Chapter 7

Introduction

This Commission was established following revelations that Victoria Police had used Ms Nicola Gobbo, a criminal defence barrister, as a human source.

The High Court of Australia in AB v CD¹ characterised Ms Gobbo’s actions, in ‘purporting to act as counsel’ for people while ‘covertly informing against them’, as ‘fundamental and appalling breaches of [her] obligations as counsel to her clients and of [her] duties to the Court’. It went on to find that Victoria Police was likewise ‘guilty of reprehensible conduct’, having ‘knowingly’ encouraged Ms Gobbo to do as she did and ‘sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law’. The Court found that, as a result, ‘the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system’.²

Understanding how many cases may have been ‘corrupted’ by the conduct of Ms Gobbo and Victoria Police was an important part of the Commission’s task. Term of reference 1 required the Commission to inquire into, and report on, the number of cases that may have been affected by the conduct of Ms Gobbo as a human source, and the extent to which those cases may have been affected. This chapter addresses that term of reference.

The Commission focused on cases potentially affected by Ms Gobbo’s conduct as a human source between 1998, a year after her admission to legal practice; and 2013, when she ceased practising. Further, the Commission focused on cases within this period where convictions or findings of guilt may have been affected by Ms Gobbo’s conduct. This included cases where she acted as a lawyer, as well as cases where she did not act, but that may nonetheless have been affected by her conduct.³

Ms Gobbo was very busy in this period and her conduct related to a great many people and a large number of proceedings. Counsel Assisting undertook a detailed review of cases in this period and submitted that an astounding ‘1,011 persons may have been affected by the conduct of Ms Gobbo as a human source in the criminal justice system’.⁴ After reviewing those submissions, testing the methodology applied and considering the relevant responsive submissions received, the Commission accepts that the cases of 1,011 people may have been affected by Ms Gobbo’s conduct as a human source.

Notwithstanding the Commission’s focus on cases resulting in convictions or findings of guilt, it is important to acknowledge that Ms Gobbo’s conduct may have also affected people who were not ultimately convicted or found guilty of a crime. For example, some people were investigated, charged or prosecuted in part through the use of Ms Gobbo as a human source, and sometimes while she purported to act for them, but they were not ultimately convicted or found guilty. Some of these people told the Commission they were aggrieved by Ms Gobbo’s conduct. In some cases, they had retained her to provide independent legal assistance, but likely did not receive it, owing to her conflicting interests. To this extent, they may have had their rights infringed in the very same way as others whom the Commission has determined are potentially affected by her conduct—the only difference being that they were not found guilty or convicted of a crime.⁵ For practical reasons, and in keeping with the parameters set for this inquiry, it was appropriate and necessary for the Commission to constrain its review of cases that ‘may have been affected’ to cases that resulted in convictions or findings of guilt. This should not, however, be taken as a denial of the legitimate grievances of other people affected by Ms Gobbo’s use as a human source.

It is also important to acknowledge that the repercussions of Ms Gobbo’s conduct as a human source were not caused solely by what she did or failed to do, but also by the actions and inactions of Victoria Police officers, and by the institutional shortcomings within Victoria Police that allowed her improper and unethical conduct to commence, continue, escalate and flourish over many years. In this way, term of reference 1 intersected with term of reference 2, which focused on the conduct of current and former Victoria Police officers in their disclosures about, and the recruitment, handling and management of, Ms Gobbo as a human source. This chapter touches on the conduct of some Victoria Police officers because it is relevant to cases that may have been affected. Chapters 8 and 9 examine the conduct of Victoria Police officers, and the broader organisational context of their conduct, in more detail.

To provide a full account of Ms Gobbo’s actions, the Commission had to do more than set out the potential effects on convicted persons and their proceedings. The magnitude and duration of her conduct was such that it has harmed the wider Victorian criminal justice system—not just Victoria Police, but also the legal profession, the Victorian Office of Public Prosecutions (OPP), the Victorian Director of Public Prosecutions (DPP), and the legal processes at the heart of our democracy—along with community confidence in that system. The ripple effects of this conduct will continue to emerge, and continue to be felt, over coming years.

Having considered the available evidence, the Commission has concluded that Ms Gobbo’s conduct should be referred to a Special Investigator, to determine whether there is sufficient evidence to establish the commission of any criminal offence or offences.

The nature and significance of the Commission’s inquiry into potentially affected cases

The nature and scope of the Commission’s inquiry into the conduct of Ms Gobbo as a human source, and the identification of cases potentially affected by her use, was set by its terms of reference.

Counsel Assisting observed in their submissions to the Commission:

[T]he purpose of the first term of reference … is to give the Government, the public, and the relevant affected persons a general appreciation of the breadth and depth of the impact of the use of Ms Gobbo as a source on cases in the criminal justice system over the extended period that she practised as a lawyer. In the submission of Counsel Assisting, it is not the function of the Commission to determine in which cases and for what precise reasons substantial miscarriages of justice occurred; that is a matter which is properly the preserve solely of the courts. Indeed, the Commission can give no remedy; its report amounts to an opinion. It would also be inappropriate and impracticable for the Commission to engage in the depth or comprehensiveness of analysis of cases that would be required of an appellant in preparing an application for leave to appeal against conviction before the Court of Appeal.⁶

The Commission accepts this submission. The utility of the Commission’s work to publicly expose the nature and extent of Ms Gobbo’s conduct, and identify policy reforms to ensure it is not repeated, would be undermined if the Commission’s findings risked prejudicing future legal proceedings. The Commission’s Letters Patent also required it to take care not to prejudice any ongoing investigations or court proceedings.

The Commission has no judicial power and does not and cannot reach a conclusion about the legal consequences for any particular case. That is a matter for the courts. As discussed in Chapters 2 and 5, however, there are important legal principles that have informed the Commission’s approach to examining Ms Gobbo’s conduct. The principles that are of particular relevance to this chapter are as follows.

The right to a fair trial is at the very core of our criminal justice system and our democracy. Imposing criminal sanctions may be the greatest power that the state holds over individual citizens. As a result of such sanctions, a person may be deprived of basic rights and liberties and publicly exposed as having violated society’s shared norms. That is why, in our democracy, criminal guilt is not determined by the executive, but by the judicial arm of government in independent courts, applying the rule of law. The process for establishing criminal guilt, the criminal trial, must be, and must be seen to be, fair and transparent, and must give an accused person a meaningful opportunity to understand the case against them and to defend themselves. Equally, when someone pleads guilty to criminal offending, thereby exposing themselves to criminal sanctions, it is essential that they are acting on a proper understanding of all relevant evidence for and against them.

Equally important is the right to legal representation. Legal practitioners play a vital role in supporting the integrity of the criminal justice system and ensuring that their clients, no matter how notorious or unpopular, are dealt with according to the law. Legal representation is particularly important for those accused of serious or complex offences as they may be subject to lengthy periods of imprisonment.

Lawyers help clients understand the case against them, identify gaps in the prosecution case and make an effective defence. If clients are found guilty, their lawyers make submissions on their behalf at a sentencing hearing. It is therefore critical that accused persons, no matter who they are, have access to competent, independent and confidential legal assistance. In turn, the lawyers who act for them must comply with their professional duties—not only to their clients, but also to the court and the administration of justice.

Lawyers who prosecute crimes on behalf of the state must also act independently and in accordance with their professional obligations. At trial, for example, a prosecutor’s role is not to secure a conviction at all costs. It is to ensure that the whole case is presented to the court, so that a judge or jury is in the best possible position to determine whether the prosecution has established the case ‘beyond reasonable doubt’.⁷ Consistent with that position, a prosecutor has duties to conduct a case fairly and to call all relevant and credible witnesses, even if those witnesses are helpful to the defence. Police officers and prosecutors also have important duties of disclosure to ensure that the court and the accused person have a complete picture of all relevant evidence, including evidence unhelpful to the prosecution case.⁸ This is discussed further in Chapter 14.

Fiercely protecting the integrity of the processes by which criminal guilt is determined ensures that the criminal justice system operates as our democracy intends, and that the power to prosecute, convict and punish crimes is exercised according to law. As a majority of the High Court observed in Moti v The Queen:

[T]wo fundamental policy considerations affect abuse of process in criminal proceedings. First, ‘the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike’. Secondly, ‘unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice’. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts’ processes in a way that is inconsistent with those fundamental requirements.⁹

Similarly, the observations of Chief Justice Kiefel, Justice Bell and Justice Nettle in Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions are particularly applicable to events leading to this inquiry:

[T]here is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed [that is, stopped] in order to prevent the administration of justice falling into disrepute.¹⁰

The courts and the community are rightly concerned when the criminal justice system is undermined, especially when this is done knowingly by a barrister, who, as an officer of the court, has an essential role to uphold the law and the administration of justice.

The range of potentially affected cases

As noted above, the Commission considers that 1,011 people may have criminal convictions or findings of guilt affected by Ms Gobbo’s conduct as a human source.¹¹

Many of these people will have long since moved on with their lives; they may value their privacy, and may not wish to now relive events that led to their conviction or sentence, nor challenge them in the courts. For those who do seek to appeal, the courts may—depending on the evidence before them in each case—ultimately find that no substantial miscarriage of justice has occurred in their cases. The Commission decided, however, consistent with term of reference 1, to cast a wide net in reporting on whether a case may have been affected, so that the people potentially affected can determine for themselves, knowing the role Ms Gobbo played as a human source, whether to obtain legal advice.

The ways in which cases may have been affected

The figure of 1,011 people resulted from Counsel Assisting applying a methodology to capture, as far as possible, the complete range of people whose convictions may have been affected by Ms Gobbo’s conduct as a human source.

To identify cases, Counsel Assisting applied different categories of conduct relating to Ms Gobbo and Victoria Police.

Categories of conduct: Ms Gobbo

Although Ms Gobbo’s conduct varied considerably between individual cases and periods, Counsel Assisting grouped it into two broad categories:

• Categories 1A and 1B: Conflict of interest
• Categories 2A and 2B: Tainted evidence.¹²

Category 1A applied to cases where Ms Gobbo acted for an accused person (for example, by legally advising that person or appearing in court on their behalf) without disclosing her status as a human source. Category 1B encompassed the scenario in Category 1A, with the additional feature that Ms Gobbo provided information about the person to police, or otherwise assisted or attempted to assist in their prosecution, either before or while acting as their lawyer, and all without disclosing this to them.

Category 2A applied to cases whether Ms Gobbo did or did not act as an accused person’s lawyer, but evidence relied on in prosecuting them may have been improperly or illegally obtained through Ms Gobbo’s use as a human source. Category 2B encompassed the scenario in 2A, with the variation that she did also act for the person concerned, without disclosing to them her status as a human source.

Table 7.1 below summarises these categories of conduct. Some people’s cases may have been affected by multiple categories.

Table 7.1: Categories of conduct—Ms Gobbo

These categories are deliberately broad and cover a wide range of different circumstances. For example, the improper acquisition of evidence (that is, Category 2: Tainted evidence) in one instance might arise from Ms Gobbo passing on to police potentially privileged or confidential information given to her by a client. In another instance, it might be constituted by her directly influencing the production of that evidence, such as when she edited clients’ statements to police that contained incriminating information about other people.

Categories of conduct: Victoria Police

Counsel Assisting devised equivalent categories of conduct for current and former officers of Victoria Police:

• Categories 3A and 3B: Conflict of interest
• Categories 4A and 4B: Tainted evidence.¹³

Category 3A applied to cases where police failed to clarify or discharge their obligations to disclose Ms Gobbo’s role as a human source to the accused person, the prosecution and the courts. Category 3B encompassed the scenario in 3A, together with the additional feature that Ms Gobbo provided information about the person to police before or while she acted as their lawyer.

Category 4A encompassed cases where evidence relied upon in prosecuting an accused person may have been improperly or illegally obtained by Ms Gobbo’s use as a human source, and police did not take steps to clarify or discharge their disclosure obligations. Category 4B encompassed the scenario in 4A, together with the additional feature that Ms Gobbo was acting for the accused person. These categories are set out in Table 7.2. As noted above, the conduct of Victoria Police and its officers is the focus of Chapters 8 and 9.

Table 7.2: Categories of conduct—Victoria Police

All of the categories in Table 7.2 also involve a failure of Victoria Police to take steps to have potential issues, such as public interest immunity (PII), considered by the DPP or the Victorian Government Solicitor’s Office, and then possibly a court.

Underlying principles

Chapter 5 sets out the underlying principles that informed the analysis and identification of potentially affected cases, including why conflicting interests and tainted evidence might have the potential to affect cases.

In summary, if the interests of an accused person are compromised—for example, because their lawyer is not competent and independent, or because the evidence against them was obtained unlawfully or improperly, or because they were not made aware of facts about that evidence that should have been disclosed to them and might have allowed them to challenge it—this may bear on the fairness of their trial or sentencing, and undermine a conviction or finding of guilt.

Identifying potentially affected cases

Informed by the categories of conduct outlined above, Counsel Assisting conducted an in-depth, multi-stage review to determine the range of cases potentially affected by Ms Gobbo’s conduct. The details of the methodology adopted by Counsel Assisting, and the steps taken at each stage of the review, are set out in detail in their submissions.¹⁴

Figure 7.1 represents the five-step approach of Counsel Assisting in identifying affected cases.¹⁵ Of note:

• ‘Group 1’ are people who are not the subject of case studies by Counsel Assisting, but whom they considered may nonetheless be affected.
• ‘Group 2’ are people who are the subject of a case study in Counsel Assisting submissions.
• ‘Group 3’ are people who were not considered to be potentially affected, because they did not have a conviction or finding of guilt within the relevant time period, or because there was no evidence before the Commission to indicate Ms Gobbo may have affected their case.

Figure 7.1: Methodology of Counsel Assisting to identify potentially affected cases ¹⁶

In summary, the first step was to find out who Ms Gobbo’s clients were. Counsel Assisting reviewed Ms Gobbo’s financial records; court records listing cases in which she appeared; and records of the OPP, Commonwealth Director of Public Prosecutions (CDPP), Victoria Legal Aid, Victoria Police and Corrections Victoria. Counsel Assisting also reviewed statements and evidence given to the Commission. They identified 1,306 people whom Ms Gobbo may have represented.

They next established that 1,156 of those 1,306 people had convictions or findings of guilt recorded between 1995 and 2013, when she ceased to practise as a lawyer.

Ms Gobbo was admitted as a legal practitioner on 7 April 1997. She met with agents of the Australian Federal Police (AFP) on 14 May 1998 and discussed, among other matters, her willingness to act as a human source. This was the first occasion Counsel Assisting identified where Ms Gobbo may have acted as a human source after her admission to legal practice. Unlike Victoria Police, however, the AFP did not at this or any time register Ms Gobbo as a human source.

Counsel Assisting identified 973 people with convictions or findings of guilt for whom Ms Gobbo acted between 14 May 1998 and 16 August 2013.

Case studies of Counsel Assisting

For 86 of the 973 people identified, Counsel Assisting, having regard to the evidence and materials before the Commission, were able to draw a more specific nexus between a case or cases in which those people were convicted or found guilty, and Ms Gobbo’s representation of them, to support the conclusion that their cases may have been affected by Ms Gobbo’s conduct.

As noted earlier in this chapter, it is not only Ms Gobbo’s clients whose cases may have been affected by her conduct. The Commission discovered that her informing as a lawyer may have resulted in improperly or illegally obtained evidence tainting a further 38 individuals’ cases in which she was not involved as a lawyer.

Counsel Assisting then assembled individual case studies demonstrating how the convictions and findings of guilt of these 124 people (86 represented by Ms Gobbo, 38 in related proceedings) may have been affected by Ms Gobbo’s conduct (collectively, the Group 2 cases).¹⁷

The Commission explored the methodology used by Counsel Assisting to determine the number of cases affected and largely agrees with their conclusions. Having regard to the underlying facts, the Commission has occasionally reached a slightly different view as to how some of these cases may have been affected by Ms Gobbo’s conduct— that is, as to which of the categories of conduct 1A/B, 2A/B, 3A/B and 4A/B applied to these cases.

Table 7.3 sets out the number of people with case studies who fit into each category. It also demonstrates how the conclusions of the Commission differ from the conclusions of Counsel Assisting in some minor respects. In particular, it shows that the Commission identified additional instances where category 1B, 2B, 3B and 4B applied. Note that the same person may fall into multiple categories.

Table 7.3: Difference between Counsel Assisting’s findings and the Commission’s findings relating to categories of conduct

People represented by Ms Gobbo who were not the subject of case studies by Counsel Assisting

As indicated in Figure 7.1 above, only 86 of these 973 identified people with convictions or findings of guilt for whom Ms Gobbo acted in the relevant period were the subject of their own case study in Counsel Assisting submissions (Group 2 cases). Therefore, it is necessary to explain why the cases of the remaining 887 people may have been affected (Group 1 cases).

The decision of the Court of Appeal of the Supreme Court of Queensland in R v Szabo¹⁸ is helpful. In that case, the Court set aside a conviction and ordered a re-trial, accepting that there had been a miscarriage of justice, even though the prosecution case was strong and the defence barrister had competently represented his client. This was because the defence barrister had not disclosed to his client that he had been in an intimate relationship with the prosecutor, and there was a reasonable possibility of the relationship being renewed (as it in fact was, a few months after the trial). Mr Szabo gave evidence that, had he known of the relationship, he would have been concerned about his barrister’s ability to defend him professionally and would have sought a different barrister.

The Court of Appeal noted that barristers play a vital role in the administration of justice, providing fearless independent representation of their clients. A fair-minded, informed observer knowing those facts would, the Court concluded, have a reasonable suspicion as to whether the defence barrister had acted with the necessary independence.¹⁹ The defence barrister, by not disclosing to his client his intimate relationship with the prosecutor, had brought about a miscarriage of justice.

As Counsel Assisting rightly pointed out, a court could conclude by analogy that an observer, knowing Ms Gobbo was a human source and had not disclosed this to her client, might reasonably suspect that she could not and did not provide that client with the fearless and independent representation to which they were entitled. On that basis, a court may well conclude that there had been a substantial miscarriage of justice.

Counsel Assisting submitted:

… it is highly unlikely that an accused person would sensibly maintain such representation with the knowledge of a possible or actual open and active channel of communication between their legal representation and the police, regardless of the nature of the charge or stage of the proceeding. This is especially so in the criminal context in which these cases arise, where the liberty of the subject is at stake.

Accordingly, in circumstances where the legal representative for an accused person is a registered or ostensible human source for police, a perceived collusion … would occur, revealing a ‘seriously unfair contest’, which invariably undermines public confidence in the administration of justice.

… the above effect on public confidence in the administration of justice:

• arises whether or not Ms Gobbo in fact passed on any information about the client or the case or otherwise assisted (or attempted to assist) the prosecution; and
• could, depending on the circumstances, constitute a substantial miscarriage of justice sufficient to require any conviction to be set aside …²⁰

As pointed out in some responsive submissions, Szabohas not been relevantly considered by the Court of Appeal of the Supreme Court of Victoria or by the High Court.²¹ These courts may well take a different view of the applicable legal principles and dismiss an appeal brought solely on this basis. Nonetheless, the Commission cannot exclude the real possibility that 973 people (that is, the 86 people who were represented by Ms Gobbo and the subject of Counsel Assisting’s specific case studies, and a remaining 887 people represented by Ms Gobbo between 14 May 1998 and 16 August 2013) have cases that were affected, in the sense described in Szabo, by Ms Gobbo’s conduct while acting as their lawyer and as a human source for Victoria Police.

As noted earlier, many of these individuals may not wish to challenge their convictions, given so much time has passed. They may have moved on with their lives, value their privacy, or consider even a successful appeal, by no means a certainty, to be of little practical use to them. Importantly, however, they now know what they should have known when Ms Gobbo was their lawyer. They also know that this Commission considers the legitimacy of their conviction or finding of guilt may be affected by the conduct of Ms Gobbo.

Review of the potentially affected cases

The 1,011 people whom the Commission considers may have been affected by Ms Gobbo’s conduct comprise those in the 124 case studies discussed in Counsel Assisting submissions and summarised in Table 7.3, and a further 887 people who did not know that when Ms Gobbo was providing them with legal representation, she was also providing information to police.

