacted from Counsel Assisting submissions relating to their contention that it was open to the Commissioner to find that various named current and former Victoria Police officers and Ms Gobbo may have committed criminal offences.

On 28 August 2020, at the request of Victoria Police, certain current and former Victoria Police officers and Ms Gobbo, the Commissioner published her reasons for that decision and her reasons supporting the Commission’s jurisdiction to make findings of statutory misconduct.⁴³

The Commission, under its Letters Patent, was required to conduct its inquiry in a manner that would not prejudice any ongoing investigations or court proceedings. The Commission has no judicial power. Whether criminal charges should be brought against an individual is a matter for the DPP, not the Commission. If charges are brought, those persons charged are presumed to be innocent and the charges must be determined in a court on the criminal standard of proof, which requires proof beyond reasonable doubt. This is discussed in Chapter 5.

Adverse findings: terms of reference 3–6

Terms of reference 3–6 did not require the Commission to consider the conduct of Victoria Police or Ms Gobbo. These terms of reference related to:

• Victoria Police’s current processes for using and managing human sources with legal obligations of confidentiality or privilege
• Victoria Police’s current processes for using and disclosing in criminal proceedings information provided by such human sources
• recommended measures to address Victoria Police’s use of any other human sources with legal obligations of confidentiality or privilege who came to the Commission’s attention; or any systemic or other failures in Victoria Police’s processes for its disclosures about, and recruitment, handling and management of, human sources with legal obligations of confidentiality or privilege
• any other matters necessary to satisfactorily resolve the matters set out in terms of reference 1–5.

In September 2020, the Commission provided Victoria Police, the DPP, Office of Public Prosecutions (OPP) and TPA with relevant extracts from the Commission’s draft final report relating to terms of reference 3–6 and invited them to make responsive submissions. The Commission carefully considered the responsive submissions received before making any adverse comments and, where relevant and necessary, fairly set out these responses in this final report.

A list of responsive submissions received by the Commission is at Appendix D.

The Commission’s reporting

On 1 July 2019, the Commission delivered a progress report to the Governor of Victoria. That report outlined the key events that led to the establishment of the Commission and its work as at 19 June 2019, including its interpretation of and approach to the terms of reference. The progress report did not include any findings or recommendations—these are included in this final report.

In this final report, the Commission reached conclusions regarding the number of potentially affected cases, the conduct of Victoria Police and its officers, and the conduct of Ms Gobbo.

The Commissioner did not have the power to make any findings of fact or law binding outside this Commission. In effect, the Commission’s findings and recommendations in this final report are advisory in nature and hold no legal force or effect. The Commission nevertheless notes the statement of the Premier of Victoria, The Hon Daniel Andrews, MP, to Parliament at the commencement of this inquiry that his Government intends to implement all of the Commission’s recommendations.⁴⁴

A list of the Commission’s recommendations can be found in the Final Report Summary.

Preparation of a public report

For the Commission to produce a public report, it had to:

• overcome restrictions imposed by existing court suppression orders
• navigate issues regarding the highly sensitive subject matter of the inquiry and issues regarding the safety of persons named in this final report.

It was also important that the Commission’s reporting did not delay the disclosure of information to those people whose cases were potentially affected by the use of Ms Gobbo as a human source.

The steps taken by the Commission to navigate those issues are discussed below.

Suppression order proceedings

During the course of its work, the Commission identified a significant number of court suppression orders that presented challenges for its inquiries.

In 2019, the Commission made three applications to the courts to vary suppression orders so that it could access protected information and facilitate witnesses to provide evidence at the Commission’s hearings.⁴⁵

On 1 May 2020, the Commission made an application to vary a further 52 suppression orders made in the Magistrates’ Court, County Court and Supreme Court of Victoria. The Commission requested that the orders be varied to provide that nothing in them would prevent people from disclosing information to the Commission, or prevent the Commission itself from disclosing information, that would otherwise be prohibited by the orders.⁴⁶

That application was filed in the Court of Appeal to overcome challenges the Commission faced in its reporting, in particular:

• the likelihood that Counsel Assisting submissions and responsive submissions would contain information that was the subject of suppression orders and that its disclosure could place the Commission and responding parties in breach of those orders
• the likelihood that the submissions and this final report would contain information that was the subject of suppression orders and the publication of those documents to the Commission’s website would contravene one or more of those orders.⁴⁷

There were 63 respondents to the Commission’s application, 55 of whom were individuals either the subject of one or more of the suppression orders, or a party to the proceedings in which the suppression orders were made. Other parties to the proceedings included Victoria Police, the DPP, CDPP, AFP and State of Victoria. Five of the 63 respondents opposed the Commission’s application.⁴⁸

On 23 June 2020, the Court of Appeal granted the Commissioner’s application to vary the suppression orders. The variation enabled the Commissioner to be able to determine for herself whether any orders in accordance with the Inquiries Act and Witness Protection Act 1991 (Vic) were necessary, taking into account matters including any potential resulting risks, whether to the personal safety of affected individuals or to the administration of justice.⁴⁹

Following the Court of Appeal’s decision, the Commissioner made several non-publication orders to protect the safety and reputation of people referred to in Counsel Assisting submissions, responsive submissions and in this final report.

The use of pseudonyms

At times, the sensitive nature of the information examined during the inquiry required the Commissioner to make orders to restrict the publication of information and protect the identity of people mentioned in Counsel Assisting submissions, responsive submissions and in this final report.

The Inquiries Act enables the Commissioner to make orders to protect the identity of a person in circumstances including where a person may be caused prejudice or hardship, including harm to their safety or reputation; there is a possibility of prejudice to other legal proceedings; or the Commissioner otherwise considers it appropriate.⁵⁰

In this final report, the Commission has used pseudonyms to deidentify some former and current Victoria Police officers, people whose cases may have been affected by the use of Ms Gobbo as a human source, and other people relevant to the inquiry. All requests for pseudonyms were carefully considered by the Commissioner, but not all requests were granted.

In July 2020, a current serving Victoria Police officer applied to the Commission for a non-publication order to apply a pseudonym over their name in Counsel Assisting submissions, any responsive submissions filed by another party, and this final report.⁵¹ That request was refused by the Commissioner as she was not satisfied, based on the material before her, that there was a significant risk to the officer’s safety.⁵²

The Chief Commissioner of Victoria Police commenced proceedings to review that decision. That application was dismissed by the Court of Appeal. The Court observed that if the order sought by the officer was made, other officers may similarly take advantage to anonymise their identity in the Commission’s reports.⁵³

The unanimous decision of the Court of Appeal found:

The anonymisation of the names of alleged wrongdoers would render the recommendations of the Royal Commission far less potent, and would have a severe impact on the rights of those who may have been the victims of Ms Gobbo’s conduct, and the complicity of any police in what might be established as having been a conspiracy to pervert the course of justice. Those people who might be shown to be victims of such conduct would be denied procedural fairness. Moreover, the community as a whole would be disadvantaged through a lack of transparency in relation to what might prove to be one of the greatest scandals of our time in relation to the workings of the criminal justice system.⁵⁴

During the Commission’s public hearings and during the preparation of this final report, the Commission made non-publication orders to protect the identity of people. Some people were assigned multiple pseudonyms throughout the inquiry, to ensure that they could not be identified.

Cases affected by the use of Ms Gobbo as a human source

The Commission was required to identify cases that may have been affected by the use of Ms Gobbo as a human source.

Alongside the Commission’s work, Victoria Police, the AFP, DPP and CDPP also sought to identify affected cases to meet their disclosure obligations. Throughout the inquiry, the Commission kept those bodies informed of the cases it had identified and intended to review.

The DPP and CDPP provided key documents to the Commission relevant to each individual whom the Commission identified as potentially affected, including indictments, summary prosecutions, sentencing reasons, court orders and appeal proceedings. The Commission only sought documents for those cases it considered warranted an in-depth review.⁵⁵

Further information was also sought from Victoria Police, including copies of criminal records relating to potentially affected persons.

During the inquiry, concerns arose regarding the timeliness of Victoria Police’s disclosures to affected persons and to the DPP and CDPP. In January 2020, the Commission requested that Victoria Police provide it with weekly reports. Those reports provided the Commission with insight into Victoria Police’s processes and methods for disclosing to affected individuals.

In Chapter 17, the Commission makes recommendations regarding the need for disclosure to be made to those persons identified by the Commission as individuals whose cases may have been affected. In Chapter 9, the Commission recommends that Victoria Police regularly reports on its disclosure to affected persons.

Endnotes

Introduction

Central to the Commission’s inquiry was determining: (a) whether it was appropriate for Victoria Police to seek, acquire and use information from a human source who was legally obliged to keep that information confidential; and (b) the appropriateness of a lawyer, Ms Nicola Gobbo, divulging to Victoria Police information that her clients had entrusted to her. The Commission’s analysis and conclusions about these matters are contained in Volume II of this final report.

In addition to identifying and reporting on the consequences of these events, the Commission was required to examine Victoria Police’s current processes for using and managing human sources with legal obligations of confidentiality or privilege, and for using information acquired from such sources.

Before examining the adequacy and effectiveness of these processes, the Commission had to define and examine the term ‘legal obligations of confidentiality or privilege’, and consider the implications of using human sources who may be subject to these obligations.

Legal obligations of confidentiality or privilege are duties imposed on people entrusted with confidential or privileged information to keep it confidential and not disclose or disseminate (distribute) it. These duties exist primarily to protect communications in certain professional relationships (such as lawyer–client and doctor–patient relationships), but also to protect sensitive or secret information entrusted to individuals in their work (for example, government officials and employees).

Obligations of confidentiality or privilege arise from diverse legal sources, including legislation, contract, common law and equitable principles, and codes of conduct. The law not only imposes obligations of confidentiality and privilege; it also defines and regulates exceptions to these obligations. That is, it prescribes how and when confidential or privileged information may be lawfully disclosed. As explained in this chapter, such disclosure may happen if there is a competing interest that justifies it.

It is important to understand the difference between confidential and privileged information, and the corresponding obligations not to disclose or disseminate this information. Privileged information is confidential information that attracts a higher level of protection. So, while a court can order disclosure of confidential information in legal proceedings, it cannot order disclosure of privileged information unless an exception applies. Privilege only applies to certain information shared in some circumstances with lawyers, doctors, counsellors, journalists and religious clerics.

It is also important to focus not just on who—because of their profession or occupation—is subject to legal obligations, but on the nature of the information being provided. That is, when considering the implications of using a human source, it is important to determine whether the specific information that they provide is confidential or privileged, rather than simply looking at the source’s occupation.

Confidentiality and privilege limit the scope of information available to law enforcement agencies and prosecuting authorities when building and presenting a case against a person. While it might be advantageous for police to have ready access to information that supports their investigations of criminal activity, other important and competing interests need to be considered. Permitting police to ‘override’ confidentiality protections enshrined in law raises several concerns. It risks:

• interfering with a person’s right to and expectations of privacy
• undermining the public interest in professional relationships built on trust
• damaging the reputation and integrity of the profession and professionals involved.

Critically, it may also jeopardise investigations and prosecutions, if the access to and/or use of the information is later found to be illegal or improper.

Some stakeholders consulted by the Commission, particularly law enforcement agencies, considered that there are circumstances where it may be appropriate for police to use a human source with legal obligations of confidentiality or privilege; for example, to provide information unconnected to their legal obligations. Stakeholders even considered there might be very limited circumstances where police might appropriately recruit a human source with the specific intention of obtaining confidential or privileged information; for example, to prevent serious harm to a person or the community.

Other stakeholders were wholly opposed to police use of human sources with legal obligations of confidentiality or privilege, arguing that the risks are too significant and not realistically able to be managed. In particular, some legal profession associations and regulatory bodies submitted that lawyers’ duties and obligations are inherently incompatible with using them as human sources.

Having considered the evidence, the Commission’s view is that it is rarely appropriate for police to seek confidential or privileged information from a human source. The only circumstances where it might be appropriate for police to use a human source for this purpose would be when there are exceptional and compelling reasons for doing so, such as a need to respond to a significant threat to community safety. Any proposed use of a human source to obtain confidential or privileged information in these circumstances would still need to be subject to significant safeguards, including independent oversight by an agency external to Victoria Police.

The Commission acknowledges that there are some circumstances in which the use of human sources subject to legal obligations of confidentiality or privilege might pose fewer risks—if, for example, the information being provided is unrelated to the person’s occupation and professional duties, or an exception to the duty of privilege or confidentiality applies. Such scenarios involve complex legal questions, however; and resolving them will often depend on a detailed assessment of the particular case. Consequently, the Commission considers that when deciding whether to use any human source who is reasonably expected to provide confidential or privileged information, this decision must involve rigorous risk assessment and legal advice. The use of such a source should also be referred to senior police decision makers for authorisation.

Current context and law

Terms of reference 3–6 required the Commission to focus on Victoria Police’s use of human sources subject to legal obligations of confidentiality or privilege.

Before examining the adequacy and effectiveness of current processes relating to the use and management of such human sources, the Commission had to:

• define and examine legal obligations of confidentiality and the circumstances in which they arise
• define and examine legal obligations of privilege and the circumstances in which they arise
• identify the risks associated with police accessing and using confidential or privileged information
• consider how police currently manage any risks associated with the use of such human source information.

These matters are discussed in turn below.

Legal obligations of confidentiality

Obligations of confidentiality are duties imposed on people entrusted with confidential information not to disclose or disseminate that information.

Broadly, legal obligations of confidentiality arise when a person entrusts confidential information to another person:

• for limited use
• in circumstances in which the law imposes an obligation on the person who receives the information to keep it confidential.¹

At its core, confidentiality is about control over information, which empowers the person disclosing the information to ‘influence what others know and … how they behave’.² For this reason, the law also recognises that obligations of confidentiality can extend to people who have received confidential information—even when they receive it from someone other than the person who originally disclosed it.³

While those subject to legal obligations of confidentiality must not disclose that information to any other party, a court is able to ‘override’ the confidentiality and order them to reveal or disclose the information in the context of legal proceedings.⁴

A failure to comply with confidentiality obligations may expose a person providing professional services (referred to in this chapter as the ‘professional’) to legal or disciplinary action. The person to whom the professional owes the obligation (referred to in this chapter as the ‘client’) may take legal action against a professional who breaches their confidentiality.⁵ They could seek an award of damages to compensate them for the effects of the unlawful disclosure, or, in the case of a threatened disclosure, an injunction to prevent the breach. The client may also report the professional to the appropriate regulatory body. Disciplinary proceedings may follow, and these may result in the professional’s licence to practise being restricted or revoked.

People subject to obligations of confidentiality

People may have legal obligations of confidentiality in a broad range of circumstances, including:

• in the context of service-based professional relationships (such as between lawyers and their clients, and doctors and their patients)
• where a person is entrusted with knowledge of or access to information designated as sensitive or secret (such as government officials and those with responsibility for handling individuals’ private information)
• under commercial and employment contracts
• a combination of the above.

The Commission has focused primarily on legal obligations of confidentiality arising from professional relationships, and, by extension, confidential information derived from those relationships. This is because the law affords particular status to information divulged in these contexts, which is in turn a reflection of broader social interests.⁶ As discussed further below, legal protection of confidential information supports the operation of important public and social institutions, such as the administration of justice and medical and health services.