Counsel Assisting submissions about these cases comprise two volumes:

• Volume 2 of their submissions, published by the Commission with necessary redactions, sets out case studies for Mr Thomas (a pseudonym) and Mr Cooper (a pseudonym), whose cases are explored later in this chapter.
• Volume 3 of their submissions sets out an analysis of the remaining 122 people the subject of specific case studies by Counsel Assisting. The Commission applied 37 pseudonyms to the case studies before they were published, for reputational or other reasons. Ten case studies were not published by the Commission for privacy or security reasons.

To ensure procedural fairness, the Commission attempted to provide the 124 case studies to the people concerned before the publication of Counsel Assisting submissions and this final report. Prior to publication, the Commission was able to provide individual case studies to all but 16 of the people concerned, though the cases were redacted to reflect PII claims by Victoria Police. Of these:

• One person did not wish to receive the case study, as he wanted to forget this time in his life.²² The Commission published his case study as part of Counsel Assisting submissions with a pseudonym applied.
• One person was deceased.²³ The Commission published his case study as part of Counsel Assisting submissions.
• 14 people could not be found, despite the Commission’s extensive efforts to locate them:
  • For nine of these people, where it was considered necessary to protect their identity, the Commission published their case studies using pseudonyms.²⁴
  • For three of these people, the Commission did not consider it necessary or appropriate to publish their case studies.
  • For two of these people, the Commission considered it was appropriate to publish their case studies without pseudonyms.²⁵

A list of all the case studies published as part of Counsel Assisting submissions is at Appendix A.

Apart from those people who have made enquiries, the Commission did not directly contact the remaining 887 people to inform them that their convictions or findings of guilt may have been tainted in the broad sense discussed in Szabo. The Commission did, however, provide their names to Victoria Police, which has ongoing obligations of disclosure, as discussed in Chapter 9 and 14 and mentioned earlier in this chapter. The Commission also published a statement on its website inviting those who believed they may be one of these 887 individuals to contact the Commission, and arranged for Corrections Victoria to place notices in Victorian prisons.

That so many convictions—many concerning allegations of violence or homicide, large-scale drug trafficking and organised crime—may have been marred by Ms Gobbo’s conduct is staggering. The following sections of this chapter shed light on how and why this may have occurred, exploring some examples of Ms Gobbo’s conduct in particular cases.

1993 to 1999: Early patterns of conduct

In this section, the Commission outlines Ms Gobbo’s conduct from her first engagement with police from 1993 to 1999.

As discussed in Chapter 1, when the Commission’s Letters Patent were prepared, it was understood that the Commission’s inquiry would be directed at Ms Gobbo’s use as a human source between 2005 and 2009.²⁶ Following its establishment, the Commission received information regarding Victoria Police’s wider use of Ms Gobbo as a human source, including that she had first been registered as a human source in 1995.²⁷

In 1995, Ms Gobbo was a young law student without the professional obligations of a lawyer. It is significant, however, that even then she associated with suspected criminals and was inclined to provide information to police. In 1999, after she was admitted as a legal practitioner, she was registered as a human source for the second time.²⁸

The scale and complexity of Ms Gobbo’s conduct increased over time. Compared with what Counsel Assisting referred to as the ‘industrial scale’ informing that took place following her third registration in 2005, her earlier conduct was certainly more limited.²⁹ This earlier conduct, however, does reveal some emerging patterns that in the following years would become far more entrenched and destructive for her, both personally and professionally, and for the criminal justice system.

Mr Brian Wilson

As outlined in Chapter 6, Ms Gobbo first had contact with Victoria Police in 1993, when she was 20 years old. She was living in Rathdowne Street, Carlton with her then partner, Mr Brian Wilson. Following reports of drug trafficking connected with their address, Victoria Police set up Operation Yak. On 3 September 1993, police executed a search warrant at the property.³⁰ During the search, police found amphetamine and cannabis in Ms Gobbo’s bedroom.³¹ Ms Gobbo told then Sergeant Trevor Ashton that there were drugs hidden behind a vent in the laundry.³² She was charged with use and possession of cannabis and amphetamine,³³ pleaded guilty and received a non-custodial sentence without a conviction. Mr Wilson was charged with trafficking, use and possession of a drug of dependence, and received a suspended sentence.³⁴

Throughout 1994 and 1995, Ms Gobbo maintained contact with Victoria Police.³⁵ On a number of occasions, she met with Mr Ashton, then Constable Tim Argall and then Senior Constable Rodney Arthur, including at the Melbourne Cricket Ground³⁶ where she worked part-time, and in the court precinct in Melbourne’s CBD.³⁷

On 3 April 1995, Victoria Police executed a further search warrant at the Rathdowne Street address, and as a result, Mr Wilson, but not Ms Gobbo, was ultimately convicted of further drug offences.³⁸ In July 1995, Mr Ashton and Mr Argall registered Ms Gobbo as a human source, evidently because of information she had provided against Mr Wilson.³⁹ She subsequently met with officers of the Victoria Police Special Response Squad and continued to provide information about Mr Wilson in the latter half of 1995.⁴⁰

Evidence before the Commission pointed to the perspectives of Ms Gobbo and Victoria Police officers during this period. For example, then Sergeant Michael Holding, who was present during the execution of the first search warrant and interviewed Ms Gobbo, recalled that she was ‘very confident and opinionated’, and, in his view, she ‘thought the process was like a game’.⁴¹ In registering Ms Gobbo as a human source in 1995, Mr Ashton and Mr Argall recorded that she was ‘quite reliable and seeking a career as a solicitor’.⁴² By February 1996, Victoria Police had launched Operation Scorn, concerning other criminal allegations against Mr Wilson. That operation was cancelled in March 1996. In a report explaining its cancellation, then Detective Senior Sergeant Jack Blayney noted that Ms Gobbo was ‘making arrangements and not liaising—loose cannon’.⁴³ It seems that even in these early days, Victoria Police recognised both Ms Gobbo’s distinctive potential as a useful human source and her problematic personal traits.

Ms Gobbo’s claimed recollection of these events offered further insights. She was admitted to the legal profession in April 1997.⁴⁴ As part of her application for admission, she was required to set out in an affidavit (a sworn or affirmed statement) any previous misconduct to be considered by the Board of Examiners. The affidavit Ms Gobbo swore on 4 February 1997 was misleading in some respects. For instance, she described Mr Wilson as a ‘friend’ who had offered to move into the Rathdowne Street property to assist her with the mortgage, when in fact they were then co-owners of the property and intimate partners.⁴⁵ She described being ‘embarrassed’ and ‘shocked’ at the illicit drugs being found during the execution of the first search warrant, when in fact she was clearly aware of them, even directing police to them.⁴⁶ She described using cannabis recreationally on two occasions, not mentioning her use of amphetamine.⁴⁷ Finally, she implied that she was guilty of possession and use of the drugs found at her home only by virtue of the ‘deeming provisions’ of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (that is, because she owned the house where they were found and because of the amounts found, the Act ‘deemed’ her responsible) rather than because she was personally in possession and control of the drugs, knew of their location, and had pleaded guilty to using and possessing them.⁴⁸ In her evidence and submissions to the Commission, Ms Gobbo accepted that her affidavit was misleading, but denied that she intended to mislead.⁴⁹ Her position is set out in more detail below.

The Commission made contact with Mr Wilson, who now lives outside Australia, but he ultimately declined to provide a statement or give an account of these events to the Commission.

Ms Gobbo’s ongoing contact with state and federal police

Ms Gobbo’s relationship with Victoria Police continued after her admission to the legal profession. By November 1997, she was working with Law Firm 1 (a pseudonym). The firm acted for at least three of 10 people charged as a result of a Victoria Police Drug Squad investigation during this period, and Ms Gobbo acted for two of these people.⁵⁰

Between December 1997 and July 1998, Ms Gobbo had a number of meetings with the informant (the police officer giving evidence in relation to these charges), Officer Kruger (a pseudonym).⁵¹ At some point she told him that a partner of Law Firm 1, Solicitor 1 (a pseudonym), was engaging in fraudulent activity.⁵² In July 1998, she met with Mr Kruger and then Detective Senior Constable Christopher Lim, another Drug Squad officer, to explain these allegations. Among other matters, she suggested police investigate Solicitor 1’s shareholdings and properties, and Law Firm 1’s trust account; gave details of alleged money laundering at Law Firm 1; and suggested Solicitor 1 was funding a client’s defence because that client was ‘important to him’.⁵³

The Commission was told that Ms Gobbo had indicated that she was holding drugs for that client.⁵⁴ The Commission was also told that after the meeting, some held the view that it was not appropriate for Ms Gobbo to be used as a human source as she was assessed as being too ‘overt’ in her desire to provide information to police. It was noted that she was a solicitor, and someone who was known to have inappropriate relationships with police.⁵⁵

During the same period, Ms Gobbo sought meetings with AFP agents. On 13 May 1998, she contacted the AFP in Melbourne asking about their ‘recruiting details’.⁵⁶ She had previously interacted with AFP agents through Operation Virus, an investigation into alleged tax evasion by Mr Horty Mokbel, for whom Law Firm 1 acted.⁵⁷ The next day, she met with two agents. Though the AFP advised the Commission that Ms Gobbo did not provide any substantial information at this meeting, she did allude to information that she couldprovide, and expressed concerns about protecting her identity in official records.⁵⁸ The AFP agents considered Ms Gobbo to be untrustworthy and suspected that she was trying to elicit information from them.⁵⁹ As noted, 14 May 1998 is a significant date in calculating the number of cases potentially affected by Ms Gobbo’s conduct as a human source: it is the first occasion the Commission has identified after her admission to legal practice when she offered to act as a human source.

On 30 June 1998, Ms Gobbo met with two other AFP agents whom she knew through Operation Phlange, an AFP investigation into Law Firm 1’s alleged money laundering. The meeting came about because she approached the two agents, suggesting that she may have information of interest.⁶⁰ Another meeting appears to have taken place on 7 July 1998. On Ms Gobbo’s evidence, several more meetings took place, though the AFP was able to confirm only the two meetings. These meetings seem to have related chiefly to Ms Gobbo’s allegations against Solicitor 1.⁶¹

Eventually, Ms Gobbo’s attempts to establish a relationship with police based on her information about Solicitor 1 appeared to succeed. On 13 May 1999, after meetings within the Victoria Police Asset Recovery Squad, then Victoria Police Detective Senior Constable Jeffrey (Jeff) Pope applied to register Ms Gobbo as a human source. On 26 May 1999, the application was approved.⁶² Ms Gobbo continued to meet with police after this (her second) registration.⁶³ Ultimately, her allegations against Solicitor 1 did not result in any charges, and she was deregistered as a human source in 2000.⁶⁴

Emerging tendencies

Patterns of behaviour are discernible even at this early stage of Ms Gobbo’s involvement with police. She was willing to inform to law enforcement authorities about those who trusted her: her personal partner, her employer and her clients. Her motivation was in part self-protective. It was clearly in her interests to assist police with their investigation into Mr Wilson so that she would be dealt with leniently; and if her belief in Solicitor 1’s unlawful or unethical conduct is taken at face value, coming forward with information about this matter may have ensured she was not implicated in any charges.

Yet police officers from this period noticed that Ms Gobbo was not just willing to assist, but conspicuously eager to do so. Indeed, she appeared ‘overt’ and ‘confident’ in her disclosures. She did more than simply respond to police inquiries; she cultivated or engineered opportunities to meet with and communicate information to police. She seemed to relish her social contact with them. She sought to do more than neutrally communicate information, often enthusiastically and proactively suggesting areas and people to investigate.

Ms Gobbo appeared to display a flippant disregard for her professional responsibilities when gaining admission to legal practice in 1997, by downplaying her past offending. In her first years of practice, she provided information to police about her client, and made accusations against her employer (who as stated above was never charged). The provision of information to police about her client may have represented a breach of legal professional privilege, her duty of confidentiality and her duty to the court. Those duties, owed by a lawyer to their clients, are discussed more fully in Chapters 2, 4 and 5. Further, the information Ms Gobbo provided had the potential to be used in prosecuting her own client (occurred in some later instances, discussed below). Her covert relationship with police was also apt to weaken the position of her clients in the eyes of those police who knew of it.

In her evidence to the Commission, Ms Gobbo gave the following account, which, though it related to a later period, shed light on her earlier behaviour:

COUNSEL ASSISTING: You wanted to be a part of it, you wanted to ingratiate yourself with these people, do you accept that?

MS GOBBO: Yeah, I—looking back I wanted to belong, I wanted to be the, the, um, the holder of every bit of information about every drug trafficker up and down the supply chain. Um, and income wise those people were the worst people to, um, work for because they paid their QC[s] and everybody else was left waiting, but it was mostly my, um, pathetic as it sounds, my, um, inability to say no and my, um, my need to be, I guess to be wanted or to be valued or feel valued.

COUNSEL ASSISTING: Right. And you were prepared, those feelings were stronger than your obligations or what you regarded as your obligations, or understood your obligations to the courts and to the people you were representing [to be], those important legal obligations?

MS GOBBO: Well they were obviously compromised.⁶⁵

In a submission to the Commission, Ms Gobbo elaborated on this need to ‘feel valued’ and be ‘the holder of every bit of information’.⁶⁶ For example, she drew attention to the death of her father when she was young, which she felt made her long for the approval of older, especially male figures;⁶⁷ and to her ‘Type A’ personality,⁶⁸ which drove her to want to be the best human source she could be.⁶⁹

Ms Gobbo contested some of the inferences that the Commission has drawn above. For example, she accepted in evidence before the Commission that her affidavit to the Board of Examiners when gaining admission to legal practice ‘wasn’t … the full story’, and that in hindsight, it was misleading in some respects.⁷⁰ She maintained in submissions to the Commission, however, that she did not intend to mislead the Board of Examiners.⁷¹ She pointed to the absence of evidence before the Commission about what she may have said to the Board of Examiners when she appeared before them as part of her application for admission⁷² and to the fact that her focus was on making clear that she was no longer using drugs.⁷³ She claimed she was unable to recall the circumstances in which the affidavit was drafted, and did not personally draft it;⁷⁴ and that she was following the advice of her lawyer at the time in swearing to its contents.⁷⁵ She also said that she was unaware that she was registered as a human source in 1995 and 1999.⁷⁶

The Commission accepts that Ms Gobbo may have been unaware of her registrations as a human source in 1995 and 1999, as other evidence to the Commission established that human sources during this period were not necessarily informed that they were registered. She was, however, aware of the substance of her relationship with police, and the potentially conflicting interests of her colleagues and clients. As to the affidavit, as every prospective lawyer knows, a person who swears or affirms an affidavit attests to the truth of its contents. In isolation, some of the discrepancies in the affidavit might be considered minor. Viewed collectively, in the context of Ms Gobbo’s behaviour during that time, the compelling inference is that the affidavit was deliberately misleading.

The Commission is not persuaded that Ms Gobbo’s upbringing and personality satisfactorily explain or excuse conduct that was intentional and persisted over a number of years. Whatever the motivations, her conduct, even at this early stage, was unethical and apt to undermine the administration of justice. As the case studies that follow demonstrate, these early tendencies—a proactive and energetic interest in informing against her clients and others; a corresponding disregard for her professional and ethical obligations and the interests of her clients; a willingness to deceive her clients, colleagues and others; the pursuit of ill-defined relationships with both police officers and those allegedly involved in criminal conduct—all played a very substantial role in Ms Gobbo’s potentially adverse effect on a large number of cases. That is so regardless of the traits or circumstances that might have engendered them.

Ms Gobbo could not inform on her clients without the assistance of the Victoria Police officers to whom she informed. During this period, they too displayed negative patterns of conduct that would continue in the future. There was an ambivalence: a vacillation between on the one hand, recognising the dangers of using Ms Gobbo as a human source (given that she was a young female lawyer exhibiting unusual behaviours), and on the other hand recognising the novelty of the situation and the potential value of what she offered. Not only was she ‘seeking a career as a solicitor’; her uncle, Sir James Gobbo, AC, CVO, QC, was a respected judge of the Supreme Court of Victoria from 1978 to 1994, and later served as Governor of Victoria. That connection was not lost on Victoria Police—for example, Mr Arthur recalled that, around the time of their meetings with Ms Gobbo in 1994 and 1995, Mr Ashton mentioned that Ms Gobbo’s ‘father’ was a judge.⁷⁷ It is reasonable to suppose that the notion that Ms Gobbo was connected to the legal establishment made her a unique and compelling contact for Victoria Police.

Although some state and federal police officers in this early period held concerns about using Ms Gobbo as a human source, this did not stop other Victoria Police officers from doing so at this stage or in the years that followed.

2002 to 2009: Ms Gobbo’s involvement with the Purana Taskforce and beyond

In this section, the Commission outlines Ms Gobbo’s conduct and her engagement with police from 2002 to 2009. It focuses on seven case studies that exemplify how cases may have been affected by Victoria Police’s use of Ms Gobbo as a human source over this period:

• Mr McGrath (a pseudonym)
• Mr Thomas (a pseudonym)
• Mr Faruk Orman
• Mr Cooper (a pseudonym)
• Mr Zlate Cvetanovski
• Mr Antonios (Tony) Mokbel
• the ‘Tomato Tins’ drug-trafficking syndicate cases.

It is necessary to first set out some of the factual context for these case studies.

Murders of Mr Jason Moran, Mr Pasquale Barbaro and Mr Michael Marshall

In 2003, Victoria Police established the Purana Taskforce as a response to the so-called ‘gangland wars’— a sustained period of violence, including murders, associated with rival organised crime groups in Melbourne. Purana Taskforce’s core function was to target and disable these criminal groups and their drug-trafficking activities.⁷⁸ As public concern about gangland violence grew, so did pressure on Victoria Police. The taskforce became a well-resourced and critically important aspect of Victoria Police operations.⁷⁹

Mr Jason Moran and Mr Pasquale Barbaro were murdered on 21 June 2003 (Moran/Barbaro murders). Their murders—occurring as they did in public, and in the presence of children following an Auskick football clinic—galvanised public concerns about, and Victoria Police’s resolve to deal with, the gangland wars.⁸⁰ Victoria Police alleged that Mr Moran and Mr Barbaro were murdered by Mr Andrews (a pseudonym) and Mr McGrath, who were recruited and directed by Mr Carl Williams, with the assistance of Mr Thomas.⁸¹

On 25 October 2003, Mr Michael Marshall was also murdered (Marshall murder). The police case was that Mr Williams had directed this murder too, and that it was carried out by Mr Andrews and Mr McGrath.⁸² As it happened, police were conducting surveillance on Mr Andrews and Mr McGrath in relation to another investigation. The police listening device that had been installed in their car recorded the murder taking place. As a result, Mr Andrews and Mr McGrath were in custody by the end of the day, with an overwhelming police case against them.⁸³

By this time, Ms Gobbo had developed professional as well as personal and social relationships with prominent organised crime figures in Melbourne, including members of the Williams and Mokbel families. Her handwritten diaries, which the Commission obtained, showed that she regularly socialised with the Mokbel family. For example, she attended birthday celebrations for Mr Tony Mokbel and Mr Horty Mokbel,⁸⁴ and her diary recorded multiple occasions in January 2003 alone when she dined with Mr Tony Mokbel, Mr Horty Mokbel and Mr Milad Mokbel.⁸⁵ She also socialised regularly with members of the Williams family, having met Mr Williams through Mr Tony Mokbel.⁸⁶ She appeared for Mr Williams in 2003 and 2004, and for his father, Mr George Williams, in 2005.⁸⁷

Through these connections, Ms Gobbo was uniquely familiar with the people alleged to have been involved in the Moran/Barbaro and Marshall murders. For instance, she met Mr Thomas, who became a key prosecution witness, through the Mokbel family in 2001⁸⁸ and first acted for him in a bail application the following year.⁸⁹ Characteristically, it appears that Ms Gobbo’s relationship with Mr Thomas was also a social one. Her diary recorded a lunch together, and listed the birthdays of his family members.⁹⁰ In his statement to the Commission, Mr Thomas said that he would have dinner with Ms Gobbo once or twice a week.⁹¹

The Purana Taskforce hoped to persuade associates of criminal networks who were arrested and charged with serious offences to provide information or evidence about their activities or against their associates, in exchange for prosecution support for a reduced sentence.⁹² Such a strategy carries inherent risks, not least of which is ensuring that the information or evidence obtained is reliable and can be used in criminal proceedings. Those risks were compounded when the Purana Taskforce subsequently used Ms Gobbo as a means to pursue this strategy.