Communications that arise in some professional relationships are legally confidential.⁷ There is no legally recognised definition of ‘professional’ or ‘profession’ that determines whether the law protects the confidentiality of the relationship between the professional and their client.⁸ Professional status tends to be given to certain occupations based on factors such as training and skill, power imbalances and the likelihood of confidential communications being made.⁹

The lawyer–client and the health practitioner–patient relationships (the latter most commonly illustrated by the doctor–patient relationship) are the most familiar examples. Other examples of professional relationships where obligations of confidentiality may arise include journalist–source, clergy–penitent, accountant–client and banker–customer.¹⁰

In addition to confidentiality obligations arising out of professional relationships, people in certain roles may also be subject to legal obligations to keep the information they acquire in the course of their occupation secret. Cabinet ministers, Members of Parliament and government employees are all required to keep certain categories of information that they obtain in the course of their public duties confidential.¹¹ Legislated protection of sensitive and secret information is similarly important for a range of other public policy objectives, including to facilitate the work of government and its agencies.

The basis for obligations of confidentiality in professional relationships

In professional relationships, legal obligations of confidentiality exist for several reasons. When the relationship involves the giving of professional advice, confidentiality obligations encourage frank and open communication, and foster trust and loyalty.¹² The underlying assumption is that the professional will be best able to assist the client if the client discloses information fully and freely.¹³ In other circumstances, such as in the financial sector, confidentiality obligations are considered to promote public confidence in the banking system and capital markets.¹⁴

Obliging a professional to maintain confidentiality is not only in the individual client’s interest, but also in the public interest.¹⁵ For example, a client’s trust in their lawyer is in the interests of the administration of justice, and a patient’s trust in their doctor is in the interests of maintaining public health.¹⁶ The obligations enhance public confidence in the standards and integrity of the legal, health and other systems, and help to ensure that citizens feel confident to use these services.¹⁷

Legal obligations to maintain confidentiality

Generally, legal obligations to maintain confidentiality come from three main sources: contract, equity and legislation.¹⁸ Obligations may also arise through professional codes of ethics prescribed by governing bodies.

Contract

A contract can create an obligation to maintain confidentiality. The terms of a contract can be express or implied, so an obligation of confidentiality may exist either expressly or by implication.¹⁹ An example of an express contractual obligation is a professional service provider, such as a lawyer or an accountant, signing a contract specifying that the service provider will keep the client’s affairs confidential and will not disclose them unless this is justified. In those circumstances, such an express contractual term is designed to reflect a mutually agreed position as to what can and cannot be done with the information.²⁰

Even if a contract does not include an express term requiring a service provider to keep the client’s information confidential, the law may still recognise an obligation of confidentiality implied in the agreement.²¹ A contractual obligation of confidentiality is often implied as a matter of law in a professional–client relationship (for example, between lawyers and clients, and doctors and patients), and sometimes also embedded in professional rules.²²

Equity

Equity is a branch of law that gives courts flexibility to rectify injustices even if a remedy is not available under other areas of law, such as contract or tort. While a contract may not exist in every confidential professional relationship or circumstance in which confidential information is shared, the equitable doctrine of confidentiality (or confidence) may be relied on to protect the disclosure of sensitive information intended to be kept confidential. If information is communicated in circumstances of confidence²³—even if there is no contractual or legislated obligation of confidentiality—equity empowers the court to make orders to restrain the release of confidential information or to give a remedy for a breach of confidentiality.²⁴

For example, there is usually a contract between a patient and their doctor when the patient attends a doctor’s surgery or clinic.²⁵ In some circumstances, such as in a public hospital, there may not be a contract between the doctor and patient, but with or without a contract, a doctor would have an equitable duty of confidentiality to protect the patient’s health information.²⁶

Legislation

Legislation may establish legal obligations of confidentiality and impose penalties for unlawfully obtaining or disclosing certain categories of information. For example, the Health Records Act 2001 (Vic) and Privacy and Data Protection Act 2014 (Vic) regulate the handling by public and private sector organisations of a person’s health and personal information.

In Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) protects a person’s rights not to have unlawful or arbitrary interference with their privacy, family, home or correspondence.²⁷ The Charter requires public officials and authorities to act in a way that is compatible with these rights.²⁸ This imposes obligations on government employees to comply with confidentiality requirements.

Codes of ethics

In professions where there is a special commitment to ethical conduct, codes of ethics or professional rules may mandate an obligation of confidentiality to a client. Breach of professional ethics may result in disciplinary proceedings. Professional ethics may also assist the courts in determining the scope of the legal obligation of confidentiality in cases concerning a breach. Professional codes of ethics typically reflect or are underpinned by obligations owed by the professional at law.

Professional codes of ethics are usually made by an industry’s governing regulatory board or peak body.²⁹ They may also be enacted as subordinate legislation,³⁰ or given particular weight under an Act. Lawyers’ obligations to maintain their clients’ confidentiality are set out in the legal profession’s conduct rules.³¹

Exceptions to obligations of confidentiality

The law does not give a client a ‘cast-iron guarantee of confidentiality’.³² A professional may disclose confidential information; for instance, where an exception in the public interest arises, or where they have a duty to disclose the information because of legislation or a court order. As Lord Diplock stated in Parry-Jones v Law Society:

Such a duty of confidence is subject to, and overridden by, the duty of any party to that contract to comply with the law of the land. If it is the duty of such a party to a contract, whether at common law or under statute, to disclose in defined circumstances confidential information, then he must do so, and any express contract to the contrary would be illegal and void. For example, in the case of banker and customer, the duty of confidence is subject to the overriding duty of the banker at common law to disclose and answer questions as to his customer’s affairs when he is asked to give evidence on them in the witness box in a court of law.³³

Professionals can rely on exceptions to legal obligations of confidentiality to defend allegations that they have breached those obligations.

The main exceptions to an obligation of confidentiality are:

• waiver by the person to whom the obligation is owed through express or implied consent (when a person waives confidentiality, they give up their right to insist that it be maintained)
• where the professional collaborates with colleagues to fulfil the expected service to the client
• disclosure of de-identified information (for example, to support medical research)
• legislation that overrides any obligations of confidentiality and imposes a statutory duty to disclose (for example, mandatory reporting obligations that require people in particular roles to report suspected child physical or sexual abuse to authorities)
• compulsory court processes (for example, where a subpoena is issued, or the recipient of the information is called as a witness)
• disclosure in the public interest.³⁴

The public interest exception allows the person who has received confidential information to disclose it to a third party, even if the person who provided the information has not consented, and even if there is no specific legislative provision requiring them to do so. This exception generally applies to information relating to unlawful conduct. The exception, also known as the ‘iniquity rule’, was established in 1856 in the English case of Gartside v Outram:

There is no confidence as to the disclosure of an iniquity. You cannot make me confidant of a crime or a fraud, and be entitled to close up my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part; such a confidence cannot exist.³⁵

More recently, Australian courts have confirmed that courts will not protect duties of confidentiality when enforcing such duties would obstruct the administration of criminal law.³⁶

What constitutes an iniquity is not clearly defined in case law, but it tends to mean information concerning ‘crimes or civil wrongs of a serious nature’.³⁷ For example:

… the more serious the nature of the misdeed, the more likely the iniquity defence will succeed. At the other end of the spectrum, breach of a statutory proscription against misleading and deceptive conduct, or proof of actionable negligence, is unlikely to amount to ‘iniquity’ by itself. Nor is behaviour that some, or even many, in society may consider to be immoral, depraved or scandalous, if it is not otherwise illegal.³⁸

As such, the threshold for satisfying the ‘iniquity rule’ is high. When a person becomes aware of serious criminal conduct and believes there is a compelling public interest in providing confidential information to a law enforcement agency, they must ensure that ‘the information is required in the course of the investigation of an actual or reasonably apprehended breach of the criminal law’,³⁹ and not simply because a crime has been committed and they wish to disclose general information that may be only vaguely related.⁴⁰

The public interest exception may also justify disclosure of confidential information to prevent imminent serious physical harm to the client or another person.⁴¹ In these circumstances, care must be taken about what information to disclose, and to whom, so that the disclosure is only as extensive as is necessary to achieve the purpose of the exception.⁴²

When a person raises a claim that the public interest requires the disclosure of otherwise confidential information, the courts have to carefully examine whether the disclosure is in fact warranted by law.⁴³ This exercise, at least implicitly, requires some assessment of whether the specified public interests are best served by disclosure or non-disclosure.⁴⁴

Due to the many different ways public interest issues can arise, the legal rules about disclosure in the public interest are complex and can be confusing.⁴⁵ Despite the guidance case law provides, the courts have refrained from prescribing all the circumstances where a person may or must make a disclosure of confidential information.⁴⁶ Instead, the individual professional must decide whether to disclose, and this may be difficult to navigate.

Challenges associated with the exceptions to the duty of confidentiality owed specifically by lawyers are discussed in Chapter 15.

Legal obligations of privilege

Privileged information can be considered a subset of confidential information. It is confidential information that has additional protections. In essence, the law of privilege allows a person to resist the otherwise compulsory disclosure of information in legal proceedings. If information is privileged, a court cannot order a person to reveal or disclose it. Therefore, its protection from disclosure is stronger than the protection attaching to confidential information generally.

There is a public interest in transparency and uncovering the truth, which facilitates access by courts and parties to any and all information relevant to a matter under consideration in a legal proceeding, even if it is considered confidential in all other contexts.⁴⁷ In certain narrow circumstances, however, the law recognises that there may be a competing public interest that outweighs the public interest in courts and parties gaining access to particular information. If that is the case, information will be regarded as ‘privileged’ and protected from disclosure requirements unless an exception applies.

Exceptions to privilege are outlined in more detail below, but generally speaking, privilege will not apply if the client waives the privilege—for example, if they intentionally disclose or consent to disclosure of the information. Nor will the privilege apply if the law permits it to be displaced by other public interest considerations, such as not protecting illegal conduct.

Obligations of privilege, therefore, are duties imposed on people entrusted with certain information to protect it, and not disclose or disseminate that information, including in the context of relevant legal proceedings.

People subject to obligations of privilege

In Victoria, privilege applies to these people, in certain defined circumstances:

• lawyers
• doctors and counsellors
• journalists
• religious clerics.

Whether an individual member of these professions holds an obligation of privilege will depend on a range of legal and factual questions, including:

• the nature of the information communicated
• the circumstances in which it was communicated
• whether there are any exceptions to the privilege.

The basis for obligations of privilege

Obligations of privilege exist for the same reasons as obligations of confidentiality, as outlined in each category of privilege below. The additional protection given to privileged information (over and above confidential information) suggests that the law places a particularly high degree of importance on the need to foster open communication in relationships with these categories of professionals.

Categories of privilege

In Victoria, there are four legislated categories of privilege: legal professional privilege (or client legal privilege), medical privilege, journalist privilege, and religious privilege. These categories are discussed in turn below.

Legal professional privilege

Legal professional privilege is the most well-known type of privilege. It exists at common law and also in statute.⁴⁸

Legal professional privilege is a fundamental tenet of the administration of justice and cannot be displaced for reasons of convenience: it is regarded as a substantive right, rather than a mere rule of evidence or aspect of court procedure.⁴⁹

As with confidentiality obligations, legal professional privilege exists to ensure that a client can speak candidly to their lawyer and obtain frank, independent legal advice without fear that the information will be disclosed in court.⁵⁰ This facilitates the proper administration of justice, by helping to ensure that individuals can receive adequate legal advice and a fair trial.⁵¹

The statutory form of legal professional privilege in Victoria is called client legal privilege.⁵² There are two types of communication protected by client legal privilege:

• communications made for the dominant purpose of seeking and providing legal advice (advice privilege)⁵³
• communications for use in existing or anticipated legal proceedings (litigation privilege).⁵⁴

Client legal privilege protects both written and oral communication.⁵⁵ The communication must be confidential to be privileged.⁵⁶ The privilege belongs to the client, and the obligation to protect it rests on the client’s lawyer, as well as any employees or agents of the lawyer (for example, a legal secretary).⁵⁷ Communications may be privileged even if there is no formal lawyer–client retainer (contract) in place.⁵⁸

Client legal privilege can be lost when there is an inconsistency between the conduct of the client and the obligation to maintain the confidentiality.⁵⁸ This can occur when:

• the client expressly waives privilege⁶⁰
• the client impliedly waives privilege—for example, if the client discusses the legally privileged information with third parties in such a way that it is no longer confidential⁶¹
• communications are made by the client to their lawyer or a third party in furtherance of the commission of:
  • a fraud
  • an offence
  • an act that makes a person liable to a civil penalty
  • a deliberate abuse of power (for example, if the client asks their lawyer to destroy documents knowing that they are required to be produced to a court, the communications about that request would not be privileged).⁶²

Medical privilege

Medical privilege protects certain communications made between a doctor and their patient from disclosure in a court proceeding.⁶³ Medical privilege reflects the importance of encouraging people to seek treatment for medical and psychological problems without fear that their sensitive and personal information may be disclosed in court proceedings and potentially used against their interests.

In Victoria, medical privilege is only available in the limited circumstances set out in the Evidence (Miscellaneous Provisions) Act 1958 (Vic).⁶⁴

A doctor (described in the legislation as a ‘physician or surgeon’) cannot be compelled to give evidence in any civil proceeding about information acquired in attending their patient and that was necessary to enable them to treat the patient.⁶⁵ The privilege does not apply to certain proceedings, including those relating to the death of the patient or in which the sanity or capacity of the patient is in dispute. Nor does it apply to criminal proceedings— in those matters, health information is treated as confidential information, meaning that it must be disclosed to the other parties to the proceeding if it is relevant.⁶⁶

Additionally, registered medical practitioners⁶⁷ and counsellors⁶⁸ cannot be compelled to give evidence in a legal proceeding (either civil or criminal) about any confidential information divulged to them by a victim of sexual assault.⁶⁹ This privilege is not absolute—the court may allow evidence of a confidential communication to be given if, for example, the public interest in preserving the confidentiality of the information is outweighed by the public interest in admitting the communication into evidence.⁷⁰ In determining whether to order disclosure of the confidential communication, the court must assess how relevant that particular information is to proving the issues in the proceedings, and must also consider whether disclosure would cause harm to the victim, or could discourage other victims from seeking counselling.⁷¹

Journalist privilege

Journalists have obligations of privilege relating to the identity of a person (referred to as a ‘source’ or an ‘informant’) who has given them information in the expectation that the information may be published in a news medium.⁷²

Journalist privilege (also known as a ‘shield law’) recognises the importance of the freedom of the press and ‘the important role that journalists play in a democracy’ in providing information and opinions to the public.⁷³ To fulfil this role, journalists need access to information, and are often asked to assure sources that they will not disclose from whom they obtained the information. If journalists were compelled to reveal the identity of confidential sources in court proceedings, this could dissuade those with information about matters of public importance from coming forward, thereby preventing facts and opinions from being aired.