Case study: Ms Gobbo’s representation of Mr McGrath (a pseudonym)

Victoria Police’s case against Mr McGrath was that he participated in the Moran/Barbaro and Marshall murders at the behest of Mr Williams.⁹³ As to the Marshall murder, Victoria Police alleged that Mr McGrath drove Mr Andrews—who carried out the killing—to and from Mr Marshall’s house.⁹⁴

Soon after being taken into custody on 25 October 2003, and in light of the overwhelming evidence against him, Mr McGrath expressed to police his potential willingness to provide information about the murder.⁹⁵

Ms Gobbo first represented Mr McGrath in November 2003, when police applied to question him in relation to the Moran/Barbaro murders.⁹⁶ He subsequently provided information implicating Mr Williams, Mr Andrews and others in the Moran/Barbaro and Marshall murders.⁹⁷

Victoria Police wanted more and better information, which Mr McGrath was reluctant to provide unless he was protected from prosecution for the Marshall murder. Ms Gobbo directly assisted Victoria Police to secure Mr McGrath’s ultimate cooperation. She met with him on numerous occasions to advise him of the police position. She kept Victoria Police informed of his evolving attitude towards assisting them and when he eventually agreed to make statements against his co-offenders, she helped to finalise them.

From stalemate to cooperation

On 7 December 2003, Ms Gobbo informed Mr McGrath that Victoria Police had advised that they may offer him a ‘deal’ by way of a more lenient sentence if he gave information about others involved in his criminal activities.⁹⁸ At a committal hearing for Mr Andrews and Mr McGrath the following March, Ms Gobbo discussed Mr McGrath’s continued police cooperation with then Detective Sergeant Stuart Bateson from the Purana Taskforce. Mr Bateson advised that Mr McGrath should compile a ‘can say’ statement for the prosecutors (an unsigned statement outlining evidence he would be able to give). Ms Gobbo assured Mr Bateson that she would discuss this with Mr McGrath.⁹⁹ At a meeting with prosecutors three days later, Mr Bateson reported that Ms Gobbo was speaking to Mr McGrath, who was considering his position.¹⁰⁰

On 5 April 2004, Mr Bateson met with Mr McGrath and then spoke with Ms Gobbo about Mr McGrath providing a ‘can say’ statement. Her court book (legal notebook) recorded:

Need details otherwise no use; needs to become a valuable witness; spoken to bosses who have spoken to [the DPP]; … full disclosure re Marshall’s murder and Jason [Moran]’s murder; no direct knowledge re any other murders.¹⁰¹

The following day, Ms Gobbo conveyed Mr Bateson’s position to Mr McGrath. They discussed the further information Mr McGrath could provide, and his reluctance to do so without an indemnity for the Marshall murder.¹⁰² Ms Gobbo’s diary also noted a further meeting on 20 May 2004, where Mr McGrath said that he had ‘no choice’ without a complete indemnity. The diary also notes what may have been her advice: ‘need to make a decision to stop or move forward’.¹⁰³

In June 2004, Mr Williams was arrested, charged and remanded in relation to alleged offending not involving the murders of Mr Marshall, Mr Barbaro and Mr Moran.¹⁰⁴ In evidence before the Commission, Mr Bateson said that this finally triggered Mr McGrath’s cooperation with Victoria Police, as he felt safer with Mr Williams now in custody.¹⁰⁵ In any event, Mr McGrath ultimately decided to provide further assistance to Victoria Police and between 22 and 30 June 2004, gave numerous police statements about the Moran/Barbaro and Marshall murders, and the murder of Mr Mark Moran on 15 June 2000.¹⁰⁶

Finalising Mr McGrath’s statements

Purana Taskforce still considered aspects of Mr McGrath’s statements unsatisfactory. For example, Mr McGrath initially maintained in his instructions to Ms Gobbo and in early drafts of his statements that he only came to understand shortly before the Marshall murder that he and Mr Andrews were being sent to kill him and that he had believed they were collecting a debt. This was a significant point, since the police case was that Mr Williams had engaged Mr McGrath and Mr Andrews to carry out the killing. If that were so, Mr McGrath would have known why he was going to Mr Marshall’s house.¹⁰⁷ For Mr McGrath to claim he did not know of the killing beforehand was also self-serving and tended to undermine his credibility.

Mr Bateson recalled in evidence before the Commission that Ms Gobbo had doubts about the truthfulness of this aspect of Mr McGrath’s initial statements.¹⁰⁸ These doubts were made known to other police officers. For example, at a meeting of the Purana Taskforce on 12 July 2004, then Detective Superintendent Terry Purton recorded the following, with ‘NG’ clearly referring to Ms Gobbo: ‘[Statements] shown to Gobbo—1 thing to change—didn’t know it’s going to be a murder—NG that’s ridiculous’.¹⁰⁹ Following a meeting between Mr McGrath and Mr Bateson on 11 July 2004, Ms Gobbo contacted Mr Bateson, whose day book (police notebook) records the phrase: ‘will be truthful’;¹¹⁰ Mr Bateson was apparently going to write ‘more forthcoming’ but changed his mind.¹¹¹

In his evidence to the Commission, Mr Bateson accepted Counsel Assisting’s suggestion that the note referred to Ms Gobbo ‘saying … that she’s spoken to [Mr McGrath] and, if you come and see him now he’ll be more truthful’.¹¹² Having been advised of Mr McGrath’s preparedness to be more truthful, Victoria Police subsequently met with him to revise his statements.¹¹³ In a submission, Mr Bateson said this was not unusual; that it is common for defence lawyers to advise their clients, who have become prosecution witnesses, to be honest in their witness statements so that they receive the largest possible sentencing discount.¹¹⁴

Ms Gobbo had even more direct involvement in finalising Mr McGrath’s statements. Police officers took statements from Mr McGrath in late June 2004 and returned to him in July 2004 with written drafts.¹¹⁵ He indicated that he would not sign them unless they had been reviewed by Ms Gobbo.¹¹⁶ Then Detective Senior Constable Mark Hatt visited Ms Gobbo in her chambers on 10 July 2004 with copies of Mr McGrath’s statements.¹¹⁷ She suggested various revisions and contacted Mr Bateson and another officer expressing doubts about Mr McGrath’s account of his prior knowledge of the Marshall murder. She then reviewed and approved Mr McGrath’s statements on 12 July 2004.¹¹⁸

Ultimately, Mr McGrath signed finalised versions of the statements on 13 July 2004.¹¹⁹ Notably, his statement about the Marshall murder indicated for the first time that he knew beforehand that he was going to Mr Marshall’s home to kill him, consistent with the police handlers case that Mr Williams was the instigator of the murders.

The significance of Mr McGrath’s cooperation and Ms Gobbo’s role

Mr McGrath’s statements were significant, as he was the first witness targeted by the Purana Taskforce to provide evidence against a major gangland figure. Mr McGrath’s evidence was valuable to investigating and prosecuting others involved in the Moran/Barbaro and Marshall murders, some of whom were also represented by Ms Gobbo at the very time she was assisting her client Mr McGrath, and Victoria Police, in finalising his statements against them.¹²⁰ This is discussed further below.

Ms Gobbo would later describe Mr McGrath as the ‘crack in the [dam] … wall of silence that led to a flood’.¹²¹ As events transpired, her characterisation appeared largely accurate and certainly indicated her understanding of the significance of her conduct in encouraging him to ‘roll’— that is, to give evidence against his criminal associates in exchange for a reduced sentence. So too do transcripts of her conversations with her handlers in 2005, when she was again registered as a human source. Recalling her role in the preparation of Mr McGrath’s statements, she told one of her police handlers, Officer Sandy White (a pseudonym):

And, God, that was a horrendous time ’cause Carl [Williams] and George [Williams] were on my back with Tony [Mokbel] saying, you know, ‘Make sure [Mr McGrath] doesn’t roll, make sure he doesn’t roll.’ And of course, as history shows, I did exactly the opposite which is why I have so much to fear about that all being found out ’cause if police diary notes actually get revealed … one of the things it will show is that they came to my office—and I saw the statements before they got signed—I altered the statements …¹²²

In evidence before the Commission, some Victoria Police officers challenged the notion that Ms Gobbo played a crucial role in persuading Mr McGrath to cooperate. Mr Hatt considered that Mr McGrath was always willing to cooperate, as ‘the evidence against him was overwhelming at that stage’.¹²³ Mr Bateson likewise considered that the evidence against Mr McGrath and the circumstances of his arrest made it inevitable that he would roll.¹²⁴ He also considered the arrest of Mr Williams to be a decisive factor in Mr McGrath’s decision to cooperate.¹²⁵

Various submissions to the Commission also challenged the notion that Ms Gobbo’s role in working with Victoria Police to finalise Mr McGrath’s statements was improper. For example, Mr Bateson contended that Ms Gobbo simply did what any lawyer would have done: identified the issues in the statements; advised Mr McGrath to be honest; and took instructions. He denied that Ms Gobbo marked up the documents or directed police to make changes.¹²⁶ More broadly, it was suggested that it was commonplace for lawyers in Ms Gobbo’s position to speak frankly with police about their clients, including as to any doubts they had regarding their client’s version of events. Further, it was suggested that it was in Mr McGrath’s interests that his statements be made more plausible, to ensure that he could negotiate the best possible plea deal with police.¹²⁷

It suffices to say that Ms Gobbo’s conduct seemed in large part motivated by her desire to work with police. It was not unequivocally geared towards advancing Mr McGrath’s interests by providing independent legal advice. She made revisions to Mr McGrath’s evidence, in the presence of police, without taking instructions from Mr McGrath. If such behaviour was commonplace among lawyers at that time, it should not have been.

The real vice, however, is that her role was concealed. For example, Mr McGrath had maintained, consistently and until the day before signing his statements, that he did not know ahead of the killing that he was going to Mr Marshall’s home to kill him rather than to collect a drug debt.¹²⁸ Advised by Ms Gobbo, he then changed his account which strengthened the police case. The changes, wrought at Ms Gobbo’s behest to improve his credibility and better his prospects of a more lenient sentence, were potentially relevant to Mr McGrath’s truthfulness and reliability as a witness.

Had Ms Gobbo’s full role in working with Mr McGrath to finalise his statements been disclosed to those people he incriminated, this may have significantly and favourably changed their legal position. In going on to act for those incriminated by Mr McGrath, the fact that Ms Gobbo’s role in assisting Mr McGrath was concealed, including from Mr Thomas, meant that she was hopelessly conflicted and unable to give and be seen to give them independent legal advice.

Case study: Ms Gobbo’s representation of Mr Thomas (a pseudonym)

The Victoria Police case against Mr Thomas was that he was involved in the Moran/Barbaro murders, including by providing weapons, information and an alibi for Mr Williams.¹²⁹ It relied substantially on Mr McGrath’s evidence.¹³⁰ Mr Thomas, like Mr McGrath, ultimately agreed to cooperate with police, providing information about and evidence against his criminal associates.¹³¹

Ms Gobbo acted for and advised Mr Thomas at various times between 2002¹³² and 2008,¹³³ including in bail and pre-trial proceedings in connection with the Moran/Barbaro murders.¹³⁴ She accompanied him as his lawyer to meetings and negotiations with Victoria Police about what he might tell them and what he might receive in exchange. She also provided him with legal advice during periods where other lawyers were acting for him in court proceedings.¹³⁵ She regularly met and spoke with him over this time, sometimes as a lawyer and sometimes socially.¹³⁶ Mr Thomas stated in evidence to the Commission that he ‘trusted Gobbo completely’.¹³⁷

Problems at the outset

Once Ms Gobbo had worked with Mr McGrath to provide statements incriminating his alleged co-offenders, including Mr Thomas, her continued legal representation of Mr Thomas became deeply problematic.¹³⁸ It should have been clear to Ms Gobbo that Mr McGrath’s and Mr Thomas’ interests were so incompatible that her representation of them both generated a serious conflict of interest. That alone should have prevented her from acting for Mr Thomas after he was charged with the Moran/Barbaro murders.

On 28 July 2004, just over two weeks after Mr McGrath’s statements were finalised, and prompted by the content of these statements, Victoria Police approached Mr Thomas to encourage him to cooperate.¹³⁹ On 16 August 2004, police arrested him and charged him with the Moran/Barbaro murders, relying on Mr McGrath’s statements.¹⁴⁰ After his arrest, Mr Thomas asked to speak with Ms Gobbo. Police facilitated his request. Ms Gobbo acted as his lawyer after his first police interview and subsequently.¹⁴¹

Given that she was involved in the making of Mr McGrath’s statements, it was unethical for Ms Gobbo to then act for Mr Thomas. But that did not stop her from consistently downplaying the magnitude of her conflict of interest.

In 2017, in her evidence to the Supreme Court proceedings in AB & EF v CD, Ms Gobbo said that she ‘wasn’t part of [Mr McGrath’s] statement-making process’ and ‘didn’t know what the content of his statements was’.¹⁴² Asked about this before the Commission, Ms Gobbo maintained that she ‘didn’t make the statements with’ Mr McGrath and ‘hadn’t ‘read them before he signed them’.¹⁴³

It is true, as various Victoria Police officers and Ms Gobbo submitted, that there is no evidence from Mr McGrath or Mr Thomas as to whether either or both of them consented to her acting for the other.¹⁴⁴ It is possible that once Mr McGrath gave his statements to Victoria Police, he did not care whether she then acted for Mr Thomas. It is also possible that Mr Thomas wanted to know what Mr McGrath was up to and was therefore happy for Ms Gobbo to act for them both to achieve that end. Even accepting these possibilities—and the fact, emphasised by Mr Bateson¹⁴⁵ and Ms Gobbo,¹⁴⁶ that at this time many Victorian criminal lawyers, including senior barristers, may have had ‘rubbery’ views as to conflicts of interest when it came to high fee-paying clients—Ms Gobbo was walking an ethical tightrope.

Ms Gobbo was involved in the making of Mr McGrath’s statements and must have understood their importance to Victoria Police’s case against Mr Thomas. She had numerous discussions with both police and Mr McGrath about the information he would include in his statements. She said she made corrections and comments on draft versions and facilitated amendments to increase the forensic value of the statements to police. The DPP commenced proceedings against Mr Thomas by a process called ‘direct presentment’. The effect of that process was to deprive him and his co-accused of the ordinary step of a committal hearing in the Magistrates’ Court. Ms Gobbo successfully acted for him to ensure that a committal hearing did take place. Doing so required her to understand the evidence against Mr Thomas, including that of Mr McGrath.¹⁴⁷

As an experienced criminal lawyer, Ms Gobbo must have been aware of the conflict inherent in her representation of both Mr Thomas and Mr McGrath. If further support for that conclusion is needed, in conversations with the Victoria Police Source Development Unit (SDU) in September 2005, she spoke about her direct role in editing Mr McGrath’s statements and her fear that this information may become public.¹⁴⁸ She repeated this in meetings with the SDU in April 2006¹⁴⁹ and May 2007,¹⁵⁰ with then Detective Senior Sergeant Shane O’Connell in February 2009,¹⁵¹ and with then Detective Senior Sergeant Boris Buick in September 2011.¹⁵² She also emphasised the significance of her role in persuading Mr McGrath to roll when later seeking a reward from Victoria Police for her work as a human source.¹⁵³

Ms Gobbo’s attempts to downplay this conflict, including before this Commission, by contending that she at all times acted in the best interests of both clients,¹⁵⁴ are unpersuasive. She knew that Mr McGrath implicated Mr Thomas in his statements, which she helped to create. Even if they had both consented to her acting for them as Mr Bateson and Victoria Police suggest, it is unlikely that Mr Thomas did so in full knowledge of her clandestine role in assisting with Mr McGrath’s statements. In any case, as discussed below, she failed in her duty as an officer of the court to ensure the court and other defence counsel were informed of her active role in working with Mr McGrath to improve his evidence.

The impacts of Ms Gobbo’s conflicting interests

Ms Gobbo’s conflicted position worsened as Mr Thomas’ case progressed. From 17 to 27 September 2004, she appeared for him at hearings in the Supreme Court arising from applications for disclosure.¹⁵⁵ Mr Peter Faris, QC represented Mr Thomas’ co-accused, Mr Williams (who had by this time been charged in relation to the Moran/Barbaro murders).¹⁵⁶ Mr Faris questioned Mr Bateson to establish if there were earlier drafts of Mr McGrath’s statements or other documents relating to his decision to cooperate with police. Mr Bateson denied that there were any.¹⁵⁷ Ms Gobbo, knowing the true position, did not cross-examine Mr Bateson.¹⁵⁸

Ms Gobbo’s self-serving decision not to cross-examine Mr Bateson at the disclosure hearings was no doubt unsurprising to Mr Bateson or to others who now know her duplicitous character. It demonstrated that her ability to represent Mr Thomas’ interests was irreparably compromised, given her earlier representation of Mr McGrath. Her cooperation with Mr Bateson, in ensuring Mr Faris did not get the information he was seeking and to which he was entitled, had an adverse impact—not just on the defences of Mr Thomas and Mr Williams, but also on the capacity of Mr Faris and the Court to perform their functions in the administration of justice.

Mr Colin Lovitt, QC, not Ms Gobbo, appeared for Mr Thomas at his subsequent committal hearing, although he retained Ms Gobbo to write a detailed memorandum to assist Mr Lovitt.¹⁵⁹ She stated in that memorandum that it was inappropriate for her to appear at the committal proceeding because she had previously acted for Mr McGrath but she would continue to maintain a brief (act for Mr Thomas).¹⁶⁰ She did not disclose, however, that she had secured Mr McGrath’s cooperation and worked with him to change his account to make it more plausible. Even if she felt she could not disclose these details in her capacity as a lawyer, she should have immediately ceased acting for Mr Thomas. Further, Mr Lovitt was equipped only with the limited and redacted notes provided by Victoria Police at the disclosure hearings, which did not refer to Ms Gobbo’s role in the development of Mr McGrath’s statements to bolster the police case.¹⁶¹

Just as she was conflicted from appearing for Mr Thomas at his committal, she was equally conflicted from giving him (through Mr Lovitt) legal advice about the committal. Her failure to fully disclose in that advice key information helpful to Mr Thomas’ defence clearly shows that she did not give him the independent informed advice he should have received. As a result, Mr Lovitt cross-examined Mr McGrath on behalf of Mr Thomas over five days, but without knowing this critical information.¹⁶²

When asked at the committal whether there were any drafts of Mr McGrath’s statements prior to the one he signed on 13 July 2004, Mr Bateson responded, ‘The only draft is, or the only difference that we have recorded is the addresses that we have deleted out of the statements’.¹⁶³

Mr Bateson’s conduct in relation to these events is the subject of further discussion in Chapter 8. It was not for Victoria Police officers to unilaterally decide, on the basis of safety or other concerns, whether, and to what extent, they should comply with obligations to disclose relevant documents or truthfully and fully answer questions in court.

As Counsel Assisting submitted, this episode was the foundation stone for future cover-ups—not just of Ms Gobbo’s identity but of what she did while ostensibly acting as a lawyer.¹⁶⁴ For her part, Ms Gobbo ought to have understood her obligations as a barrister to avoid conflicts of interest.

In submissions to the Commission, Ms Gobbo contended that, at least at that time, there was a culture of disregarding, or taking a relaxed approach to such obligations;¹⁶⁵ and that others, including Mr Lovitt, were aware of her conflict and did not intervene.¹⁶⁶ Even if Ms Gobbo’s conduct was endorsed or tolerated, or was symptomatic of wider practices at the time, that does not excuse it. Ms Gobbo was responsible for maintaining ethical and professional standards in her own practice. She should have known that the appropriate response to a conflict of this magnitude was to cease acting for Mr Thomas—not simply to cease appearing for him in court. Further, even if Mr Lovitt knew or suspected that Ms Gobbo was conflicted in representing Mr Thomas, there is no evidence to suggest that he understood the extent of her involvement in drafting Mr McGrath’s statements, let alone the extent of her relationship with Victoria Police.