The Evidence Act 2008 (Vic) provides that if a journalist has promised a source not to disclose their identity, neither the journalist nor their employer can be compelled by a court to give evidence or produce a document that would disclose the source’s identity or enable their identity to be ascertained.⁷⁴

In Victoria, journalist privilege only applies to people ‘engaged in the profession or occupation of journalism in connection with the publication of information, comment, opinion or analysis in a news medium’ and who must comply with recognised standards or codes of practice.⁷⁵ It is therefore unlikely that the privilege would apply to people merely posting material on blogs or social media platforms.⁷⁶

Journalist privilege is not absolute—it has been described as a ‘discretionary rule of evidence created by the Evidence Act’.⁷⁷ A court may override the privilege if the public interest in knowing the source’s identity outweighs:

• any likely adverse effect of the disclosure on the source or any other person
• the public interest in the communication of facts and opinion to the public by the news media and in the ability of the news media to access sources of facts.⁷⁸

Religious privilege

In Victoria, religious privilege enables members of the clergy of any church or religious denomination to refuse to give evidence that a religious confession was made to them or what the contents of a religious confession were.⁷⁹ A religious confession is ‘a confession made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the church or religious denomination concerned’.⁸⁰

This privilege recognises the value to society of encouraging people to seek advice about personal problems from a trusted cleric, such as a minister, rabbi or priest, in circumstances where they may be reluctant to ‘bare their souls’ to a stranger.⁸¹

There are exceptions to the privilege. A cleric may be compelled to give evidence about a religious confession if the communication was made for a criminal purpose. They can also be compelled to give evidence in proceedings for an offence involving a failure to:

• comply with mandatory reporting requirements about a child in need of protection
• disclose information that leads a person to reasonably believe that a sexual offence has been committed against a child.⁸²

The risks of police accessing and using confidential or privileged information from human sources

The Commission’s terms of reference required it to examine policies and processes relating to the use of human sources who are subject to legal obligations of confidentiality or privilege.

As discussed in Chapter 2, human sources are people who covertly supply information about crime or people involved in criminal activity to law enforcement agencies. There are risks associated with the use of all human sources. There are additional risks associated with using human sources to obtain information that is confidential or privileged.

These additional risks fall into two broad categories:

• the risk of undermining the important objectives that underpin confidentiality and privilege protections, with negative implications for individuals, professions and the community
• the risk of interfering with the proper administration of justice, as illegal and improper investigation methods (and a failure to disclose how evidence was obtained) can compromise the integrity and ultimate success of prosecutions.

Arguably, these risks do not arise, or they are justifiable risks, if the human source provides information to police in one of these circumstances:

• there is an exception to the source’s legal obligations to keep the information confidential
• they obtained the information outside the scope of their professional responsibilities.

Nevertheless, as discussed later in this chapter, determining whether any exceptions apply involves considering complex legal, ethical and operational questions. This makes it difficult to establish simple processes for avoiding or mitigating the risks involved.

Undermining the objectives of confidentiality and privilege protections

As noted above, confidentiality and privilege protections underpin and foster relationships of trust and candour that are important for broader policy purposes.

When people confide in professionals about personal or sensitive matters, they do so with the expectation that their confidentiality will be respected and maintained. Such an expectation may be founded on assurances or undertakings provided by the professional in question (including in written privacy policies), a general understanding of the nature of the relationship, and/or a knowledge of the applicable legal principles. Information shared in the context of a professional relationship attracts greater legal protections than information that a person considers sensitive or confidential and shares in the context of a personal relationship.

Therefore, if a professional engaged by a person discloses the person’s confidential or privileged information to others in a way that is inconsistent with their expectations or rights, this undermines the person’s trust in the professional. It also exposes the person to the consequences of having others know their private information. Dissemination of such information may compromise their legal interests (if, for example, their opponents can use the information against them in legal proceedings), jeopardise their safety (if, for example, their whereabouts are made known to someone who intends to harm them) or expose them to discrimination (if, for example, someone treats them less favourably because they know they are suffering from a particular medical condition). Alternatively, it could merely cause them personal embarrassment.

Permitting police to access legally confidential or privileged information—or providing scope for professionals to breach their legal and ethical obligations—undermines the confidence that people can have in professionals. This may result in people not seeking advice and support for important legal problems or health concerns, not confiding in counsellors or religious advisers, or not coming forward with important information for journalists. All of this would have negative consequences not only for individuals, but for the community generally.

If professionals disclose confidential or privileged information about their clients to police or others, the reputation of the entire profession to which they belong may be damaged, and public confidence in institutions undermined. These risks are heightened if the disclosure is made to a person whose interests are in direct conflict with or adverse to those of the client.

Interfering with the proper administration of justice

To the extent that police acquisition and use of confidential information involves contraventions of laws or ethical standards (by the police or by the human source), such acquisition and use may ultimately result in a prosecution being withdrawn or a conviction being overturned on appeal. Non-disclosure of the full details relating to the acquisition of evidence may also jeopardise the outcome of a prosecution. As discussed in Chapters 2 and 5, this is because such actions can prevent an accused person from obtaining a fair trial and may result in a substantial miscarriage of justice.

Given the higher level of protection afforded to privileged information, the consequences associated with its disclosure are likely to be more pronounced. Courts have held that the deliberate invasion of legal professional privilege may lead to a criminal proceeding being stayed on the basis that it involves ‘a serious affront to the integrity of the justice system’.⁸³ In considering whether to stay the proceeding, the court will consider the particular circumstances of the case, including the gravity of the crime and whether the conduct prejudiced the accused person.⁸⁴

Police management of risks associated with confidential or privileged information

Due to the risks involved in seeking information that may be confidential or privileged, some law enforcement agencies prescribe additional or more rigorous processes for acquiring, using and disseminating material from human sources that may be confidential or privileged. Such processes variously involve requirements:

• for senior representatives of the agency, or an external authority, to approve the use of the human source
• to apply a threshold test or criteria for using the human source—for example, a compelling public safety or national security reason
• to obtain legal advice about the implications of using the human source
• for police officers to refer any information obtained from a human source that may be confidential or privileged to more senior personnel and/or their legal advisers
• to notify prosecuting authorities that a human source with legal obligations of confidentiality or privilege has been engaged and/or that confidential or privileged information has been obtained.

These processes are discussed in detail in Chapter 12 but key features are outlined briefly here. Processes relevant to the disclosure of information obtained from human sources by police to prosecuting agencies and accused persons are discussed in Chapter 14.

The risks associated with police obtaining and using confidential or privileged information apply not only in relation to the use of human sources, but also to the use of other covert or coercive means, such as controlled operations, covert surveillance, coercive questioning or search warrants. The Commission understands that Victoria Police has operating procedures in place for ‘quarantining’ privileged information obtained through certain covert powers.⁸⁵ In the case of information obtained through telephone intercepts under the Telecommunications (Interception and Access) Act 1979 (Cth), for example, a dedicated unit of Victoria Police undertakes the initial monitoring of legally intercepted information and identifies any sensitive material, such as conversations between the target and a lawyer. If this information is assessed by senior officers and/or the Victorian Government Solicitor’s Office as being subject to legal professional privilege, it is quarantined so that it is not available to investigators working on the case. The staff in the responsible unit are provided with one-on-one training about this process and their role in identifying sensitive material.⁸⁶

Approval

In Victoria, New South Wales, the Northern Territory, the United Kingdom and the United States of America, human source policies expressly address police access to and use of confidential and/or privileged information. These policies take varying approaches to approving the use of human sources with legal obligations of confidentiality or privilege.

In certain circumstances and subject to a prescribed approval process, the Victoria Police Manual—Human Sources (Human Source Policy) permits:

• the registration of a human source with legal obligations of confidentiality or privilege
• the use of information that is or appears to be in breach of a human source’s legal obligations of confidentiality or privilege.⁸⁷

In cases where approval is granted, it must be for a specific time period and specific purpose, and the human source must be managed as a ‘high-risk’ source.⁸⁸

At the time when the Commission conducted its consultations with interstate law enforcement agencies, New South Wales and the Northern Territory were the only other Australian jurisdictions in which official police policies and procedures contained any specific guidance about the use of human sources with legal obligations of confidentiality or privilege.

New South Wales Police’s Human Source Management Policy instructs that, if a lawyer or legal representative is to be registered as a human source, caution should be exercised to ensure that any information provided does not impinge upon or breach obligations of legal professional privilege. It also explains to officers what legal professional privilege is, its purpose and that it can only be waived by the client.⁸⁹ Further information about this policy is contained in Chapter 12.