The Source Development Unit

Ms Gobbo’s activities may have taken a heavy toll on her, as on 24 July 2004, aged only 31, she suffered a stroke.¹⁶⁷ While hospitalised, she contacted Mr Bateson and advised him of her condition.¹⁶⁸ Mr White, who was then with the Major Drug Investigation Division (MDID) but was preparing to lead the pilot of the new SDU scheduled to commence in November 2004, gave evidence to the Commission that it was around this time that he first considered recruiting Ms Gobbo as a human source.¹⁶⁹

Previously, most human sources were recruited after they had committed criminal offences and were facing a prison sentence; police then persuaded them to cooperate by appealing to their self-interest in a reduced sentence. The SDU, however, was keen to recruit a different type of human source. Mr White considered that Ms Gobbo, a criminal lawyer who socialised with her clients and police, could meet the SDU’s needs to combat the gangland wars. He also thought that her stroke might make her vulnerable and more susceptible to recruitment.¹⁷⁰ In August 2004, the MDID created a profile on Ms Gobbo.¹⁷¹

Meanwhile, Ms Gobbo’s relationship with Mr Bateson became closer. On 23 March 2005, she phoned to thank him for ensuring that her name was not mentioned during Mr Thomas’ committal hearing.¹⁷² On 19 May 2005, she told Mr Bateson that she had information of interest. They met on 23 May 2005, the first occasion on which she provided him with information of a kind expected from a human source. It concerned Mr Carl Williams, Mr George Williams, Mr Tony Mokbel and Mr Mokbel’s solicitor, Solicitor 2 (a pseudonym).¹⁷³ It was the first of several such meetings between June and August 2005.¹⁷⁴

Ms Gobbo’s third registration as a human source

On 16 September 2005, Ms Gobbo met with the newly formed SDU for the first time. She spoke about her role in cementing Mr McGrath’s cooperation with police and her fear that others, including Mr Carl Williams and Mr Tony Mokbel, would become aware of it.¹⁷⁵ Ms Gobbo stated that she had been in discussions with Mr Bateson and told him that she had ‘made the decision about 12 months ago to assist police’.¹⁷⁶ That comment was consistent with her behaviour in the years and months leading up to September 2005.

The process to register Ms Gobbo as a human source for the third time began after the meeting in September 2005. It did not mark a sudden change in her relationship with Victoria Police. Rather, it was the culmination of relationships with police officers that had been developing for some time, and of a pattern of conduct that stretched back to her law student years. On occasions before her third registration, she had certainly in substance acted as a human source. For that reason, the Commission rejects the contention advanced by Victoria Police and some of its officers in their responsive submissions—that Ms Gobbo’s conduct before her third period of registration as a human source, including in relation to Mr McGrath and Mr Thomas, is of no relevance to the Commission’s inquiry.¹⁷⁷

Almost immediately upon her registration, Ms Gobbo began providing her SDU handlers with information about Mr Thomas and others, including information of a potentially privileged and confidential nature.¹⁷⁸ Over the next nine months, while a registered human source for Victoria Police, she encouraged Mr Thomas, purportedly as his lawyer, to plead guilty and to agree to provide intelligence to police in exchange for a reduced sentence on less serious charges.

Ms Gobbo acts as a ‘go-between’ and an advocate for the Purana Taskforce

In February 2006, after Ms Gobbo told her SDU handlers and Purana Taskforce officer Mr Bateson that Mr Thomas may be willing to plead guilty and give evidence against his co-accused, she organised a meeting with him, Mr Bateson, Mr Hatt and her instructing solicitor, Mr Jim Valos.¹⁷⁹ At the meeting, she told Mr Bateson that Mr Thomas would be willing to talk to police in relation to the Moran/Barbaro murders and several other matters of interest to the Purana Taskforce.¹⁸⁰

From February 2006, Mr Thomas and Purana Taskforce officers had several meetings. At the first on 22 February 2006, Mr Thomas indicated that he was ‘fucked up’ and did not ‘want to do gaol’.¹⁸¹ Then Detective Inspector James (Jim) O’Brien said that if his information proved truthful, police could ‘put the best case we’ve got to the OPP’, who would in turn propose a plea agreement. He could then decide whether to cooperate, including by making statements. Mr Bateson added that he would be expected to cooperate to the fullest extent: ‘You’re fully in or, we’re not interested in half way’.¹⁸²

Further discussions between the Purana Taskforce and Mr Thomas ensued. He was at first extremely hesitant, not least because he feared reprisals against himself and others. Ms Gobbo played an important role in easing his initial reluctance. She kept her handlers informed of his mental state and attitude to assisting them. For example, after the first Purana Taskforce meeting with him, Ms Gobbo told her handler that Mr Thomas needed a push to ‘roll over and assist police’;¹⁸³ that he had asked her to tell Mr Carl Williams that he was going to ‘roll over’; and that he had an agreement with Mr Williams that, in certain circumstances, he was allowed to do so.¹⁸⁴ She advised her handlers that a ‘heavy handed approach to [Thomas] would not work well’,¹⁸⁵ and that he was ‘feeling depressed’.¹⁸⁶ On 19 March 2006, Ms Gobbo informed them of her conference with Mr Thomas in custody the previous day, in which he said that he was ‘99’ per cent ‘likely to make a statement to assist’ the Purana Taskforce.¹⁸⁷ Mr Thomas would have expected his lawyer to be providing confidential advice about his legal options.

Despite Ms Gobbo’s evidence that her conduct was nothing more than what would be expected from a lawyer negotiating a plea agreement,¹⁸⁸ she was clearly representing the interests of the Purana Taskforce rather than providing independent advice in her discussions with Mr Thomas. For example, on 8 March 2006, she told her handlers that she had given him legal advice to the effect that ‘just giving up Carl Williams will not be enough’, and that he would need to tell the Purana Taskforce ‘everything’.¹⁸⁹ For his part, Mr Thomas gave evidence to the Commission that Ms Gobbo, over about two weeks during this period, convinced him to assist police; he said that he was ‘getting nagged by’ her and that she was telling him that there was ‘no way out of it’—that he had to ‘make a statement and do a deal’.¹⁹⁰

At a meeting between Mr Bateson, Mr O’Brien and Mr Thomas on 23 March 2006, Mr Thomas provided information about the Moran/Barbaro and Marshall murders;¹⁹¹ the involvement of the Mokbels, Mr Carl Williams, Mr Cooper and others in the manufacture and trafficking of illicit drugs;¹⁹² the involvement of former police officer Mr Paul Dale with Mr Williams;¹⁹³ and other shootings and homicides.¹⁹⁴ Mr Thomas confirmed that ‘Nicola’s the one who convinced’ him to cooperate.¹⁹⁵

The Purana Taskforce recognised Ms Gobbo’s value in securing its objectives. On 19 April 2006, Mr Bateson and Mr O’Brien met with then Detective Inspector Gavan Ryan. Mr Bateson’s notes record the substance of that meeting: ‘Resolved—Nil further approach from us at this stage. Supply transcripts to 3838 with edits and have her approach [Mr Thomas]’.¹⁹⁶

The Purana Taskforce was now conducting its negotiations with Mr Thomas through Ms Gobbo, who would be given the transcripts of their meetings with Mr Thomas.¹⁹⁷ Again, as some of the responsive submissions point out, this in itself was not necessarily improper or even unusual in police dealings between an accused person and their lawyer.¹⁹⁸ Negotiations like these between police and a lawyer acting for an accused person often result in an outcome that is in the best interests of the accused person. But that outcome cannot be achieved when the lawyer is covertly working as an agent of police rather than solely in the interests of their client. The conduct of current and former police officers in these events is explored more fully in Chapter 8.

Police recognition of Ms Gobbo’s conflict of interest

There was some concern within the Purana Taskforce and the SDU about using Ms Gobbo in negotiations with Mr Thomas. For instance, in February 2006, Ms Gobbo’s SDU handlers told her to minimise contact with him, apparently recognising the risks in view of her previous involvement with Mr McGrath and her ongoing associations with Mr Williams, the Mokbels and others affected by Mr Thomas’ potential cooperation.¹⁹⁹ They may have also recognised the broader ethical concerns raised by her representation of multiple parties with conflicting interests. If they did not, they should have.

Even Mr Bateson, in discussions with Mr Thomas, appears to have expressed some concern about Ms Gobbo. In evidence before the Commission, Mr Bateson placed some reliance on a conversation with Mr Thomas in which he suggested Mr Thomas may be ‘better off with independent legal representation’ and that Ms Gobbo and her instructing solicitor were ‘involved with a lot of other people’.²⁰⁰ Mr Bateson claimed he said this ‘because Ms Gobbo was acting for a lot of people in or related to [Carl] Williams’ criminal enterprise’ and was ‘registered as a human source’. He noted, ‘I thought it better for [Mr Thomas] to have a barrister who had no such involvement’.²⁰¹

That was undoubtedly true but a gross understatement and too little far too late. It is risible to suggest that the Purana Taskforce could extricate itself from its role in this extraordinary ethical impasse by hinting to Mr Thomas that Ms Gobbo was ‘involved with a lot of other people’.

In any case, Mr Bateson subsequently vouched for Ms Gobbo’s honesty. In a meeting with Mr Bateson on 23 March 2006, Mr Thomas said his ‘gut feeling’ was that Ms Gobbo would ‘rather help’ police rather ‘than help what’s going on out there’.²⁰² Mr Bateson’s response was to say he thought Ms Gobbo was an ‘honest’ barrister.²⁰³ In June 2006, Mr Bateson again assured Mr Thomas he could trust Ms Gobbo and that she was honest.²⁰⁴ Mr Bateson’s conduct and responsive submission are discussed further in Chapter 8.

As planned, the Purana Taskforce provided the SDU with the 23 March 2006 transcript of their conversation with Mr Thomas, which was in turn shown to Ms Gobbo. She met with Mr White and her SDU handlers, Officer Green (a pseudonym) and Officer Peter Smith (a pseudonym) and read aloud from the transcript. They laughed about Mr Thomas’ ‘gut feeling’ that she would rather help the police.²⁰⁵ Later in this meeting when discussing circumstances surrounding Mr Thomas, Mr Cooper (discussed in detail below) and others, Ms Gobbo notoriously announced, ‘The general ethics of all of this is fucked.’²⁰⁶

The conduct of Victoria Police is the focus of Chapter 8, but in analysing the effect of Ms Gobbo’s conduct on Mr Thomas’ case, it is clear that whatever ethical misgivings some individual police officers held were overcome by the perceived benefits of using Ms Gobbo to obtain valuable intelligence for the Purana Taskforce to break the criminal syndicates behind the gangland wars.

Victoria Police had identified the ethical dilemma but closed their eyes to it and subsequently facilitated and encouraged it. As Mr White said to Ms Gobbo at the meeting on 20 April 2006: ‘… if anybody can get [Mr Thomas] to tell the truth it will be you. Now, is that in his own interests? We don’t know enough about it. You would know a lot more about that’.²⁰⁷

This ambivalence on the part of some individual officers involved with Ms Gobbo continued over the years: sometimes recognising the practical, ethical and safety hazards of using her as a human source, sometimes paying lip service to them, but ultimately disregarding them to continue to use her as a human source where this suited Victoria Police’s objectives.

Ms Gobbo’s role in relation to Mr Thomas: familiar patterns, repeated and amplified

Despite Mr Thomas’ initial willingness to assist, negotiations with Purana reached a stalemate and police needed Ms Gobbo’s assistance to get him ‘over the line’.²⁰⁸ On 5 May 2006, she told her handler that she thought that if Mr Thomas was aware of Mr Cooper’s decision in April 2006 to cooperate with police—the circumstances of which are set out below—then Mr Thomas would do likewise.²⁰⁹ Mr Thomas did subsequently learn that Mr Cooper had rolled²¹⁰ and by the end of June 2006, Mr Thomas had resolved to plead guilty and provide statements to the Purana Taskforce,²¹¹ which Mr Bateson prepared over the following month.²¹²

As with Mr McGrath, Ms Gobbo played a significant role in finalising Mr Thomas’ statements, with several of the troubling hallmarks in Mr McGrath’s case repeated and amplified. For example, on 9 and 10 July 2006, she suggested to her handler matters that officers should raise when interviewing Mr Thomas. Informer Contact Reports (ICRs) prepared by SDU officers at this time record her suggestion that Mr Bateson should ‘bring up the subject of money’, because Mr Thomas ‘will know about money and be able to explain the finances of Carl Williams if [interviewing] members mention appropriately’. One of Mr Thomas’ subsequent statements indeed concerned assets related to unlawful activities.²¹³

Again, as with Mr McGrath, investigators were initially concerned that Mr Thomas was not being entirely truthful about some homicides and Mr Bateson arranged for Ms Gobbo to meet with him.²¹⁴ Following a conference on 13 July 2006, Ms Gobbo reported that Mr Thomas was ‘up to 80’ per cent truth but had been dishonest about one murder.²¹⁵ By 15 July 2006, she had reported to her handlers that the Purana Taskforce was now content with his cooperation.²¹⁶

In addition, Ms Gobbo played an active role in reviewing Mr Thomas’ draft statements; and again, the nature and extent of her involvement was concealed from her client. She reviewed hard copies of his statements and hand marked proposed edits.²¹⁷ It is not possible to ascertain the impact of those edits on the final statements, because Victoria Police was unable to produce either the previous drafts or her hard-copy revisions. There are indications that the revisions were substantive: her handler, Mr Smith, was told in a meeting with then Detective Sergeant Dale Flynn that she had ‘supplied a lot of details re Thomas’ statements’.²¹⁸ In a 2008 SDU meeting with Mr White, Mr Green and another officer, she said:

I edited it. I went to Purana secretly one night and edited all his statements. I corrected them. But no-one ever knows about that. That would never come out. Even Thomas doesn’t know I did that.²¹⁹

In contrast, Mr Bateson claimed that the only edits she made to Mr Thomas’ statements were to grammar.²²⁰ Ms Gobbo’s boasting admission, recorded by her handlers relatively contemporaneously, seems more probable.²²¹

In exchange for Mr Thomas’ cooperation, prosecutors brought only one charge against him, the murder of Mr Jason Moran, and agreed to submit to the court that he should receive a discounted sentence. Prosecutors accepted that Mr Barbaro was an ‘unintended victim’ of the ‘hit’ on Mr Moran.²²²

In sentencing Mr Thomas on 27 September 2006, the Supreme Court took into account his cooperation with police, noting that he had then made some 14 statements, which were ‘undoubtedly important and highly relevant… [and] wide ranging’; and that he had provided, and agreed to continue providing, ‘extensive, important and effective cooperation relating to the highest level of violent drug-related and organised crime’.²²³ The Court also noted that Mr Bateson characterised Mr Thomas’ evidence as ‘exceedingly valuable’, ‘extensive and comprehensive’, that it ‘related to numerous organised crime figures’, ‘revealed high scale organised crime, violence and drug dealing’, and was ‘of extreme importance to Victoria Police’.²²⁴ The Court did not know of Ms Gobbo’s egregious conduct in purporting to act for Mr Thomas while a registered human source.

There are of course many instances where accused persons, on the sound advice of their independent lawyers, choose to cooperate with the authorities, usually to better their position on sentence. Sometimes they are also remorseful and wish to reform. Such cooperation often endangers the safety of those cooperating and of people close to them, as the criminals they implicate could seek revenge and attempt to deter others from assisting police. Cooperation of this kind is of great assistance to police, the criminal justice system and the wider community. The courts actively encourage this course, taking both the cooperation itself and the resulting safety risks into account as a significant moderating factor when sentencing. It is completely orthodox, indeed often essential, for the lawyers of accused persons to advise and encourage them to cooperate with the authorities where this is in their best interests and to explore such options for the client with investigating police officers and the prosecution.

Ms Gobbo’s conduct, however, went very far outside the appropriate role of an independent lawyer acting in her client’s best interests. She deliberately disclosed to Purana Taskforce investigators potentially confidential and privileged information concerning Mr Thomas, his personal circumstances and his case. Her conflicted position as both human source and Mr Thomas’ lawyer meant that it was impossible for her to give him independent legal advice in his best interests as she was also actively advancing the agenda of the Purana Taskforce. Her position was further conflicted by her also acting for Mr McGrath, a key witness against Mr Thomas, and her concealment from Mr Thomas of the nature and extent of her involvement in finalising Mr McGrath’s evidence. Had Mr Thomas and his other lawyers known these matters, he would have received independent, informed legal advice and may have made different decisions as to his guilty plea and his cooperation with the Purana Taskforce.

Some effects of Ms Gobbo’s conduct on her wider obligations

Ms Gobbo’s conduct in respect of Mr Thomas was not limited to the potential violation of her obligations to him. In concealing her conflicted position, her relationship with Victoria Police, and materials that ought to have been disclosed to the courts, she potentially violated her obligations to the other legal practitioners involved and to the administration of justice.

Despite her many and varied conflicts, Ms Gobbo attempted to act for Mr Thomas at his sentencing hearing for the murder of Mr Jason Moran. The trial of his co-accused, Mr Williams, was to commence in August 2006 before Justice King. Ms Gobbo had previously acted for Mr Williams, including in relation to the Moran/Barbaro and Marshall murders and Mr Williams vigorously objected to Ms Gobbo appearing for Mr Thomas. He formally but unsuccessfully complained to Justice King and to the Victorian Legal Services Board and Commissioner (VLSB+C), which referred the complaint to the Victorian Bar Ethics Committee to investigate.²²⁵

Mr Faris, on behalf of Mr Williams, told Ms Gobbo that he would seek an injunction to restrain her from acting for Mr Thomas.²²⁶ Only then did she withdraw from representing Mr Thomas at his sentencing hearing. Instead of taking this opportunity to extricate herself from a damningly conflicted position, she continued to act for him, informing her handlers and Mr Bateson that, although not appearing in court, she would continue to assist and advise him in preparing his plea.²²⁷

Her duplicity continued when she provided a memorandum to Mr Thomas’ new barrister, Mr Duncan Allen, QC, on 12 August 2006. She misleadingly informed Mr Allen that Mr Williams’ complaint arose from the fact that she had appeared as junior counsel (that is, accompanied by a more senior barrister) for Mr Williams and his father in a drug-trafficking committal hearing two years earlier.²²⁸ She stressed that she had been cleared of any conflict of interest by the Victorian Bar Ethics Committee but given Mr Faris’ position, she said that she had decided it was in Mr Thomas’ best interests that she not appear at his sentencing hearing.²²⁹

Another matter in the memorandum to Mr Allen raises concerns. During the final stages of negotiations with police in April 2006, Mr Thomas asked Ms Gobbo to contact Mr Lovitt, who had acted for him at his committal hearing. Mr Thomas wanted to know Mr Lovitt’s view of his prospects of success.²³⁰

In her memorandum to Mr Allen, Ms Gobbo stated that Mr Lovitt had:

… made it clear to [Mr Thomas] he thought he would have real problems at trial, not because [Mr Andrews] was a witness of amazing credibility, nor because he could say that much about [Mr Thomas], but due to the prejudice and risk of standing trial jointly with Carl Williams.²³¹

Mr Lovitt told the Commission that, even following the committal hearing, he considered Mr Thomas to have a reasonable chance of being acquitted (found not guilty) at trial.²³² He said he had never contemplated advising Mr Thomas to consider pleading guilty to murder or negotiating a plea deal.²³³ At no stage, however, was Mr Lovitt asked for his opinion about the strength of the case against Mr Thomas.²³⁴ He heard later that Mr Thomas had been told that his (Mr Lovitt’s) view was that Mr Thomas would not have a chance of defending the charges. This angered him because it was a lie.²³⁵

This further calls into question the conduct of Ms Gobbo.²³⁶ It seems that Mr Lovitt was not asked to speak with or advise Mr Thomas about his prospects at trial and Ms Gobbo appears to have deliberately misled Mr Allen in this respect. It also seems that Mr Thomas did not receive the benefit of knowing that, even after committal, Mr Lovitt considered he had real prospects of successfully defending the murder charge.

Ms Gobbo’s by now customary lack of candour continued when, on 25 September 2006, she submitted a response to Mr Williams’ complaint to the Victorian Bar Ethics Committee, all with the knowledge of her handlers and the Purana Taskforce.²³⁷ Her response said that the Purana Taskforce was investigating Mr Williams’ recent conduct towards her, denied having acted for Mr Williams or Mr McGrath in any relevant proceeding, claimed to have disclosed to the court all those for whom she had previously acted and claimed to have an ethics ruling from a QC. She invited the Committee to make enquiries to support her claims with the Purana Taskforce.²³⁸

As in her affidavit to the Board of Examiners seeking admission as a lawyer nearly a decade earlier, Ms Gobbo demonstrated her propensity for self-serving half-truths and dishonesty when dealing with legal profession processes designed to ensure that lawyers maintain appropriately high ethical standards.