Northern Territory Police advised the Commission that its Human Source Management Instruction states that people bound by an obligation based in either legal or medical privilege cannot be used as human sources.⁹⁰ This would not, however, prevent a lawyer or doctor from providing information that falls outside the scope of their professional obligations.

Agencies in Tasmania and Western Australia advised the Commission that policies addressing the issue were being developed.⁹⁰ The policy under development by Western Australia Police is likely to require an elevated authorisation process for the recruitment of a human source with legal obligations of confidentiality or privilege.⁹²

In the United Kingdom, the Covert Human Intelligence Sources (CHIS)⁹³ Code of Practice establishes a detailed process for approving access to and use of legally privileged or confidential information obtained from human sources.⁹⁴

In the United States of America, at the federal level, the Attorney General’s Guidelines Regarding the Use of Confidential Informants introduced in the early 2000s state that special approval is required if federal law enforcement agencies wish to use human sources (referred to as ‘confidential informants’) ‘who are under the obligation of a legal privilege of confidentiality’.⁹⁵ The Commission was unable to confirm whether this version of the guidelines is still current.

Permitted circumstances

In Victoria, if the specific purpose of using a human source is to obtain confidential or privileged information, or if police wish to use information that appears to have been provided in breach of a human source’s legal obligation of confidentiality or privilege, approval will only be given if there are ‘exceptional and compelling reasons’.⁹⁶ Those reasons must relate to national security or the prevention of a serious threat to life or serious injury, and there must be no other reasonable means of obtaining the information.⁹⁷ These provisions were inserted into the Human Source Policy in May 2020.⁹⁸

In the United Kingdom, the use of any human source must be both necessary and proportionate to the aim of using the human source.⁹⁹ The policy framework includes additional safeguards for the use of human sources where confidential or privileged information may be acquired.¹⁰⁰ The requirements differ depending on whether the information is confidential or privileged in nature, and whether the use or conduct of the human source is intended or likely to obtain such information. The most stringent requirements apply where the use or conduct of a source is intended to obtain, provide access to or disclose legally privileged information. The authorisation of human sources in these circumstances requires prior notification to and approval of an independent Judicial Commissioner from the Investigatory Powers Commissioner’s Office.¹⁰¹ An authorisation should only be sought where there are ‘exceptional and compelling circumstances that make the authorisation necessary’—for example, in the interests of national security.¹⁰²

Under the available guidelines in the United States, at the federal level, no specific test appears to be applied to the decision about whether to register a human source under the ‘obligation of a legal privilege of confidentiality’. The decision is made by the Confidential Informant Review Committee based on information contained in reports about the person’s suitability to be registered as a source. However, the guidelines do prescribe a process for authorising a human source to engage in otherwise illegal activity if it is necessary for one of these reasons:

• to obtain information or evidence essential for the success of an investigation that is not otherwise reasonably available
• to prevent death, serious bodily injury or significant damage to property.¹⁰³

In either case, the benefits to be obtained must outweigh the risks.¹⁰⁴ This process cannot be used to obtain information that would be unlawful if conducted by a law enforcement agent (for example, illegal wiretapping, illegal opening or tampering with the mail, or trespass amounting to an illegal search).¹⁰⁵

How police define legal obligations of confidentiality or privilege

The policies and processes in Victoria, New South Wales, the United Kingdom and the United States of America define legal obligations of confidentiality or privilege by reference to categories of sources, the nature of the information or a combination of both.

Since 2014, Victoria Police’s Human Source Policy has defined human sources with legal obligations of confidentiality or privilege by reference to the source’s occupation. In May 2020, the policy was amended to refer both to the occupation of the human source and the nature of information that may be obtained from a source.¹⁰⁶ Police officers must follow a special approval process before they receive information from or consider approaching a person to whom a legal obligation of confidentiality or privilege may apply as a result of their occupation. These occupations are lawyers, doctors, parliamentarians, court officials, journalists and priests, and such people are classified as ‘Category 1’ sources in the policy.¹⁰⁷ Police also need to follow this special approval process:

• if a potential human source has a ‘connection to’ a lawyer, doctor, parliamentarian, court official or priest, and information may be obtained that would breach a legal obligation of confidentiality or privilege
• if an active human source who is not subject to a legal obligation of confidentiality or privilege provides information that appears to be subject to a legal obligation of confidentiality or privilege.¹⁰⁸

A person who has a ‘connection to’ a Category 1 occupation is someone who previously worked in a Category 1 occupation; is likely to receive confidential or privileged information from a person in a Category 1 occupation; or is in a similar occupation or role where they are likely to receive such information.¹⁰⁹ The Human Source Policy does not provide any additional guidance to explain what roles or occupations may fall within ‘a similar occupation or role where they are likely to receive legally privileged or confidential information’.¹¹⁰

The Human Source Policy mandates that the decision to approach or approve a source in a Category 1 or connection to Category 1 occupation can only be made by the Victoria Police Human Source Ethics Committee—regardless of whether the information the person may be able to give to police appears to have been received in connection with their professional duties or whether it does in fact engage any legal obligations of confidentiality or privilege.¹¹¹

The occupations listed in Category 1 include those who owe obligations of privilege as well as confidentiality (lawyers, doctors, journalists and priests). The inclusion of parliamentarians and court officials appears to be in response to the Kellam Report, which listed them as examples of human sources who may have conflicting duties.¹¹²

In the United Kingdom, it is the confidential or privileged nature of the material or information obtained or likely to be obtained from a human source, rather than the professional status of the human source, that is the focus of the policy and associated safeguards. Examples of professions are provided as guidance:

Particular consideration should be given in cases where the subject of any intrusion might reasonably assume a high degree of confidentiality, or where confidential information is involved. Confidential information consists of matters subject to legal privilege, confidential personal information, confidential constituent information, or confidential journalistic material. So, for example, extra care should be taken where, through the use or conduct of a CHIS, it would be possible to acquire knowledge of discussions between a minister of religion and an individual relating to the latter’s spiritual welfare, or between a Member of Parliament and an individual or group of constituents relating to private constituency matters, or wherever matters of medical or journalistic confidentiality or legal privilege may be involved.¹¹³

The United Kingdom Code of Practice also addresses law enforcement agencies’ management of any information obtained from a human source that may be privileged. Agencies must consult with their legal adviser if they believe they have acquired information that is privileged. The legal adviser, rather than the investigating officer, determines whether the material is privileged, and, in cases of doubt, the Investigatory Powers Commissioner’s Office may be consulted.¹¹⁴

The approach outlined in the available federal United States guidelines considers both the professional status of a potential source and the nature of any information that might be provided. When initially assessing the suitability of a potential source, federal law enforcement officers must consider, among other things, whether the source is ‘a party to, or in a position to be a party to privileged communications (eg a member of the clergy, a physician, or a lawyer)’.¹¹⁵ Further, if the law enforcement agency, in conducting an investigation involving a human source, believes that the source ‘will obtain or provide information that is subject to, or arguably subject to, a legal privilege of confidentiality belonging to someone other than the [source]’, they must notify the attorney assigned to the matter in advance whenever possible.¹¹⁶

Issues and challenges

In light of the risks associated with police using human sources with legal obligations of confidentiality or privilege—or otherwise accessing confidential or privileged information—the Commission considered whether it is ever appropriate for police to seek out or use such sources or information, and, if so, in what circumstances and subject to what safeguards. A key question is: Can the risks be meaningfully mitigated given the complexity of the legal and policy issues involved?

In the sections below, the Commission outlines:

• different views about the appropriateness of using human sources with legal obligations of confidentiality or privilege
• the challenges associated with identifying potentially confidential or privileged information.

The Commission primarily focused on the use of lawyers as human sources. The subject matter of its inquiry was one reason for this, but so were the potentially more significant consequences for the criminal justice system of using lawyers in this way. In particular, the accused person’s right to a fair trial is more likely to be impacted by the use of a lawyer as a human source than it is by using other categories of people with legal obligations of confidentiality or privilege in this capacity.

The appropriateness of using human sources with legal obligations of confidentiality or privilege

Stakeholders consulted by the Commission expressed different views about the appropriateness of using lawyers and other professionals as human sources.

Several Australian law enforcement agencies supported policies enabling the potential use of lawyers and other professionals as human sources, arguing that their obligations of confidentiality and privilege can be identified and appropriately managed. They argued that it would not be reasonable to impose a blanket prohibition on a person acting as a human source simply because they had obligations of confidentiality or privilege arising from their occupation.¹¹⁷ Such a prohibition would hinder the provision of information that may be important for preventing a significant risk to the public or solving a very serious crime.¹¹⁸

Victoria Police stated that it may be appropriate to use a lawyer as a human source in some circumstances:

This can occur most obviously when the information that the person is giving has nothing to do with that person’s professional role. Also, Victoria Police’s current policy recognises that there may be situations of significant and immediate risk to public safety that can justify such use.¹¹⁹

Other stakeholders similarly noted that there may be limited circumstances in which a lawyer could act as a human source without compromising their obligations and duties—for example, if they were passing on information at the request of a client, or information obtained in their capacity as a private citizen, unconnected with their professional role.¹²⁰

Victorian legal profession and regulatory bodies consulted by the Commission generally opposed the use of lawyers as human sources—both in respect of their clients and in relation to matters outside the scope of their practice—arguing that the nature of lawyers’ duties and obligations is inherently incompatible with their use as human sources.¹²¹

In their view, using a lawyer as a human source would risk:

• undermining the lawyer–client relationship and the trust required to support that relationship
• damaging the reputation of the legal profession overall, as clients may doubt that lawyers would treat their information as confidential
• placing conflicting duties (to clients, the courts and law enforcement agencies) on lawyers, which they would have difficulty reconciling
• creating unidentifiable conflicts of interest when representing a client who, unbeknown to the lawyer, was charged on the basis of information first derived from the lawyer—such a conflict of interest would be impossible to identify because human sources generally do not know how the information they provide is ultimately used
• compromising a lawyer’s independence if they appear in a matter in opposition to a law enforcement agency with whom they also have a covert relationship.

The Criminal Bar Association emphasised the heightened risk of using a criminal lawyer as a human source, as compared to lawyers engaged in other areas of practice. The Association submitted that ‘there is no possible justification for counsel acting in a criminal matter to provide information to police unless strictly on instructions of the client’.¹²² To do so would create an inherent conflict of interest, and would prevent the lawyer from being able to act independently when opposed to law enforcement or regulatory authorities that they have covertly assisted in the past.¹²³ It would also place the personal safety of the lawyer at risk, because unsuccessful defendants may suspect that their lawyer contributed to an adverse result in a criminal trial.¹²⁴

The Victorian Bar also noted the significant burden that would be placed on police responsible for managing human sources with legal obligations of confidentiality or privilege ‘to ensure that professional standards are not compromised by virtue of that person’s status as an informer’.¹²⁵ The Victorian Bar submitted that it would be practically impossible for law enforcement officers to discharge this responsibility satisfactorily in respect of human sources who are practising lawyers, and concluded that lawyers should not be used as human sources ‘in any circumstances in which there is a risk of a breach of professional obligation’.¹²⁶

The Law Institute of Victoria expressed the view that it would never be appropriate for a lawyer to act as a human source, even if the information being provided to police related to their family or other contacts rather than to their clients. This is due to the risks that the information may still be subject to the duty of confidentiality; that the individual being informed on may believe they are in a lawyer–client relationship with the lawyer; and that the reputation of the profession may be damaged.¹²⁷

The Victorian Legal Services Board and Commissioner (VLSB+C) similarly opposed lawyers disclosing information derived from social activities to police, but acknowledged that in the absence of a specific prohibition, law enforcement agencies may continue to consider registering and using lawyers as human sources. In their view, if this were to occur, it should be limited to matters wholly unconnected with the person’s practice as a lawyer.¹²⁸

Several interstate legal profession bodies also concluded that it would be inappropriate to use lawyers as human sources in any circumstance, due to the centrality of obligations of confidentiality and privilege to the legal profession, and because it would be unacceptable to allow police to determine in which situations it would be appropriate to use lawyers as human sources.¹²⁹

In light of the circumstances that led to the Commission’s inquiry, legal profession bodies in Victoria and New South Wales have published guidance for lawyers about their duty of confidentiality and the circumstances in which voluntarily providing information to police may be permissible.

The VLSB+C regulatory guideline titled Lawyer Conduct in Providing Information to the Police encourages lawyers to seek guidance from the Law Institute of Victoria or Victorian Bar ethics advisers if they are unsure about how to resolve competing obligations arising out of information they have received from or about their clients.¹³⁰

Guidelines published by the New South Wales Bar Association provide unequivocal advice that ‘a barrister must never act as [a human source] against a current or former client’.¹³¹ The Association also concludes that acting as a human source against a non-client would risk compromising a barrister’s independence, especially if they practise in criminal proceedings or other matters touching on the operation of law enforcement agencies.¹³² The guidelines advise that a decision ‘to disclose threatened criminality for preventative purposes is largely a matter of professional conduct and ethics’.¹³³ It suggests that any barrister wanting to take such action should first attempt to advise the client against the threatened conduct. If no satisfactory reassurance is received, they should then seek ethical guidance, discuss the proposed disclosure with the client (if safe to do so), explain the conflict of interest that has arisen and the need to withdraw from representing the client, assist the client to access alternative legal representation if possible, and cease acting for the client.¹³⁴

Other options for clarifying the exceptions to lawyers’ duty of confidentiality, and stakeholders’ views about them, are discussed in Chapter 15.

Identifying legal obligations of confidentiality and privilege

The complex nature of legal obligations of confidentiality and privilege has implications for human source management at both a policy and an operational level. It is difficult to specify the full range of legal obligations and exceptions in official policies. It is equally challenging for individual officers to identify the precise legal constraints that apply to a human source or the information they hold, and to assess the risks of acquiring and using that information.

In many instances, it will be readily apparent that a human source has legal obligations of confidentiality or privilege in relation to the information provided—for example, when the source is a lawyer who is providing information obtained directly from an existing client while advising them about their legal position.

There will be other circumstances, however, in which it will be more difficult to determine whether legal obligations of confidentiality or privilege arise because:

• it is unclear whether the human source is subject to legal obligations of confidentiality or privilege in respect of the information being offered
• it is unclear whether an exception to the source’s legal obligations applies
• the source does not owe a relevant legal obligation to the person being informed on, but the information being provided may still be confidential or privileged.

In practice, it may be unrealistic to expect police officers to accurately determine the obligations of a potential human source, or the status of a category of information at face value. An assessment of whether particular legal principles apply generally requires the careful application of complex legal tests to the pertinent facts.

At the same time, given the risks that illegally or improperly obtained evidence can ultimately have for the outcome of a criminal prosecution, there is a strong imperative for police to understand and respect the boundaries of confidentiality and privilege when dealing with human sources.

Unclear application and scope of legal obligations

Although many relationships of confidentiality or privilege will be readily apparent, the breadth and complexity of the law relating to such obligations means that there is a lack of clarity about their existence or scope in any given circumstance.

Legal obligations to keep certain information confidential can arise in very specific contexts, such as government employees who are subject to secrecy obligations,¹³⁵ or in very broad circumstances, such as when the equitable duty of confidence (discussed earlier in this chapter) applies.¹³⁶

An equitable duty of confidence can be difficult to identify. In Australia, the test requires the court to ask whether the information is actually confidential and whether ‘a reasonable man in the position of the recipient would have recognised that the information was given to him in confidence’.¹³⁷

The principles of equity have been used widely by courts to protect a range of relationships, including commercial, professional and personal relationships where the trust associated with confidentiality is necessary for the relationship to operate effectively.¹³⁸ The broad range of equitable obligations adds to the complexity in identifying who has obligations of confidentiality.