Case study: Ms Gobbo’s representation of Mr Faruk Orman

As part of Mr Thomas’ assistance to Victoria Police, he gave evidence in numerous prosecution cases, including that of Mr Faruk Orman for the murder of Mr Victor Peirce, which took place on 1 May 2002, when Mr Orman was 20 years old.²³⁹

The case against Mr Orman was that he acted as the ‘getaway driver’ for the killer, Mr Andrew Veniamin.²⁴⁰ On 29 September 2009, Mr Orman was convicted and sentenced to 20 years’ imprisonment with a non-parole period of 14 years.²⁴¹ On 26 July 2019, the Court of Appeal overturned his conviction and entered a verdict of acquittal after the DPP conceded that Ms Gobbo’s conduct when she was Mr Orman’s lawyer had caused a substantial miscarriage of justice.²⁴²

Figure 7.2 illustrates Ms Gobbo’s conduct in relation to Mr Orman. It highlights the conflict she had with Mr Thomas and the kinds of information she gave to Victoria Police about Mr Orman.²⁴³

Figure 7.2: Ms Gobbo’s involvement in providing information relating to Mr Faruk Orman

Ms Gobbo’s association with Mr Domenic (Mick) Gatto

Ms Gobbo had a long association with Mr Orman, acting for him at various times between 2002 and 2008.²⁴⁴ Mr Orman was an associate of Mr Domenic (Mick) Gatto and her involvement with Mr Orman was an extension of her longstanding relationship with Mr Gatto.

By 2007, the Purana Taskforce had turned its attention to the so-called ‘Carlton Crew’, a criminal group that it believed was headed by Mr Gatto.²⁴⁵ In 2004, the Purana Taskforce had charged Mr Gatto with murder after he fatally shot Mr Andrew Veniamin.²⁴⁶ Mr Gatto argued self-defence at trial and was found not guilty.²⁴⁷ Though not specifically tasked to do so, in 2006 Ms Gobbo began cultivating a relationship with Mr Gatto and providing information to the Purana Taskforce and her SDU handlers about him and his associates.²⁴⁸ In June 2006, she reported to her handlers that he had recommended others in his ‘circle’ to use her as a barrister.²⁴⁹ Ms Gobbo also spent time with Mr Orman in a social context through her relationship with Mr Gatto. For example, in March 2007, all three ‘celebrated’ the three-year anniversary of Mr Veniamin’s killing.²⁵⁰ In the latter part of 2007, by Ms Gobbo’s account, her relationship with Mr Gatto had become very close.²⁵¹

Given this background, it is unsurprising that when Mr Orman was arrested and charged on 22 June 2007 for the murder of Mr Peirce, he asked for Ms Gobbo as his lawyer²⁵² and Mr Gatto (according to Ms Gobbo) paid his legal fees.²⁵³

Ms Gobbo again acts as an instrument for the Purana Taskforce

Ms Gobbo recognised that acting as Mr Orman’s lawyer provided opportunities to assist the Purana Taskforce. She told the Commission that she knew the Taskforce wanted to identify those in Mr Gatto’s circle whom they could pressure into rolling against him.²⁵⁴ The basis of the prosecution of Mr Orman turned in large measure on the evidence of Mr Thomas.²⁵⁵ Ms Gobbo must have known that by positioning herself in Mr Orman’s defence team, she could monitor the trial to ensure that her role in securing Mr Thomas’ cooperation, and her broader role as a human source—critically useful information to Mr Orman’s defence—were not disclosed as they should have been. It was a repetition of her deceptive and unethical behaviour in Mr Thomas’ case.

Ironically, Ms Gobbo’s initial role in Mr Orman’s case was to request disclosure of materials held by the prosecution and to evaluate the strength of the case against him.²⁵⁶ Mr Robert Richter, QC was briefed to act for Mr Orman at his committal hearing and trial, with Ms Gobbo as his junior counsel.²⁵⁷ Mr Richter informed the Commission that the defence was required to explore the nature and origin of Mr Thomas’ evidence, and any weaknesses in it that might bear on Mr Thomas’ credibility.²⁵⁸

Unknown to Mr Richter and Mr Orman, Ms Gobbo’s past relationship with Mr Thomas and her role in facilitating his evidence against Mr Orman meant that she was utterly conflicted.²⁵⁹ She knew of crucial material that could have undermined Mr Thomas’ credibility but, with the assistance of her handlers and Purana investigators, kept it secret to protect her own position. Indeed, she was still acting for Mr Thomas when she began acting for Mr Orman.

Corrections Victoria records show that Ms Gobbo conducted regular professional visits to Mr Thomas after he was sentenced in September 2006 until 11 June 2007, just days before Mr Orman was arrested and charged.²⁶⁰ Their relationship continued well beyond that point. In November 2007, she reported to her handler that Mr Thomas was ‘down’ and was contemplating withdrawing from his undertaking to give evidence against Mr Orman.²⁶¹ She suggested that Mr Thomas needed a visit from the Purana Taskforce to ‘put him straight, otherwise he was going to give it all in’.²⁶² Mr Hatt and Mr Bateson, apparently acting on that information, visited Mr Thomas on numerous occasions.²⁶³ He clearly regained his resolve, and gave evidence at Mr Orman’s trial.

The instructing solicitor in the prosecution of Mr Orman, Ms Vicky Prapas, wisely raised concerns with prosecuting counsel in February 2008 about Ms Gobbo’s previous representation of Mr Thomas, including in the ‘negotiations surrounding [Thomas’] indemnity and guilty plea’.²⁶⁴ Ms Prapas was not apprised of Ms Gobbo’s extensive involvement as a human source with Victoria Police or of the true nature of her involvement with Mr McGrath and Mr Thomas; but there was sufficient detail, even on the public record, to cause Ms Prapas concern about the ethics of Ms Gobbo acting for Mr Orman given her past relationship with Mr Thomas.

Following Ms Prapas’ enquiry, Ms Gobbo appears to have ceased representing Mr Orman in court in relation to his committal proceedings, but her involvement with him as a lawyer continued. For example, Mr Richter recalled that she assisted him both before and after the committal hearing,²⁶⁵ and her financial records, among other sources, recorded that she appeared for Mr Orman at mentions and directions hearings in August,²⁶⁶ November²⁶⁷ and December 2008,²⁶⁸ in the lead up to his trial. As in other instances, she did not cure her glaring conflicts of interest by acting as Mr Orman’s lawyer only behind the scenes and not in contested public court hearings.

While acting for Mr Orman, Ms Gobbo was simultaneously communicating with her handlers and the Purana Taskforce about Mr Orman’s defence.²⁶⁹ She was clearly anxious to ensure that prosecution disclosures to the defence did not expose her role as a human source or the extent of her involvement with Mr Thomas. Disclosures made by Victoria Police included transcripts of Mr Thomas’ conversations with Purana Taskforce officers but with redactions wherever Ms Gobbo featured.²⁷⁰ Even though she was not named, Ms Gobbo remained extremely apprehensive that these disclosures—or Mr Thomas’ testimony—might expose her.

For example, on 21 February 2008, Ms Gobbo told her handler that before he gave his evidence he had ‘to be told that he needs to claim legal professional privilege’ if asked about her involvement with him.²⁷¹ The notes of another handler of 7 March 2008 record that Ms Gobbo reiterated those concerns, and that she was ‘worried about a transcript which is on the brief in which her name has been blacked out 70–80 times’.²⁷² Those notes also record: ‘RICHTER has asked why her name appears in the brief and she has been able to explain herself, but the material that has been blacked out will cause her problems if revealed’.²⁷³

Ms Gobbo told the same handler that Mr Richter intended to ask Victoria Police to justify the redactions in the records produced, which again concerned her.²⁷⁴ Her handlers assured her that Mr Thomas would be briefed about the need to answer questions in such a way as to not expose privileged matters;²⁷⁵ more broadly, she was assured that the proceedings would be monitored and she would be apprised of any issues affecting her.²⁷⁶ It is not clear on the evidence before the Commission whether police in fact gave Mr Thomas these directions about giving evidence.²⁷⁷

Similarly, after the committal hearing, Ms Gobbo reported to her handlers that Mr Richter intended to subpoena transcripts of what Mr Thomas had said in another hearing, which in her view exposed a great many lies and contradictions in his statements to Victoria Police. She advised that these subpoenas must be resisted.²⁷⁸ She also advised police regarding one statement of Mr Thomas where she referred to Mr Orman’s concern about e‑tag records and photographs of the ‘getaway’ vehicle driven by Mr Orman, noting that this was not in Mr Orman’s brief of evidence. She advised police that they should try to obtain that evidence.²⁷⁹

Meanwhile, the legitimate efforts on Mr Orman’s behalf to obtain statements, transcripts and other material relating to Mr Thomas were met with resistance from Victoria Police.²⁸⁰ Purana Taskforce officers had prepared Mr Thomas not to answer questions about the circumstances leading to his rolling.²⁸¹ The officers agreed that if need be, they could make a PII claim over the material sought.²⁸² There is no doubt that, whether motivated by a misguided understanding of the laws of disclosure, a desire to preserve Ms Gobbo’s safety, sinister motives intended to undermine the administration of justice, or a combination of these, the objective was to conceal Ms Gobbo’s part in encouraging Mr Thomas to become a police witness against Mr Orman and her role as a human source more generally.

Mr Orman’s conviction and subsequent acquittal

With the benefit of hindsight, Mr Richter shared his concerns with the Commission about Ms Gobbo’s conduct in the Orman trial. He recalled, for example, that Mr Thomas made two statements to the effect that Mr Orman had made admissions to him while at a particular address where Mr Thomas was living at the time. Mr Thomas confirmed this in his evidence at the committal hearing. The defence obtained evidence that Mr Thomas could not have been living at that address at the relevant times.²⁸³ Ms Gobbo was privy to this information. In his evidence at trial, for the first time Mr Thomas recalled that he was not living at this address but somewhere else at the relevant times, under-cutting the basis of the planned defence attack on his credibility.²⁸⁴ The defence had also obtained evidence suggesting that Mr Orman’s vehicle could not have driven along the route Mr Thomas described. Before the defence could call that evidence, the prosecution provided the defence with evidence (including photographs and e-tag records) demonstrating that it was possible for Mr Orman’s vehicle to travel along the route described by Mr Thomas.²⁸⁵ Ms Gobbo had advised Victoria Police to obtain evidence of that very kind.²⁸⁶

Mr Richter told the Commission of his concerns, at the trial and since, that Victoria Police unlawfully obtained information about Mr Orman’s defence and coached Mr Thomas in his evidence.

In a statement to the Commission, Mr Richter explained:

To me, the Orman trial was always a source of deep misgivings and ruminations involving speculation about gross and possibly criminal breaches of duty and misconduct by a number of people. It came as a shattering revelation to me that Ms Gobbo, acting in concert with her handlers and others procured a corruption of our system of justice which resulted in a young man spending 12 years, thus far, in prison. I was aware that Orman had been terribly treated in prison because he refused a police/prosecution deal which would involve him creating evidence against Dom[e]nic Gatto. What I and Orman didn’t know was that his Junior Counsel was a police informer seeking to manipulate him and was deceiving and sabotaging his Senior Counsel’s efforts to defend him.²⁸⁷

Ms Gobbo’s conversations with her handlers set out above provide powerful support for Mr Richter’s misgivings. More than 10 years after his conviction, the DPP conceded in Mr Orman’s appeal that a substantial miscarriage of justice had occurred²⁸⁸ because:

• Ms Gobbo had represented Mr Thomas from as early as October 2002 and intermittently until August 2008
• the ‘murder case against Mr Orman substantially depended [on Mr Thomas]’
• Ms Gobbo had been engaged by Mr Orman in October 2006 and had acted for him intermittently until at least December 2008
• at a time when she was engaged to act on behalf of Mr Orman, Ms Gobbo improperly took active steps to ensure that [Mr Thomas] gave evidence against Mr Orman in the murder trial’.²⁸⁹

In unanimously accepting those concessions, allowing the appeal, quashing Mr Orman’s conviction and directing a verdict of acquittal, the Court of Appeal noted that Ms Gobbo’s conduct was a ‘fundamental breach of her duties to Mr Orman and to the Court’. It went on: ‘Ms Gobbo’s conduct subverted Mr Orman’s right to a fair trial, and went to the very foundations of the system of criminal trial. There was, accordingly, a substantial miscarriage of justice’.²⁹⁰

Mr Orman’s story shows that Ms Gobbo was determined to inform on her high-profile clients to please Victoria Police. Her handlers had some insight into the impropriety of this and sometimes half-heartedly sought to distance her from them and from the activities of the Purana Taskforce, reminding her that she was not ‘tasked into Gatto’ and even suggesting the winding-up of her relationship with the SDU.²⁹¹ She persisted, insisting that she wanted to ‘help solve crimes’ and police soon acquiesced in this.²⁹² She did not merely do what Victoria Police officers requested of her; rather, she proactively forewarned them of forensic issues, suggested strategies and volunteered information. Evidently, she was largely able to dictate the scope and parameters of her dual role as both lawyer and human source.

Mr Orman’s experience starkly demonstrates the consequences of the conduct of Ms Gobbo and Victoria Police officers. His wrongful conviction was the result of a ‘chain reaction’ of misconduct, from Ms Gobbo’s involvement with Mr McGrath in his implication of Mr Thomas, through to her role in in ensuring Mr Thomas became a police witness, and her registration as a human source.

The consequences for Mr Orman were dire. He thought his junior barrister was fearlessly and fairly representing his interests. Instead, she was actively undermining his defence to the police. He was charged on the basis of evidence tainted by her previous misconduct, which neither she nor the police disclosed to him. Had she done her duty as his barrister and had Mr Orman been given a fair trial according to law, he may well have been acquitted in 2009. Mr Orman spent 12 years of his young life in prison. The damage wrought by his unjust trial, not just to him and his family, but to Victoria’s criminal justice system, is significant.

Case study: Ms Gobbo’s representation of Mr Cooper (a pseudonym)

The relevant proceedings against Mr Cooper comprised four matters,²⁹³ all involving serious drug offending and ultimately determined together as part of consolidated plea and sentencing hearings in February 2007.²⁹⁴ Most significantly, he pleaded guilty to large-scale trafficking offences connected with the manufacture and distribution of methylamphetamine carried out in association with members of the Mokbel family.²⁹⁵ His connection with the Mokbel family made Mr Cooper of particular interest to the Purana Taskforce, which had established Operation Posse to dismantle the criminal enterprise of the Mokbels and their associates.²⁹⁶

Ms Gobbo’s professional association with Mr Cooper commenced five years earlier, in 2002, when she acted for him in a number of matters.²⁹⁷ As was typical of Ms Gobbo’s relationships with her clients, their relationship also had a social dimension.²⁹⁸ Ms Gobbo and her handlers believed that Mr Cooper was romantically interested in her²⁹⁹ and they made full use of this.³⁰⁰

Ms Gobbo’s role in relation to Mr Cooper

Through Operation Posse, Purana Taskforce hoped that Mr Cooper would roll and provide information and evidence about his associates, especially the Mokbels. Ms Gobbo played a pivotal and early role in realising these hopes. Operation Posse’s Investigation Plan recorded that its objectives were to ‘utilise the continuing information provided by Registered Human Sources’, such as Ms Gobbo, and to target Mr Cooper’s activities in relation to Mr Tony Mokbel.³⁰¹ Ms Gobbo was tasked to do this shortly after her registration as a human source in September 2005.³⁰²

Mr Flynn accepted in his evidence to the Commission that Purana Taskforce officers were ‘keen to task [and] get as much information from Ms Gobbo as possible’.³⁰³ To that end, they made specific requests for information about Mr Cooper, often through Ms Gobbo’s handlers, who in turn would communicate those requests to Ms Gobbo and feed her responses back to the taskforce.³⁰⁴ Indeed, Ms Gobbo’s handlers repeatedly told her to inform them immediately of any contact with Mr Cooper.³⁰⁵ At this time, Ms Gobbo’s role in Operation Posse was discussed and, at least implicitly, sanctioned at meetings of senior Victoria Police officers (detailed further in Chapter 8).

Ms Gobbo accepted in evidence to the Commission that she was aware of Victoria Police’s objective to get Mr Cooper ‘to roll and cooperate with police’.³⁰⁶ From September 2005, Ms Gobbo provided extensive and valuable information to police about Mr Cooper’s circumstances and activities. This included his financial affairs;³⁰⁷ his association with other suspects or persons of interest, particularly members of the Mokbel family;³⁰⁸ his movements and travel;³⁰⁹ and his personal particulars such as personal and family mobile phone numbers,³¹⁰ residential address³¹¹ and motor vehicle details.³¹²

She also provided information about Mr Cooper’s drug-related activities. For example, in December 2005, Ms Gobbo told her handlers that Mr Milad Mokbel had precursors for the production of drugs; that Mr Cooper had offered to manufacture drugs for him subject to receiving other materials;³¹³ and subsequently, that the production was to commence shortly.³¹⁴

The frequency and level of detail of Ms Gobbo’s information about Mr Cooper’s drug-related activities increased over time. Her handlers’ records between January and April 2006 often referred to her alerting them to Mr Cooper’s suspicion that he was under police surveillance;³¹⁵ and advising them when she knew or believed that he was delivering drugs, collecting money for drugs, obtaining materials to ‘cook’ drugs, ‘cooking’ drugs or about to do so, and even advising them to follow him at particular times when he would be engaged in these activities.³¹⁶

Critically, she conveyed to Victoria Police officers information about the location and features of Mr Cooper’s drug laboratory in Strathmore.³¹⁷ The Purana Taskforce then discovered the location of the laboratory, commenced surveillance and obtained a search warrant.³¹⁸ Mr Cooper was arrested at these premises on 22 April 2006. Mr O’Brien described the discovery of the Strathmore laboratory as a ‘significant breakthrough’, conceding, ‘I do not know whether we would have located this lab without [Ms Gobbo’s] information’.³¹⁹ Mr Flynn described this information as ‘crucial’, and rightly attributed Mr Cooper’s arrest to Ms Gobbo’s assistance. Again, the responsive submissions of Victoria Police and its officers are discussed in Chapter 8.³²⁰

Ms Gobbo was able to assist Victoria Police in this way because, throughout this period, Mr Cooper believed she was both his legal representative and ‘basically [his] best friend’.³²¹ At the time of his arrest for the Strathmore offending in April 2006, Mr Cooper was already on bail for two separate episodes of previous drug trafficking, in which Ms Gobbo was acting for him.³²² A stark example of Ms Gobbo’s duplicity offered by Counsel Assisting was that on the morning of 13 April 2006, she met with her handlers, telling them that she was ‘frustrated that police had not achieved any arrests and have not found any of [Mr Cooper’s] clandestine laboratories’.³²³ That afternoon she met with Mr Cooper and her instructing solicitor to discuss Mr Cooper’s ongoing court proceedings.³²⁴

Ms Gobbo cultivated her personal relationship with Mr Cooper while informing on him to police. For example, in 2006 she helped to organise and attended a party he hosted, and used this opportunity to provide information to assist the Purana Taskforce. She took on responsibility for the party RSVPs in order to provide personal details of attendees of interest to the Taskforce.³²⁵ She took photographs during the party with a camera her handlers obtained from Purana Taskforce, and later identified those she photographed to her handlers.³²⁶

Ms Gobbo was again not merely informing as a passive onlooker. She was proactive and inventive in proposing ways to get more information from Mr Cooper and about him to assist police. She suggested early on to her handlers that he might be inclined to cooperate with police. Indeed, she proposed engineering a scenario where Mr Flynn would accidentally see her and Mr Cooper at dinner, prompting a discussion about his cooperation.³²⁷ After Mr Cooper’s party, she suggested that her handlers fit her with a hidden micro-recorder so that her conversations with Mr Cooper could be accurately and covertly recorded.³²⁸ While neither proposal was acted upon, both seem to have been considered.³²⁹

Ms Gobbo suggested strategies to police that might persuade Mr Cooper to roll. In February 2006, she reported that he was financially ‘vulnerable’ because he was owed a lot of money, and that he could be ‘targeted financially’,³³⁰ advising her handlers that if Mr Cooper ‘has no money he may talk’.³³¹ In April 2006, she advised her handlers that he may roll if he believed that the Mokbels had also been arrested.³³² She also told them that he ‘has respect’ for Mr Flynn, and suggested that Mr Flynn, rather than other officers, should lead negotiations with him about his cooperation.³³³

When Mr Cooper was arrested on 22 April 2006, Ms Gobbo’s handler, Mr Smith, observed that she seemed happy with the outcome and asked: ‘Who’s next?’³³⁴ Even if this was not meant seriously, it demonstrates a disturbing flippancy.

Mr Cooper’s arrest and cooperation

The circumstances surrounding Mr Cooper’s arrest and its aftermath are a high point of Ms Gobbo’s duplicity, and demonstrate the irreconcilable conflict between her dual roles of human source and lawyer to a person she was manipulating and informing on for the benefit of Victoria Police.

In the afternoon of 22 April 2006, Mr Cooper was arrested at the Strathmore laboratory that Ms Gobbo had helped police to locate.³³⁵ Mr Cooper immediately asked to contact Ms Gobbo and police permitted him to do so.³³⁶ While Ms Gobbo was on her way to the St Kilda Road Police Station, Mr Cooper gave a ‘no comment’ interview.³³⁷ After arriving Ms Gobbo spoke with Mr Cooper for up to an hour before leaving the station and immediately contacting her SDU handler to divulge what Mr Cooper must have thought was a privileged and confidential discussion with his lawyer.³³⁸ She told her handler, for example, that Mr Cooper was wondering how police knew of the location of the lab and that he had not started ‘cooking’ before police arrived.³³⁹

In the early evening, police explained why they considered it to be in Mr Cooper’s best interests to cooperate.³⁴⁰ Mr Flynn later asked Ms Gobbo to return to the station.³⁴¹ She arrived at 7.15 pm and met with Mr O’Brien, who advised her that they had put a proposal to Mr Cooper to elicit his cooperation.³⁴² She then met with Mr Cooper in the presence of police officers. At no stage did police or Ms Gobbo advise Mr Cooper of the true relationship between Ms Gobbo and Victoria Police.³⁴³

What followed, according to Ms Gobbo, was that Mr Cooper became upset, took Ms Gobbo by the hand, told her that he loved her, and said repeatedly that he ‘can’t do this’ (cooperate) and that he would not do so unless she told him he should. She asked him to think about certain close family members and advised him to cooperate.³⁴⁴ Reflecting on this occasion later, she said that he had ‘needed a bit of a push’ to roll, and that she had obliged.³⁴⁵

Mr Cooper accepted Ms Gobbo’s advice and cooperated with police. He immediately made admissions about his own conduct and also provided information about others, including members of the Mokbel family.³⁴⁶ In the days that followed, he provided further information about his associates and participated in conversations that were covertly recorded by Victoria Police.³⁴⁷

As Victoria Police planned how to best use Mr Cooper, they began preparing him to make written statements. Simultaneously, Ms Gobbo was conferring with Mr Cooper and reporting the details back to her handlers.³⁴⁸ She encouraged and reassured him as to the correctness of his decision to cooperate.³⁴⁹ She provided suggestions to her handlers about suitable topics for conversations between Mr Cooper and Mr Milad Mokbel.³⁵⁰ She managed her communications, and those of Mr Cooper, with his family members and associates to conceal his assistance to police.³⁵¹ She continued to act as his lawyer and appeared at a filing hearing in relation to his charges on 26 April 2006.³⁵²

In the months thereafter, Mr Cooper made many statements for Victoria Police, with Ms Gobbo continuing to play an active role. For example, she met with Purana Taskforce officers to discuss the statement-taking strategy, and regularly attended statement-taking ‘sessions’ with Mr Cooper, providing him with continuing moral support and encouragement.³⁵³ She commented on aspects of his statements.³⁵⁴ She exploited their relationship to ‘value add’ to his statements; for example, telling police that he knew more than he initially let on about an associate, Mr Cvetanovski.³⁵⁵ She also advised Mr Cooper how to make his evidence ‘bullet proof from cross-examination’.³⁵⁶

The effects of Mr Cooper’s cooperation were far-reaching. In sentencing him in February 2007, the County Court of Victoria noted that his assistance had ‘disclosed wide scale criminal activity at a very high level’, and allowed police to act against ‘30 or 31 different people, the majority of whom … [were] entrenched in the heart of the Melbourne underworld’. At that stage, Mr Cooper had made around 30 statements to police.³⁵⁷ He would ultimately make over 40 statements implicating dozens of people in criminal activity.³⁵⁸ Of these, Counsel Assisting identified 26 people whose cases resulted in convictions based on Mr Cooper’s evidence.³⁵⁹ On the material before it, the Commission accepts this aspect of Counsel Assisting’s submissions. One such individual was Mr Cvetanovski, whose appeal is discussed further below.³⁶⁰

Four of the people implicated by Mr Cooper decided to cooperate with police.³⁶¹

Ms Gobbo’s perspective

Ms Gobbo submitted that there is no evidence that she did anything to encourage Mr Cooper to commit drug offences. She told the Commission that she simply inquired about his criminal activity and that this did not amount to aiding or abetting him.³⁶²

Ms Gobbo submitted that generally, in relaying information to Victoria Police about Mr Cooper prior to his arrest, she did not breach her legal professional privilege duties or duties of confidence.³⁶³ To support this proposition, Ms Gobbo pointed to two factors:

• First, she submitted that it is not obvious when she was receiving information from Mr Cooper as his lawyer, as opposed to his friend. This blurring of the personal and the professional made it difficult to determine which pieces of information are privileged and which are not.³⁶⁴
• Second, she submitted that legal professional privilege does not attach to information about ongoing criminality or in furtherance of a crime. Therefore, the information related to new drug manufacturing that Mr Cooper was engaged in would not have been covered by legal professional privilege.³⁶⁵ This argument is made even stronger, Ms Gobbo submitted, because of the imminent danger to ‘safety of primary school children’ due to the location Mr Cooper was operating in and his possession of a firearm.³⁶⁶

Ms Gobbo accepts that it was an inexcusable breach of her duties where she did relay information to her handlers that she received from Mr Cooper as his lawyer and not as his friend, and where that information did not relate to an ongoing crime.³⁶⁷

The Commission does not wish to prejudice any future proceedings by giving its opinion as to which precise pieces of information are privileged and which are not. The Commission notes, however, that in general the relationship between a lawyer and a client is one based on trust and confidence. This trust is eroded when a person’s lawyer is acting as an agent for police. The absence of clarity as to whether Ms Gobbo was at times acting as Mr Cooper’s lawyer or simply advising him as a friend does not excuse her wrongful conduct. Rather, it is a dimension of her pattern of conduct that she failed to maintain clear boundaries between her personal and professional life.

As is made clear throughout this chapter, the boundaries of many of Ms Gobbo’s relationships with her clients were similarly blurred. Among other issues, this may have led to situations where she regarded a particular interaction or conversation as personal, while her client/friend understood it as an extension of her role as lawyer.³⁶⁸ And while the rules of legal professional responsibility accept that it is generally appropriate to disclose a client’s plans to commit future crime, once the lawyer does so they must immediately cease to act for the client. Ms Gobbo, however, continued to act for her clients while informing against them—that is, while acting as an agent of the police. The Commission notes that Ms Gobbo told her handlers that some of her clients, for example Mr Rabie (Rob) Karam and Mr Horty Mokbel, asked Ms Gobbo to attend meetings to add an air of legitimacy, especially if they feared they were under surveillance.³⁶⁹ This seems to have been to allow them to challenge any surveillance evidence by contending that the meeting was covered by legal professional privilege. Ms Gobbo’s submissions suggest an ongoing lack of insight into and remorse for her conduct in blurring her personal and professional relationships.

In any event, Ms Gobbo also accepted that she breached her professional duties to Mr Cooper by attending the police station after he was arrested. She conceded that Mr Cooper was not given the benefit of an independent lawyer representing him on this occasion.³⁷⁰ The Commission accepts this concession.

Despite this, Ms Gobbo submitted that her advice to Mr Cooper was appropriate, what most independent legal practitioners would have given, and ultimately in Mr Cooper’s best interests.³⁷¹ Ms Gobbo also points to Mr Cooper having had the benefit of other independent legal advice in other parts of his proceeding.³⁷² This last point largely ignores the influence Ms Gobbo had as the only lawyer who attended on Mr Cooper upon his arrest in April 2006 and that those who later gave him independent legal advice either did not know this or that she had informed on him to police leading to his most recent arrest.

Regarding the influence she had on Mr Cooper when he was arrested, Ms Gobbo submitted that her actions were not key in Mr Cooper’s decision to cooperate. She contended that Mr Cooper would always have cooperated with police citing, among other things, the nature of his offending,³⁷³ the prospect of a reduced sentence,³⁷⁴ a ‘frank’ discussion with Mr Flynn about favourable conditions,³⁷⁵ the lessened influence of Mr Tony Mokbel (after he fled to Greece)³⁷⁶ and previous indications that he would be willing to assist authorities.³⁷⁷ None of this mitigates the extent of Ms Gobbo’s conduct; her submissions again magnify her lack of insight and remorse.

As previously stated, Ms Gobbo reported to her handlers that Mr Cooper ‘needed a bit of a push’ to roll, and that she had obliged. Ms Gobbo submitted that this statement to handlers should be viewed in context of her tendency to exaggerate and her desire to impress her handler, Mr White.³⁷⁸

Finally, Ms Gobbo submitted her reservations as to Mr Cooper’s reliability, stating he is ‘not a trustworthy, reliable witness’ and was involved in serious criminal offending.³⁷⁹

Mr Cooper’s perspective

Notwithstanding Ms Gobbo’s reservations about Mr Cooper’s reliability, Mr Cooper’s understanding of these events is instructive. As noted above, he regarded Ms Gobbo as his ‘best friend’ and placed a ‘significant amount of trust’ in her as his lawyer. He agreed with her assessment that she gave him a ‘push’ to cooperate. He gave the following evidence before the Commission:

COUNSEL ASSISTING: Reflecting on those events, what influence did Nicola Gobbo have on your decision, firstly, to plead guilty?

…

I am concentrating here on the Posse charges …

MR COOPER: Yep. No, she was significant. I wouldn’t have done it on the night. I gave a no comment interview and we would have tied it up there. Had she not come in… the rest of it wouldn’t have happened. The night would not have transpired like that.

…

COUNSEL ASSISTING: … What about the decision to become a prosecution witness once the Posse charges had been made against you? What influence in your view did Nicola Gobbo have in relation to your decision to become a prosecution witness?

MR COOPER: One hundred per cent.

COMMISSIONER: Just before you go on to that, can I take you back to the pleas, the plea you would have made to the Posse charge. Now, had you known that Nicola Gobbo was your—had informed to police about what had happened when she was your lawyer, would that have made any difference to the plea you entered of guilty to the Posse charge?

MR COOPER: Yes, yep. I would have been irate about that, that not only that she’d helped set me up and I would have done everything in my power to have that reversed or have a mistrial or whatever the case may be.

…

COUNSEL ASSISTING: We were talking about your decision to plead and I was then asking you about what influence in your view Ms Gobbo had in relation to your decision to become a prosecution witness?

MR COOPER: Well you see by the transcripts, pretty much everything. By her presence that’s what turned me around.

…

COUNSEL ASSISTING: And what influence—I’m sure it’s difficult to dissect these things because there were numerous people saying numerous things to you on the evening, but what influence did Victoria Police members have in relation to your decision, firstly, to plead guilty and, secondly, to roll and become a prosecution witness?

MR COOPER: It wouldn’t have been something I done. I didn’t do it the first two times. I wouldn’t have done the third time unless I was given that advice by my barrister.

COUNSEL ASSISTING: So Victoria Police alone in your view wouldn’t have got you there?

MR COOPER: No.

COUNSEL ASSISTING: Were you told at any time by Victoria Police members or Nicola Gobbo that you had options for other legal representation?

MR COOPER: No.

COUNSEL ASSISTING: So there was that caution—sorry, go ahead?

MR COOPER: It didn’t occur to me. She was my barrister and I trusted her wholeheartedly.

COUNSEL ASSISTING: And no one ever told you not to use her?

MR COOPER: No.³⁸⁰

Mr Cooper later confirmed that he would ‘absolutely’ have sought independent legal advice had he known the true facts about Ms Gobbo’s involvement with Victoria Police, and would ‘absolutely not’ have allowed Ms Gobbo to continue to act for him.³⁸¹

He also gave evidence that Ms Gobbo continued to exert an influence over him beyond the evening of 22 April 2006 and indeed over the course of his cooperation with police:

COUNSEL ASSISTING: Mr Flynn’s evidence before the Commission was that one of the ways Nicola Gobbo assisted the police was to communicate with you in order to give you a sense of comfort and reassurance so that you’d be encouraged to continue to cooperate with the police after 22 April. Does that accord with your recollection?

MR COOPER: Absolutely, yes.

COUNSEL ASSISTING: And are we talking here about just those handful of days after your arrest where you’re undertaking these particular activities or are we talking right into the future where you were giving evidence well into 2011 and onwards I think?

MR COOPER: It was basically while the statements were being made.

…

And she would come to the prison to see me and keep telling me to stay the course up to 2007. ³⁸²

Asked to reflect on Ms Gobbo’s actions given her position as his lawyer, Mr Cooper said:

Well, that’s just another—that’s just—that’s something for you guys to answer. That’s just out of my league. That’s just crazy, you know. You know, how does a barrister , how does a barrister inform on their client? You know, how does that even happen? You know, it’s so unjust. I can’t understand it, you know.³⁸³

When asked how he felt he had been affected by the conduct of Victoria Police and Ms Gobbo, he said:

I feel so violated. There’s nothing excusing the fact I did the crime and I understand that and I own it, but ultimately I just feel that there’s a system and the system’s been abused and this is all we’ve got, you know, and I honestly, I believe in the system and it just can’t be, it shouldn’t be violated like that, it just shouldn’t be.³⁸⁴

Mr Cooper’s words evoke his understandable sense of betrayal and shock that a person he trusted as his friend and lawyer would work together with police to relentlessly undermine and violate the criminal justice system.

Ms Gobbo’s betrayal of Mr Cooper is disgraceful. She exploited the trust that he placed in her, both as his lawyer and his close friend, to manipulate him. She breached his trust by persuading him, clearly against his own interests, to provide her with information about his offending and his criminal associates, which she readily and proactively divulged to police. This information was apparently intended to be confidential and was potentially subject to legal professional privilege.

Over many months, Ms Gobbo led Mr Cooper to believe that she was his lawyer, friend and confidant when, in truth, she was participating in a sophisticated, premeditated deception to assist Victoria Police. It is difficult to conceive of a more comprehensive abandonment of a lawyer’s responsibilities than to inform on a client to police; to not discourage a client on bail for serious drug offences from committing further like offences; to orchestrate the arrest of the client with police; to then act for the client after arrest, encouraging them to confess and implicate others and putting their safety and that of their family at risk; and to then ensure that this information was not disclosed, as it should have been, to the prosecution, the client, the courts and lawyers dealing with the scores of resulting charges against other individuals.

The evidence before the Commission as to the insight of Ms Gobbo and her handlers into these events suggests both an appreciation of the impropriety involved and an inability or unwillingness to grapple with it. On one occasion when she and her handler and her controller discussed the implications of what she was doing with respect to Mr Cooper, she said:

… the whole [Mr Cooper] stuff thing is gunna cause a big problem. You know, I don’t—I would not ever ask someone like him what they’re doing, ever. I would never be exposed to it, he’d never tell me about it and I would never ask. And if he tried to tell me or started a conversation about it I’d cut him off. It’s one thing to make assumptions about what people are doing, but it’s another thing to be standing up in a court saying, ‘This person has done this and hasn’t done that,’ and whatever …

… The [Mr Cooper] thing is gunna cause me big drama, because I can ask him anything and he’ll tell me, but I don’t wanna know his stuff. I mean, I—it might be useful to you but I don’t wanna know it from the point of view of …³⁸⁵

Mr White then suggested that she could ‘withdraw from representing him’ because of ‘a conflict like that’, ‘for the greater good of telling us’.³⁸⁶ Ms Gobbo replied:

MS GOBBO: Oh, that’s, true, but why on earth would I do that?

MR SMITH: Does he pay?

MS GOBBO: He actually does pay, yeah, his solicitor does. Mm.³⁸⁷

Later, before Mr Cooper’s arrest, her handlers again raised the issue of her conflict. They received a telling response:

MR GREEN: I have got a—a bit of a concern, though. If [Cooper] was to get arrested...

MS GOBBO: Yeah.

MR GREEN: … he’s going to be calling you, isn’t he?

MS GOBBO: Yes. He will not call anyone else.

MR GREEN: How’s that going to work?

MS GOBBO: What do you mean?

MR GREEN: Well, how are you going to be able to represent him?

MS GOBBO: What do you mean?

MR GREEN: Well, won’t there be a conflict of interest there?

MS GOBBO: What conflict? He’ll be pleading guilty. What difference does it make? ³⁸⁸

Ms Gobbo’s conversation with her handler and controller in the days leading up to Mr Cooper’s arrest was particularly illuminating:

MR WHITE: … [Mr Cooper] will be afforded every opportunity to speak to a solicitor and .......... obviously that’s gunna be you and everything will just go on as it normally would.

MS GOBBO: Mm.

MR WHITE: He would have an expectation that you’d represent him.

MS GOBBO: Yes. ³⁸⁹

…

MR WHITE: How does that work?

MS GOBBO: If?

MR WHITE: If you represent him whilst at the same time you’ve been instrumental in his apprehension.

MS GOBBO: Yeah … that’s one of the things that keeps me up at night.

MR WHITE: Have you got a plan how you’re gunna manage that or—

MS GOBBO: What’s the big deal? You’re not gunna tell him …

MR WHITE: No, we’re not but …

MS GOBBO: Nor am I. I don’t really feel like being dead this month …

MR WHITE: Yeah, see, I’m not—I’m not thinking that you’re gunna be compromised. I’m just wondering …

MS GOBBO: How I’m gunna deal with it myself.

MR WHITE: Ethically …

MR GREEN: Or practically.

MR WHITE: It’s the same—it’s the same issue because he’s not gunna find out I suppose but …

MS GOBBO: Morally [is] what you’re asking.

MR WHITE: Yeah, and it’s a problem more for you than us but …

MS GOBBO: You don’t care.

MR WHITE: Well …

MS GOBBO: Like, you care about what I’m thinking but you don’t care about [it] from his point of view. True?

MR WHITE: Well, we care about the position that we are putting you in. Granted you’re the—you’re the master of your own destiny ...³⁹⁰

…

MR WHITE: Look, purely a technical point of view, if—if you talk to [Mr Cooper] and give him legal advice before he’s interviewed and he makes a confession—and I’m speaking theoretically here, right.

MS GOBBO: Yeah.

MR WHITE: OK. I’m not saying this is gunna happen.

MS GOBBO: Mm’hm.

MR WHITE: But wouldn’t—wouldn’t it be the case down the track that a defence barrister could argue, well, the advice that he got prior to participating in the record of interview was not impartial because it was done on behalf of the police by a person that was acting for the police.

MS GOBBO: Who in the fuck is gunna say that?

MR WHITE: It’s a theoretical question, right. It’s not—I’m trying to …

MS GOBBO: … anybody say that? Why would anyone say that?

MR WHITE: No-one’s gunna say that but I’m trying to understand what—the conflict of interest area is not something that we ever deal with, all right, for you and it’s—I mean, some people could put up an argument that a person who is a barrister perhaps could never help the police and still represent the person that she’s helping the police with. So I’m just trying to get my head around this. Could you—maybe it’s even pointless talking about it because you might actually think I’m going ...

MS GOBBO: Probably but what’s the real point?

MR WHITE: Forget it. I’m just—…

MS GOBBO: No, no, no, what’s the real point?

MR SMITH: Just the general ethics of the whole situation.

MS GOBBO: The general ethics of all of this is fucked.³⁹¹

These exchanges suggest that Ms Gobbo and her handlers knew that what they were doing was unethical and unprofessional but were unwilling to stop. As a lawyer, Ms Gobbo must have known her behaviour was wrong and sometimes articulated this, conceding, for example, that her activities with Mr Cooper ‘keep her up at night’. But at other times she seemed to try to justify her behaviour by self-interested allusions to Mr Cooper paying his legal bills, fears for her safety, or ironic pretences of ignorance (‘What conflict? … What difference does it make?’). Her handlers and controllers seemed unable or unwilling to confront her directly and set firm boundaries. Instead, they sought to protect their position by tentatively approaching discussions on the topic as a ‘purely technical’ point; or as an issue for Ms Gobbo to navigate alone, outside their control or responsibility (‘Have you got a plan[?]’; ‘[I]t’s a problem more for you than us’; ‘[Y]ou’re the master of your own destiny’). Their exchanges suggest they were enabling each other to avoid confronting the problem they jointly created.