As noted above, even if a human source falls into a category of professionals who generally owe legal obligations of confidentiality or privilege to their clients, their professional status alone may not necessarily determine whether the information they are providing is legally confidential or privileged.¹³⁹

For example, the information may have no connection to their professional or legal obligations—instead, it might relate to family members or friends based purely on the human source’s personal knowledge and relationships, in their capacity as a private citizen. Nevertheless, while certain matters may ostensibly be within a professional’s personal knowledge, the circumstances in which they received that information may still carry an expectation of confidentiality (and even privilege), given broad community perceptions about the obligations professionals—such as lawyers and doctors—generally owe. A lawyer may be subject to an equitable obligation of confidence, and even an obligation of privilege, to a non-client, regardless of whether the lawyer considers this to be the case.¹⁴⁰ For example, as evident in the case of Ms Gobbo, individuals might provide information to a lawyer in a personal or social context, yet still consider that the lawyer will keep the information confidential due to their professional obligations.

Other legal considerations may make it difficult to readily determine whether information is confidential or privileged:

• Confidential information is not limited to information communicated by the client to the professional. It can also include information or opinions based on observations or assessments by the professional.¹⁴¹
• How long an obligation of confidentiality must be observed depends on the professional relationship. For example, an obligation of confidentiality in professional relationships with lawyers, doctors and clergy may continue indefinitely; whereas in other cases, it may cease when the service contract comes to an end.¹⁴²

The applicability of privilege will also depend on the precise terms of any legislative provisions establishing the privilege and the tests that have been developed by the courts concerning the privilege.

It may be challenging for a police officer to assess whether particular provisions apply to the information they have been given; for example, whether communications between a lawyer and their client were made for the ‘dominant purpose’ of seeking and providing legal advice. Further, the availability of some categories of privilege will depend on the nature of the legal proceeding in which disclosure of information may ultimately be sought. If, at the time when police are assessing the status of information, no legal proceedings are yet under way or contemplated, there may be uncertainty about whether the information should be regarded as privileged.

Unclear exceptions to legal obligations

A human source who owes legal obligations of confidentiality or privilege to clients may be able to provide information to police without breaching those obligations, if there is a recognised exception permitting or encouraging disclosure despite the obligations of confidentiality. This would be the case, for example, if the confidential or privileged information was within an unambiguous legislative exception or communicated for a criminal purpose, or where it is in the public interest to disclose the information to prevent injury or death. These exceptions are, however, seldom clear-cut.

Exceptions to a person’s legal obligations of confidentiality or privilege may exist at common law and in legislation, and may also be contained in codes of conduct. Sometimes, the exceptions may be too vague or ambiguous to apply swiftly in operational settings, have not yet been tested thoroughly in court, or rely on the professional’s judgement and interpretation of the exception. For instance, Australian courts have established no prescriptive rules as to what constitutes disclosure under ‘public interest’ grounds for doctors.¹⁴³ Without clarity and certainty, a doctor in Australia must essentially make a professional judgement in each case as to whether they should disclose confidential information, a decision that could expose them to legal or disciplinary proceedings.¹⁴⁴

Confidential information provided by human sources not subject to direct legal obligations

As noted above, circumstances may arise where police are dealing with a human source who does not owe any direct legal obligations of confidentiality or privilege to the person being informed on, but who nevertheless has access to, and is in a position to provide police with, information that is itself confidential or privileged. In these circumstances, there may be restrictions on what the recipient of the information is permitted to do with it.

For example, if a person accompanies a friend to a meeting with the friend’s lawyer for the purpose of the friend receiving legal advice, the person will become privy to information that is confidential and privileged. Although the person does not owe obligations of confidentiality or privilege to their friend (these are owed by the lawyer), there may be legal consequences if they disclose confidential or privileged information to others—for example, a court could order an injunction preventing further disclosure of the information, or order that the person to whom it was disclosed destroy all records of it in their possession.

In these circumstances, police may not be alerted by the occupation or role of the human source to consider whether the information the source provides is likely to be confidential or privileged, yet acquiring and using that information may jeopardise an investigation or prosecution if it turns out that using it is illegal or improper.

Accordingly, policies or procedures that rely solely or predominantly on the obligations or duties of the human source arising out of their professional or other employment arrangements may not necessarily explicitly capture all individuals with the potential to access and divulge confidential or privileged information. Therefore, they may fail to protect against the inappropriate use of confidential or privileged information in these circumstances.

Conclusion

Having considered the risks associated with using lawyers and other professionals with legal obligations of confidentiality or privilege as human sources, the Commission has formed the view that their future use should be restricted and subject to strict requirements and safeguards.

In particular, the Commission considers that it is almost never appropriate for police to use a lawyer as a human source to provide information about their own client. This is because it is highly likely that doing so would undermine the fundamental purpose of the lawyer–client relationship, jeopardise the client’s right to a fair hearing, and interfere with the proper administration of justice.

The Commission has stopped short of recommending a complete prohibition on using lawyers and other professionals with legal obligations of confidentiality or privilege as human sources. It accepts that there may be limited circumstances in which the use of such sources may be justified—for example, when there is a compelling public interest reason for acquiring and using the information, there is an unambiguous exception to the duty of confidentiality or privilege, and/or the source is providing information they have come by well beyond the scope of their professional obligations.

Even if one of these limited circumstances arises, justifying this use of lawyers and other professionals as human sources raises very complex legal and ethical questions. As evident in Ms Gobbo’s case, it also increases the potential for significant consequences—for individual rights and for the integrity of the criminal justice system. Accordingly, as noted above, any decision to use such a human source must, in the Commission’s view, be subject to strict requirements and safeguards. Police working in human source management must be vigilant in identifying whether a potential human source may be subject to relevant legal obligations, or whether the information the source is likely to provide may be legally confidential or privileged. They must also proactively consider the ultimate implications of using the source. Among other things, such implications may include compromising an investigation or the proper administration of justice, potentially resulting in a prosecution being withdrawn, a trial being stayed or an appeal against conviction being brought on the basis that a substantial miscarriage of justice has occurred.

The use of human sources where legal obligations of confidentiality or privilege exist must be limited to circumstances where access to the information the source possesses has been assessed as being necessary and proportionate to the aim of using the source. There would need to be a robust risk assessment to determine whether the need for the confidential or privileged information was so great that it outweighed the risks associated with obtaining and/or using it. As set out in Chapters 12 and 13, the Commission considers that a senior Victoria Police officer would need to authorise the use of any human source who is reasonably expected to have access to confidential or privileged information, after having considered the recommendation of an external and independent agency. In addition, if Victoria Police was seeking to use a human source with the intention of obtaining confidential or privileged information, it would need to establish that there were exceptional and compelling reasons for doing so—for example, to avert a risk to the community or the safety of a person, in circumstances where the information cannot be obtained by any other reasonable means.

The Commission recognises the practical challenges in identifying and navigating legal obligations of confidentiality and privilege. These obligations are broad and intricate. Therefore, the Commission also proposes measures to build the capacity of those working within human source management, and to make seeking legal advice more routine. In particular, detailed training and guidance should be provided to police officers about:

• identifying people who are likely to be subject to legal obligations of confidentiality or privilege
• determining whether information likely to be provided by any human source may be legally confidential or privileged.

The Commission’s conclusions and recommendations about how to avoid (or, when appropriate, to manage) the risks associated with using human sources with legal obligations of confidentiality or privilege, and with acquiring in other ways information that is confidential or privileged, are detailed in Chapters 12–15.

Endnotes

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