In her evidence to the Commission, Ms Gobbo finally accepted publicly that she was aware of the objectives of Operation Posse in relation to Mr Cooper;³⁹² that she worked with Victoria Police to achieve those objectives by insinuating herself into his life to inform to police about his legal issues, activities, vulnerabilities and associates;³⁹³ and that this was ‘improper’,³⁹⁴ ‘wrong’³⁹⁵ and ‘a huge ethical problem’.³⁹⁶ She expressed guilt about the events of 22 April 2006, volunteering that her conduct ‘potentially’ had a tendency to pervert the course of justice and that, on that occasion, she effectively acted as an agent of police.³⁹⁷ She accepted too that acting for Mr Cooper after he was charged was wrong.³⁹⁸ Astoundingly, she did not accept that her shameful conduct disentitled her to the legal fees she charged him, saying ‘I did… what I said I was going to do’ for him.³⁹⁹

Despite that denial of responsibility and the passage of time, past clients who wrongly believed she was acting in their best interests rather than in the interests of Victoria Police may yet bring civil claims relating to legal fees paid to Ms Gobbo, as the ripple effects of her conduct as a human source for Victoria Police continue to reverberate throughout the justice system.

Case study: Ms Gobbo’s representation of Mr Zlate Cvetanovski

As referred to above, Counsel Assisting rightly identified 26 people who may have received convictions based upon Mr Cooper’s evidence, one of whom was Mr Cvetanovski.

On 26 April 2006, Mr Cvetanovski was arrested as part of Operation Posse and Ms Gobbo acted as his lawyer.⁴⁰⁰ In April 2008, he was charged with trafficking a large commercial quantity of methylamphetamine.⁴⁰¹ The prosecution case alleged that he was involved with Mr Cooper in manufacturing methylamphetamine in Preston and Strathmore as part of the ‘Mokbel crime syndicate’.⁴⁰² In July 2011, Mr Cvetanovski was convicted by a jury verdict on this trafficking charge.⁴⁰³ The evidence of Mr Cooper was central to this case, with the trial judge stating, ‘Clearly [Mr Cooper’s] evidence was the pivotal evidence in the trial and the jury could not have convicted [Mr Cvetanovski] if they did not accept his evidence beyond reasonable doubt’.⁴⁰⁴

On 13 April 2012, Mr Cvetanovski was sentenced to 10 years’ imprisonment on this trafficking charge.⁴⁰⁵

In 2017, Mr Cvetanovski commenced an appeal against his conviction, arguing that there was a substantial miscarriage of justice in his case because Ms Gobbo’s role as a human source was not disclosed to him. Mr Cvetanovski argued that this non-disclosure meant he was unable to challenge the admissibility of evidence, unable to properly test Mr Cooper’s evidence, and he was unaware of Ms Gobbo’s breach of professional duties owed to him as his lawyer.⁴⁰⁶

After serving nearly a decade in prison, Mr Cvetanovski was released on bail in May 2020 pending the outcome of his appeal.⁴⁰⁷ On 30 October 2020, the Court of Appeal allowed his appeal, set aside his conviction and entered a judgement of acquittal.⁴⁰⁸

In their reasoning, the Court of Appeal described Ms Gobbo’s involvement with Mr Cooper as follows:

At the time of [Mr Cvetanovski’s] arrest in April 2006, Ms Nicola Gobbo (then a member of the Victorian Bar) acted as his legal adviser. At that time, unbeknown to [Mr Cvetanovski], Ms Gobbo was a registered police informer; was acting as Mr Cooper’s legal adviser; and had persuaded Mr Cooper to co-operate with police and incriminate [him].

Throughout 2006, Ms Gobbo had an extremely close personal relationship with Mr Cooper. She provided him with moral support, conducted welfare checks and made requests to Victoria Police to look after him.

In the course of 2006, Ms Gobbo and Victoria Police provided various forms of financial assistance to Mr Cooper whilst he was in custody. This included regular payments into his prison canteen fund, as well as one-off payments to him.⁴⁰⁹

The DPP conceded that the failure to disclose information about the payments made to Mr Cooper by Victoria Police and Ms Gobbo resulted in the jury being unable to make a proper assessment of Mr Cooper’s credibility. Mr Cvetanovski was unable to properly interrogate Mr Cooper, relevant police officers or Ms Gobbo about the nature, circumstances and extent of the payments or to undertake further investigations and conduct further cross-examination.⁴¹⁰

At 30 October 2020, Mr Cvetanovski was appealing his other drug and deception convictions on grounds concerning Ms Gobbo’s involvement in his case.

Counsel Assisting submitted that Ms Gobbo’s improper conduct went beyond her involvement with Mr Cooper. They submitted that Ms Gobbo provided extensive information about Mr Cvetanovski to Victoria Police.⁴¹¹ One noteworthy example is when Ms Gobbo provided Mr Cvetanovski’s phone number to her handler on 8 September 2006.⁴¹² This was put in an Information Report and then the fact that Ms Gobbo provided this information to police was relied upon in an application to intercept Mr Cvetanovski’s phone.⁴¹³ A warrant was granted on 18 December 2006⁴¹⁴ and the resulting evidence was used (in part) in successfully prosecuting Mr Cvetanovski for offences related to fraudulent loan applications.⁴¹⁵ Counsel Assisting rightly submitted that intelligence from Ms Gobbo was used by police in successfully applying for at least five search warrants and at least one other telephone intercept warrant targeting Mr Cvetanovski.⁴¹⁶

Giving Victoria Police Mr Cvetanovski’s phone number is a neat example of how Ms Gobbo’s conduct enabled police to gather valuable evidence and the resulting detrimental impact on the interests of her clients.

Case study: Ms Gobbo’s representation of Mr Tony Mokbel

Ms Gobbo and Mr Mokbel first met in the 1990s when she was acting for Law Firm 1.⁴¹⁷ Ironically, she was called as a prosecution witness against him when he was charged for giving false evidence in support of his brother, Mr Horty Mokbel’s application for bail.⁴¹⁸

Ms Gobbo began representing and advising Mr Mokbel around January 2002.⁴¹⁹ At various times between 2002 and 2006 she met with him and appeared for him in court.⁴²⁰ In 2006, she was his junior counsel in a trial concerning cocaine importation offences.⁴²¹ Though she did not appear for him in court after this, she continued to give him legal advice and he regarded her as his lawyer.⁴²²

As was Ms Gobbo’s custom, her relationship with Mr Mokbel and other members of his family was personal as well as professional. The DPP submitted that Ms Gobbo’s blurring of her professional and personal relationships makes it difficult to determine the existence and duration of any lawyer–client relationships Ms Gobbo had, including with Mr Mokbel.⁴²³ The Commission acknowledges this difficulty but for each of these case studies in this report, has sought to confine findings about such matters to those that are supported by the evidence it has received.

Operation Plutonium, relating to the importation of cocaine, was one of four police operations that culminated in Mr Mokbel being convicted or pleading guilty to drug-related offending.⁴²⁴ The others were:

• Operation Orbital—AFP investigation concerning incitement to import
• Operation Quills—Victoria Police investigation concerning the purchasing of chemicals and drug manufacturing equipment, to manufacture MDMA
• Operation Magnum—Victoria Police investigation concerning the large-scale manufacture and distribution of MDMA.⁴²⁵

During the Operation Plutonium trial in March 2006, Mr Mokbel absconded and fled Australia.⁴²⁶ He was convicted in his absence and later apprehended in Greece and extradited to Australia in May 2008 to serve his sentence.⁴²⁷

In April 2011, Mr Mokbel pleaded guilty to charges arising from Operations Orbital, Magnum and Quills.⁴²⁸ On 3 July 2012, he was sentenced to 30 years’ imprisonment with a non-parole period of 22 years.⁴²⁹

Mr Mokbel was the subject of other investigations for criminal and particularly drug-related activities, including Operations Matchless, Landslip, Kayak and Spake. He pleaded guilty to charges arising out of Operations Orbital, Magnum and Quills, in large part because doing so resulted in his prosecutions arising from the other operations being discontinued.⁴³⁰

Ms Gobbo provided Victoria Police with information about Mr Mokbel before and after her third registration as a human source in September 2005. For example, Mr Bateson recorded in his diary that from May to August 2005, she provided intelligence about Mr Mokbel’s relationship with his solicitor, Solicitor 2. In effect, she alleged that Solicitor 2 was complicit in some of Mr Mokbel’s criminal activities and in facilitating his culpable communications with associates including Mr Williams.⁴³¹ Ms Gobbo also told police that Mr Mokbel was pressuring her to ensure that others she was acting for during this time did not cooperate with police so as to avoid any detriment to Mr Mokbel.⁴³²

Ms Gobbo claimed that part of her motive in becoming a human source was to distance herself from Mr Mokbel and his ‘crew’ and to undermine their interests.⁴³³ She said she wanted Mr Mokbel to be ‘in a position to never get bail’.⁴³⁴ Reflecting on these motivations at a later time, she told her handlers that she was frustrated at the influence Mokbel and his crew were able to wield and their ability to ‘get away with’ criminal activities.⁴³⁵

From the time that she was registered as a human source, she provided extensive information to Victoria Police, such as Mr Mokbel’s addresses,⁴³⁶ contact numbers,⁴³⁷ vehicles,⁴³⁸ code names,⁴³⁹ code words, and other information and details about him his family and his associates.⁴⁴⁰ She gave her opinion as to whether his associates, some of whom were also her clients, were likely to cooperate with police.⁴⁴¹ She also provided extensive information about Mr Mokbel’s finances,⁴⁴² particularly to the Purana Taskforce, which sought to target the Mokbel family’s assets to undermine the cartel.⁴⁴³ When she acted for him at the Plutonium trial, she gave police her views about Mr Mokbel’s prospects of acquittal,⁴⁴⁴ his attitude to pleading guilty,⁴⁴⁵ and defence strategies, including names of potential witnesses⁴⁴⁶ and whether Mr Mokbel was likely to give evidence.⁴⁴⁷

When Mr Mokbel fled Australia, Ms Gobbo remained in contact with him and his family and shared details of that contact with police.⁴⁴⁸ She assisted Mr Mokbel with his extradition proceedings,⁴⁴⁹ at the same time feeding police information about those proceedings, which police then used against Mr Mokbel.⁴⁵⁰ She provided Victoria Police with information about the AFP investigations relating to Mr Mokbel before they could acquire it through legitimate channels.⁴⁵¹ At the same time, she was acting for numerous people who, with her assistance, gave information or evidence against Mr Mokbel.⁴⁵²

Ms Gobbo’s conduct likely violated her professional legal obligations to Mr Mokbel. Her claim that she was motivated to assist police because she was affronted by Mr Mokbel’s criminal activities is no excuse for her behaviour. There are very confined circumstances in which a breach of legal professional privilege or confidentiality might be warranted, such as where the breach is necessary to prevent serious harm to someone. As noted, if a lawyer felt compelled for legitimate legal reasons to breach privilege or confidentiality and to report behaviour to the authorities, the lawyer would need to immediately cease acting for the client, not continue as Ms Gobbo did as a human source providing information against them.

Our society does not tolerate criminal behaviour but provides that those charged with criminal offences are innocent until proven guilty beyond reasonable doubt after a fair trial according to law. Those practising as criminal lawyers, through training and experience, understand the ethical obligations and boundaries that ensure they can act in their clients’ best interests while meeting their responsibilities to the court and the administration of justice.

The criminal justice system could not function if lawyers took on the role of deciding if clients deserved to be informed on to police, in breach of their professional obligations to those clients and the administration of justice. If Ms Gobbo felt unable to cope with Mr Mokbel’s alleged criminal activities, the appropriate course was to stop acting for him. Despite the excuses offered, she could have easily used her significant health issues as a circuit breaker to cease acting for Mr Mokbel and other high profile criminal clients, taken an extended break and rebuilt a career in a different area of law or in a different location. This would have required some hard work and courage but Ms Gobbo was not short of either. It would have been easier, less stressful and safer than the duplicitous and dangerous course upon which she embarked over many years.

There are indications that sometimes Ms Gobbo’s motive in informing on Mr Mokbel may have been more personal than she claimed. Ms Gobbo stated that in around October 2004, he began spending more time with Solicitor 2 and less time with her, and she was unhappy about this.⁴⁵³ She began providing information to police about Solicitor 2 at this time.⁴⁵⁴

Mr Bateson told the Commission that he considered her motives to be partly due to her ill will towards Solicitor 2.⁴⁵⁵ Ms Gobbo, true to form, continued to provide information about Solicitor 2 even when representing Solicitor 2 after they were charged with various offences.⁴⁵⁶ That Ms Gobbo’s conduct as a human source might have been motivated in part by personal dislike of another legal practitioner suggests a particularly troubling character flaw. Once again, her improper conduct not only affected her clients, but also other members of the profession.

Given Mr Mokbel’s current appeal, and the Commission’s obligation not to prejudice any judicial proceedings, this case study is necessarily succinct, even though his proceedings—and Ms Gobbo’s involvement in them— are somewhat complex.

Figure 7.3 provides an overview of the various police operations targeting Mr Mokbel, the role Ms Gobbo played and the kinds of information she provided to Victoria Police.⁴⁵⁷

Figure 7.3: Ms Gobbo’s involvement in providing information relating to Mr Antonios (Tony) Mokbel

Case study: Ms Gobbo’s involvement in the ‘Tomato Tins’ drug-trafficking syndicate cases

Ms Gobbo’s involvement with the so-called ‘Tomato Tins’ drug-trafficking syndicate serves as a further example of the wide-ranging consequences of her improper conduct towards the latter period of her work as a human source.

Between February 2008 and August 2012, 33 people were arrested and charged with drug-related offences as part of three connected police operations:

• Operation Bootham Moko—AFP operation that targeted a conspiracy to import a very large quantity of MDMA hidden in tomato tins shipped from Italy to Australia⁴⁵⁸
• Operation Inca—joint operation between Victoria Police, the AFP, the then Australian Crime Commission, Australian Customs and the Australian Taxation Office targeting drug and money-laundering offences⁴⁵⁹
• Operation Cardinia—AFP investigation into MDMA trafficking.⁴⁶⁰

On 28 June 2007, a large quantity of MDMA was intercepted by Australian authorities.⁴⁶¹ It was at the time the largest shipment of MDMA ever seized worldwide.⁴⁶² Numerous people were arrested, charged and convicted through Operation Bootham Moko, including Mr Pasquale Barbaro, who was found to be at the ‘apex’ and ‘centre’ of the attempted importation;⁴⁶³ Mr Karam, who was said to lead a group that attempted to take possession of the ecstasy tablets supplied and Mr Barbaro’s ‘major wholesale customer’;⁴⁶⁴ and six other associates of Mr Barbaro and Mr Karam.⁴⁶⁵

Operations Bootham Moko, Inca and Cardinia, and the offending they targeted, had various causal and evidentiary connections. It is important to note that the offending targeted by Operations Inca and Cardinia occurred after the failure of the Tomato Tins conspiracy and the seizure of the MDMA; that at least some of it was seemingly prompted by a desire—particularly on Mr Barbaro’s part—to recoup losses and repay debts incurred through the failure of the importation;⁴⁶⁶ and that this offending was detected and prosecuted partly through the inroads made during Operation Bootham Moko.⁴⁶⁷

Figure 7.4 provides an overview of the people charged in the Tomato Tins proceedings, and specifically which operation they were charged under.⁴⁶⁸

Figure 7.4: Involvement of Ms Gobbo with people charged in the ‘Tomato Tins’ drug-trafficking syndicate, June 2007 to August 2008

Ms Gobbo provided information to Victoria Police from and about people targeted by these operations. This was because she was acting for several of them. She also acted for people charged on the basis of evidence that she helped police obtain, despite acknowledging that doing so would leave her ‘morally, ethically and legally conflicted’.⁴⁶⁹ The cases of at least 32 people arising out of these operations may have been affected by her improper conduct.⁴⁷⁰

Ms Gobbo’s representation of Mr Rob Karam

Ms Gobbo’s representation of Mr Rabie (Rob) Karam was particularly noteworthy. She had a long association with him, beginning in 2005.⁴⁷¹ At times between then and 2007, she acted for him in relation to other federal drug charges, and she was junior counsel at his trial in 2007.⁴⁷² According to her, their relationship was also social and personal, and Mr Karam had grown ‘used to her being around and [would] start talking about other things’.⁴⁷³

She evidently used that closeness to the advantage of police. She began providing information about him to police from the beginning of her third period of registration as a human source, including while appearing for him at trial.⁴⁷⁴ She provided information about him earlier in the context of Operation Posse, given his association with Mr Cooper and the Mokbels.⁴⁷⁵ The information she provided, the value of which is disputed by the AFP,⁴⁷⁶ included:

• details of the shipment of the MDMA from Italy, both before and after it took place⁴⁷⁷
• details of meetings associated with the shipment,⁴⁷⁸ including meetings attended by Mr Karam, Mr Barbaro and others, over the course of several days while they were staying at the Pacific International Apartments in Melbourne⁴⁷⁹
• telephone numbers of Mr Karam and others⁴⁸⁰
• ongoing intelligence permitting the operations to continue undetected by their targets.⁴⁸¹

As early as March 2006, she relayed information to her handlers about Mr Karam’s intention to participate in a drug shipment from Italy.⁴⁸² Later that year, she provided information about Mr Karam’s interactions with an Italian national concerning a future importation of ecstasy.⁴⁸³

On 5 June 2007, during Mr Karam’s trial, Ms Gobbo gave Victoria Police photocopies of documents Mr Karam had given her for safekeeping, explaining that they related to ‘shipping containers being imported’ by an associate.⁴⁸⁴ One of the documents was a bill of lading, a legal document issued by someone sending goods by sea to the shipper, listing the type and quantity of the goods and other details. The bill referred to tinned tomatoes being imported from Italy and included the name of the vessel, the container number, the port of origin and the departure date. The MDMA was in the tomato tins. Ms Gobbo also helped her handlers translate the document from Italian to English.⁴⁸⁵

After receiving this information, Victoria Police devised a plan to disclose the information about the container to various other law enforcement agencies, such as the AFP, without revealing that Ms Gobbo was the source of that information.⁴⁸⁶ Further, Victoria Police gave Ms Gobbo tasks connected to the importation, which she was pleased to accept.⁴⁸⁷ For example, a day after the shipment was intercepted, they asked her to find out whether Mr Karam was suspicious about police involvement,⁴⁸⁸ and to provide ongoing updates about his movements and their communications.⁴⁸⁹ In July 2007, Ms Gobbo set up a meeting with Mr Karam and his alleged co-conspirator, Mr John Higgs, so that police could record them discussing the shipment.⁴⁹⁰ She was also tasked with misleading Mr Karam so as to conceal the surveillance and the interception of the shipment.⁴⁹¹ Remarkably, Victoria Police continued tasking Ms Gobbo, even after telling her that they would not do so and saying they wanted her to take a passive role.⁴⁹²

The bill of lading was not the only information Ms Gobbo volunteered to Victoria Police at this time. For example, in addition to giving them the shipping documents, she also provided the identities and contact details of Mr Karam’s associates,⁴⁹³ including Mr Barbaro,⁴⁹⁴ and details of a consignee for the shipment.⁴⁹⁵ She provided contact details from Mr Karam’s phone, which she searched when he left it charging in her chambers.⁴⁹⁶ She also reported on conversations about the tomato tins that she overheard when in Mr Karam’s company.⁴⁹⁷ Significantly, on 28 June 2007 she told her handlers that Mr Karam and Mr Higgs were going to visit their co-conspirators who were booked to stay for a week at the Pacific International Apartments in Melbourne.⁴⁹⁸

Operation Bootham Moko was led not by Victoria Police but by the AFP. Nonetheless, Victoria Police and Ms Gobbo considered that her role was important to its success. For example, in a meeting with her in December 2008, Mr White stated that, if not for her, the tomato tins would never have come under suspicion.⁴⁹⁹ In seeking financial compensation from Victoria Police years later, Ms Gobbo listed the Tomato Tins proceedings among the most significant work she had done as a human source.⁵⁰⁰ In August 2008, when most arrests for these operations occurred, she asked her handlers why she was not getting any credit, a common theme throughout her long dealings with police as a human source.⁵⁰¹

Ms Gobbo and Victoria Police were plainly aware that she would be conflicted in representing others arrested and charged as part of Operations Bootham Moko, Inca and Cardinia. Yet, true to form, she acted for at least 10 of the 33 people subsequently arrested. One such person was Mr Barbaro.

Ms Gobbo’s representation of Mr Pasquale Barbaro

Even before representing Mr Barbaro, Ms Gobbo gave information about him to police. For example, she indicated that he was controlling the importation,⁵⁰² identified him from a surveillance photograph⁵⁰³ and told police about meetings he was attending.⁵⁰⁴ The surveillance on the Pacific International Apartments may have played a role in Mr Barbaro becoming a person of interest to police.⁵⁰⁵ It is possible that the information Ms Gobbo provided to police about the planned stay of Mr Karam and his associates at the apartments played a role in the decision to monitor those apartments.⁵⁰⁶ The AFP claimed that the information Ms Gobbo provided to Victoria Police was not used to support applications for listening device warrants, other than the interception of the Tomato Tins shipment, which the AFP now understands is alleged to have occurred in part due to the provision of the bill of lading to Victoria Police.⁵⁰⁷ However, it may be as Counsel Assisting suggest,⁵⁰⁸ that they were not fully aware of Ms Gobbo’s role.⁵⁰⁹ It is not possible on the information before the Commission to resolve this issue; it may, in any event, be an issue that arises in ongoing or future legal proceedings. Once she was representing Mr Barbaro, Ms Gobbo wasted no time in providing Victoria Police with information about him; including, for example, in relation to overheard conversations about firearms and money at his residence.⁵¹⁰

It appears that Mr Barbaro remained unaware of any role Ms Gobbo may have had in bringing him or his activities to the attention of police.⁵¹¹ As mentioned above, he was convicted not only in relation to the tomato tins importation, but also separate and subsequent offending that appears to have been prompted by the financial failure of that importation.⁵¹²

Other potentially affected people

Nine others convicted of involvement in these activities fall into similar circumstances as Mr Barbaro.⁵¹³ There are two additional people, Mr Higgs and Mr Francesco Madafferi, where the question of whether Ms Gobbo represented them is contested.

Counsel Assisting submitted that Ms Gobbo visited Mr Higgs on two occasions after he was arrested but concluded that she probably did not represent him.⁵¹⁴ Mr Higgs, however, submitted that Ms Gobbo represented him while she was an employee solicitor with Solicitor 1.⁵¹⁵ Counsel Assisting acknowledged Mr Madafferi’s submission that she represented him but was unable to find documentary evidence to support this.⁵¹⁶

On the material it has received, the Commission is unable to conclude whether Ms Gobbo represented Mr Higgs or Mr Madafferi. The Commission also notes that this may be an issue in dispute in current or future court proceedings.⁵¹⁷

Beyond the people for whom she acted and/or informed on to police, up to 20 others charged through Operations Bootham Moko, Inca and Cardinia, although not represented by her at any stage, may have been convicted in large part on evidence she procured or helped to procure.⁵¹⁸ If an appeal court was satisfied that the procurement of that evidence was improper or unlawful, and it should not have been relied on or resulted in an unfair trial, it is possible that their cases may also be affected by Ms Gobbo’s conduct as a human source.

The wider implications of Ms Gobbo’s conduct

Consistent with term of reference 1, in this chapter the Commission has focused primarily on the potential effect of Ms Gobbo’s conduct on particular legal proceedings. Term of reference 6, however, empowered the Commission to consider other matters necessary to satisfactorily resolve matters in the other terms of reference.

The Commission’s inquiry has shed light on the actions of Ms Gobbo, and their possible consequences for individual cases. It is also important for the Commission to consider the cumulative impact and broader repercussions of this improper conduct. At its worst, it was a sustained and systemic violation of individual rights and of the criminal justice system. Conduct of this kind has the potential to effect lasting harm, not just on individuals, but on the culture, practices and institutions that allow the courts and the criminal justice system to function fairly as an essential part of democratic government.

In the following sections, the Commission considers some of the wider implications of Ms Gobbo’s conduct in relation to:

• her clients and related proceedings
• the wider justice system
• the legal profession
• Victoria Police.

The broader effects of Victoria Police’s conduct and the systemic factors that gave rise to it are considered in Chapters 8 and 9.

The effect of Ms Gobbo’s conduct on her clients and related proceedings

This chapter has set out how Ms Gobbo’s conduct has potentially affected a large number of legal proceedings. It is important to consider, in practical terms, what this might mean. The cases of Mr Orman and Mr Cvetanovski, because they have already been the subject of a successful appeal, are useful examples. Ms Gobbo’s conduct resulted in them each spending about a decade of their lives in prison, having been convicted at trials marred by substantial miscarriages of justice. Others who may ultimately succeed in appeals against conviction could still be in prison as this report is published, serving lengthy sentences based on convictions after unfair trials. That long-term loss of liberty is something for which monetary damages can never truly compensate.

In the cases of both Mr Orman and Mr Cvetanovski, it was open to the Court of Appeal to order a re-trial but the prosecutor fairly conceded that this would be unjust given the time they had spent in prison and the Court accepted those concessions. The lengthy passage of time since their trials meant not only that they had already served a great deal of the sentence imposed, but also that there may be difficulties in preparing evidence for any re-trial. Trials commonly rely on witnesses and, in turn, on memories. The events described in this chapter occurred years, sometimes decades ago. Memories may have faded, and witnesses may have disappeared or died. Records, too, may have been destroyed. As a result, the opportunity for the state to try someone fairly may be permanently lost. These issues are likely to arise in other potentially affected cases.

Even where re-trials are possible, that course is not without great cost. A re-trial means once again marshalling the time and resources of prosecutors, defence lawyers, courts, judges and jurors. It requires witnesses, and sometimes victims of alleged offending, to once again give evidence—and as part of that, to relive what may be painful or difficult memories, and to be subject to cross-examination and potentially to public and media attention. This in turn impacts the lives of victims, witnesses, accused persons and their families.

The same factors that may make a re-trial problematic also pose a challenge for people seeking to appeal their convictions. A person who wishes to appeal against their conviction or finding of guilt must offer an evidentiary basis to support their appeal. In some cases, that may prove difficult. Again, memories fade, witnesses become unavailable and records may have been lost or destroyed—or may not have been kept in the first place (whether to conceal misconduct or for more prosaic reasons). It may simply be difficult to establish—years later, and having regard to complex and nuanced circumstances—that were it not for Ms Gobbo’s misconduct, a person would not have been convicted. The appeals process may not operate in every case to remedy the effects of Ms Gobbo’s conduct.

Further, an emphasis on individual cases can distract from the cumulative impact of Ms Gobbo’s misconduct. Reference has been made in this chapter to the chain reaction of Ms Gobbo’s misconduct; that is, the way her conduct and that of Victoria Police, acting in concert, persuaded one person to give information about their associates leading to the prosecution of another for whom Ms Gobbo then acted and persuaded to cooperate with police and implicate others, and so on. Figure 7.5 illustrates this effect and uses different coloured lines to demonstrate who Mr McGrath, Mr Cooper and Mr Thomas (pseudonyms) provided evidence against.⁵¹⁹

Figure 7.5: Impact of Ms Gobbo’s involvement with Mr McGrath, Mr Cooper and Mr Thomas (pseudonyms)

There are also those, some of whom made submissions to the Commission, who may have been affected by the conduct of Ms Gobbo as a human source in that they were investigated or charged but were never convicted. These people may have suffered considerable resulting stress, financial and reputational loss,⁵²⁰ and sometimes periods of imprisonment on remand.⁵²¹ There are some who believe that legitimate criminal investigations, such as the murders of Mr Terrence (Terry) Hodson, Mrs Christine Hodson and Mr Shane Chartres-Abbott were derailed because of Ms Gobbo’s conduct as a human source, with concerning impacts for families of victims as well as for the conscientious investigators who were unaware of Ms Gobbo’s clandestine informing to other parts of Victoria Police.⁵²² While acknowledging these cases, for the reasons explained earlier in this chapter, the Commission has not included them in its inquiry into the number of, and extent to which, cases may have been affected by the conduct of Ms Gobbo as a human source.

In short, where cases may be affected by Ms Gobbo’s conduct, these potential effects may be very damaging; and the damage done may be irreparable.

The effect of Ms Gobbo’s conduct on the justice system

The case studies in this chapter are replete with examples of Ms Gobbo’s conduct in her dual role as a legal practitioner and human source adversely affecting both legal processes, and the work of other people within the criminal justice system. For example, Ms Gobbo’s collusion with police in acting for Mr Thomas hindered Mr Lovitt’s efforts to act in Mr Thomas’ interests at his committal and to advise Mr Thomas of his prospects at trial. Later, Ms Gobbo’s relationship with police undermined Mr Richter’s efforts to represent Mr Orman.

Ms Gobbo concealed her activities as a human source, and her role in obtaining evidence, not only from her fellow defence counsel but also from prosecutors and the courts. That in turn frustrated the ability of prosecutors to fulfil their obligations to accused persons, including the fundamental duty to provide them with all relevant evidence, and the ability of courts to ensure the fairness of legal proceedings, properly apprised of the relevant issues.

As has been addressed, Ms Gobbo’s conduct potentially affected not just trials, but bail hearings, committals, mentions and other proceedings. These are time-consuming, resource-intensive, sometimes complex, critically important processes by which justice is administered. They lead to decisions about the liberty of people accused of crimes, the evidence that will be admitted and excluded at trials, the charges that people will face and the defences that will be open to them. When these processes are subverted, the criminal justice system is corrupted and the resulting loss may not be calculable or compensable.

The legal process, and the interactions between people representing different parts of that process, rely to some extent on good faith. For example, a court assumes that the prosecution has complied with its duty of disclosure and provided all relevant evidence to the defence. Even when the defence challenges that assumption, courts are not inquisitorial bodies and their powers, as well as their time and resources, are constrained. They depend on legal practitioners as officers of the court to put the integrity of the legal process above their clients’ interests and certainly their own. Equally, lawyers themselves must be able to trust that other practitioners follow their professional obligations. The criminal justice system relies on the lawful and ethical conduct of legal practitioners. Ms Gobbo’s gross breaches of her professional obligations undermined the administration of justice and resulted in unfair convictions. This has severely shaken public confidence in the integrity of Victoria’s criminal justice system.

The effect of Ms Gobbo’s conduct on the legal profession

Ms Gobbo’s conduct has also harmed the legal profession institutionally. As noted in Chapters 2, 4, 5 and 15, legal practitioners are subject to professional and ethical rules and obligations, including when appearing in court, over and above the ordinary laws that bind all of us.

Those rules include the obligation to avoid conflicts of interest; to preserve and protect legal professional privilege; and particular duties to the court and to other legal practitioners. As outlined below, Ms Gobbo’s conduct resulted in her being struck off the Supreme Court’s Roll of Legal Practitioners.

When the Commission first commenced its work, Ms Gobbo, although not holding a practising certificate since 2013–14, concerningly remained on the Roll of Legal Practitioners despite the High Court’s condemnation of her conduct in December 2018.⁵²³ The Commission therefore intended to refer the matter to the VLSB+C for consideration.

As Counsel Assisting note in their submissions, Ms Gobbo’s conduct included providing police with information about a solicitor while acting for that solicitor⁵²⁴ and withholding information from or providing misleading information to other barristers, including Mr Allen, Mr Richter and Mr Lovitt. She also made incomplete or misleading representations to the Board of Examiners and the Victorian Bar Ethics Committee.

On 7 October 2020 the VLSB+C informed the Commission that, almost two years after the High Court’s damning assessment of Ms Gobbo’s conduct, they had applied to the Supreme Court to have her name removed from the Roll. Ms Gobbo consented to this on the basis of an agreed statement of facts. On 20 October 2020 the Supreme Court made an order striking her off the Roll of Legal Practitioners.⁵²⁵

The Commission was subsequently advised that Ms Gobbo remains on the Roll of ‘retired’ barristers administered by the Victorian Bar Council and they are unable to remove her due to Ms Gobbo objecting to this course in 2013 and their constitutional limitations to remove her without her consent. The Commission was informed a constitutional amendment proposed in 2019 that would have allowed her name to be removed was not passed.⁵²⁶ The Commission considers that the Victorian Bar Council should urgently reconsider this matter.

Conduct of this kind damages the legal profession in several ways. Practitioners are expected to act in accordance with their obligations to the courts, their clients and one another. Bodies such as the VLSB+C and the Victorian Bar have powers and responsibilities aimed at ensuring that barristers and legal practitioners observe their obligations. Barristers can face consequences, including losing their right to practise law, and where an offence has been committed, criminal sanctions for breaching these obligations. But these mechanisms have limitations. Barristers are sole practitioners (that is, they practise independently) and their conduct can be difficult to oversee in the absence of trust and good faith, as Ms Gobbo’s case plainly demonstrates.

The potential for improvements to aspects of legal profession regulation following the revelation of Ms Gobbo’s conduct is discussed in Chapter 15. Most people interact with the justice system, with which they are often unfamiliar, through their legal practitioners. They rely on their lawyer, and in litigation particularly their barrister, to advise and guide them through a largely unknown and sometimes frightening process. Those charged with criminal offences and their families are often facing a difficult, stressful and potentially life-changing situation. They must be able to trust their lawyers completely, knowing they will give them competent and independent advice, explain unfamiliar aspects of the legal process, act in their best interests, and keep their confidence. If a client withholds information from their lawyer because they perceive they cannot trust them, the lawyer will be unable to act in their best interests and the system of justice would become dysfunctional.

Fortunately, the public can be assured that aberrant conduct like Ms Gobbo’s is rare in the Australian legal system and almost all lawyers astutely adhere to their professional obligations to their clients. That is of little comfort to those who have been affected by Ms Gobbo’s conduct and suffered as a result of her serious violation of trust. Her conduct has also had a wider, systemic effect. It has unquestionably undermined community confidence in barristers and the legal profession generally, particularly in Victoria. Those accused of crimes, often the most marginalised in our communities—among them young people, Aboriginal and Torres Strait Islander people, those living in poverty, those suffering from acute substance dependence and those with mental health problems—may be reluctant to seek legal representation or to speak frankly to their lawyers for fear that what they say would not be kept confidential. It would also be unfortunate if those who all too often make unwarranted criticisms of the legal profession or the justice system found vindication for their misguided attitudes in Ms Gobbo’s conduct. The standing of the legal profession and community confidence in lawyers and the entire criminal justice system has been diminished as a result of Ms Gobbo’s duplicitous conduct as a human source and criminal law practitioner.

The effect of Ms Gobbo’s conduct on Victoria Police

The Commission acknowledges the vast majority of Victoria Police officers, some of whom gave evidence, statements or submissions, are true to their oaths and affirmations of office. They recognise that police corruption is not only misusing police power for personal gain; it includes the neglect of due process to achieve a desirable result on the basis that the end justifies the means. They have all been adversely affected by Ms Gobbo’s conduct as a human source for Victoria Police.

Institutionally, too, the standing of Victoria Police and community confidence in it has been undermined by Ms Gobbo’s informing. As noted in Chapter 2, a recent Roy Morgan poll showed that the Victorian public’s confidence in the police was seriously diminished, with many respondents citing the events surrounding Ms Gobbo’s use as a human source.

Notwithstanding the acutely inappropriate nature of the relationship that developed between Victoria Police and Ms Gobbo, a degree of professional good faith between police and legal practitioners is essential to the operation of the criminal justice system. Defence counsel, practitioners and the courts need to know that police will conscientiously adhere to their disclosure obligations and answer questions concerning disclosure and other matters both in and out of court candidly and fully. Ms Gobbo’s conduct has undermined the confidence of defence counsel, prosecutors and the courts in officers of Victoria Police.

Conclusions and recommendations

Ms Gobbo’s conduct as a human source while practising as a criminal lawyer was extraordinarily wide-ranging and sustained. It demonstrated a disregard for the most basic legal professional and ethical standards of independence, integrity and the avoidance of conflicts of interest, and it potentially affected 1,011 people, as set out in Box 7.1.

This might seem an impossibly large number of cases affected. The case studies and wider discussions in this chapter, however, illustrate the cascading effects of Ms Gobbo’s misconduct.

She purported to act as a criminal defence lawyer when she was a human source acting for Victoria Police, and did not disclose this to her clients, other accused persons, the DPP or courts. She provided information to police about many clients for whom she was acting, and often their families and associates. She did so without their knowledge, in circumstances where they expected such information to be privileged and confidential. Police used this intelligence in investigating, charging and prosecuting Ms Gobbo’s clients and on occasions against others who were not her clients, and neither Victoria Police nor Ms Gobbo disclosed its irregular provenance. Incredibly, she sometimes went on to act for these newly accused persons, shamelessly charging them fees and ostensibly defending them in proceedings that may not have come about but for her conduct. At times she also informed on them and encouraged them to cooperate with police.

In this way, Ms Gobbo’s conduct compounded over years, enveloping an ever-widening group of people and potentially affecting a growing number of convictions and findings of guilt.

Ms Gobbo’s representation of all of these people was contrary both to their interests and her obligations. It has potentially corrupted legal proceedings, including criminal trials. It was at different times during this Commission and in responsive submissions suggested or implied that her conduct, or that of Victoria Police, was immaterial or excusable because the case against some accused persons was strong and/or the charges they faced were grave. That view ignores the rule of law, a fundamental premise of our criminal justice system and our democracy. Everyone, no matter how heinous the alleged crime or unpopular the accused person, is entitled to a fair trial according to law and is innocent until proven guilty by the prosecution beyond reasonable doubt. If an accused person is convicted after a trial where the prosecution has been corrupted by the conduct of a lawyer who was informing to police on her clients, any resulting conviction or finding of guilt, no matter how strong the prosecution case, is at risk of being set aside on the basis of a substantial miscarriage of justice.

The integrity of the criminal justice system, and public confidence in that system, must be upheld even in times of media and public concern about levels of violent and dangerous crime, and no matter what the charges or against whom they are brought. The rule of law requires nothing less. As the High Court recognised in AB v CD,⁵²⁸ Ms Gobbo’s conduct has ‘debased fundamental premises of the criminal justice system’. The High Court recognised that conduct of this kind does not just have the potential to affect individual rights. It debases and damages the justice system itself. It diminishes public confidence in that system, and it renders its processes vulnerable to doubt, criticism and challenge. Australia’s legal system has no tolerance for an ‘end-justifies-means’ approach to the criminal process.

The Commission again emphasises that the potential impacts of Ms Gobbo’s conduct are not merely a result of her own actions and inactions. These impacts arose by virtue of her conduct in combination with that of current and former officers of Victoria Police. This is discussed further in Chapters 8 and 9.

On the material before it, including responsive submissions, the Commission is satisfied that Ms Gobbo’s conduct should be further investigated, and a determination made as to whether there is sufficient evidence to establish the commission of a criminal offence or offences.

The Commission recommends in Chapter 17 that the Victorian Government establishes a Special Investigator with powers to investigate the conduct of Ms Gobbo and relevant conduct of current and former Victoria Police officers. The rationale for establishing a Special Investigator is discussed further in Chapter 17. In short, since it is inappropriate for Victoria Police to conduct this investigation, and the Independent Broad-based Anti-corruption Commission lacks the power to investigate Ms Gobbo’s conduct in its entirety, this course will best ensure her conduct is comprehensively and independently investigated to determine if there is sufficient evidence to bring a criminal charge or charges.

The Commission also recommends that the Victorian Bar Council considers the removal of Ms Gobbo’s name from the Bar Roll. As Ms Gobbo has already been removed from the Supreme Court Roll of Legal Practitioners, the removal of her name from the Bar Roll would have no practical effect but it would have powerful symbolic significance. It would help restore community confidence in the Victorian legal profession and particularly the Victorian Bar.

The Commission’s investigative and public reporting role in exposing Ms Gobbo’s misconduct, although not judicial, is a powerful one. The Commission has elicited a very considerable body of evidence during its extensive, largely public hearings and through the many tendered statements and exhibits, from Ms Gobbo herself, from numerous people for whom she acted, from her former colleagues in the legal profession, and from current and former officers of Victoria Police who had dealings with her. In combination, this evidence has shone a bright light on the extraordinary reach of her once hidden misconduct. Much of this evidence concerned matters previously unknown to the public and to the many people whose cases may be potentially affected. The work of the Commission will allow the community to better understand these events, empower those whose convictions or findings of guilt may be affected to make informed decisions as to any future action they may take, and provide government, the legal profession and Victoria Police with policy and practice recommendations to best ensure such events are never repeated.

Endnotes