RCMPI

Chapter 9

Victoria Police's conduct: systemic issues and causal factors

Introduction

The Victorian Government established this Commission to find out how Victoria Police came to use Ms Nicola Gobbo, a criminal defence barrister, as a human source; why it happened; and what reforms might be needed to prevent such events from recurring in the future.

In Chapter 8, the Commission discusses the conduct of current and former Victoria Police officers involved in these events. It concludes that the conduct of individual officers may have fallen short of their required duties by:

  • encouraging Ms Gobbo to act as a lawyer for certain people, or, at least, condoning her decision to do so, knowing that:
    • she was a human source and therefore not providing her clients with independent legal representation
    • she was covertly informing on them, or had previously informed on them; and/or
    • she was providing information that assisted police to obtain incriminating evidence against them
  • failing to disclose to people accused of crimes, either directly or through the Victorian Director of Public Prosecutions (DPP) or the Victorian Government Solicitor’s Office (VGSO), the existence of information or evidence that might have enabled them to challenge the admissibility of prosecution evidence on the basis that it may have been improperly or illegally obtained
  • failing to take appropriate steps to ensure that public interest immunity (PII) claims concerning disclosable evidence were determined by a court in accordance with law.1

This chapter examines some of the common themes that emerge from the Commission’s findings and discussion in Chapter 8 regarding individual failures, and the institutional factors that may have contributed to them. This is fundamental to understanding how the conduct of Victoria Police officers continued over such a long period of time, and how similar events can be avoided in the future.

In a submission to the Commission, Victoria Police contended that the conduct of its officers occurred because of reasons that are ‘primarily organisational and systemic’.2 While it accepted that individual officers ‘should have done better’ in some instances, it submitted there was a strong body of evidence that the individual officers involved in the recruitment, handling and management of Ms Gobbo did not engage in ‘knowing impropriety’.3

A group of current and former Victoria Police officers identified a long list of factors that contributed to these events, describing them in combination as ‘the perfect storm’.4 Victoria Police has also consistently emphasised to the Commission that many of the events occurred between 10 and 25 years ago and it is difficult to know with certainty what transpired.5

Against that background, this chapter focuses on several failures in organisational structures, cultures and processes that, based on the Commission’s assessment of the evidence, contributed to Victoria Police’s use of Ms Gobbo as a human source and the associated conduct of individual officers. The chapter addresses failures:

  • of leadership and governance
  • to properly identify, assess and manage the risks of using Ms Gobbo as a human source
  • to manage and supervise police officers dealing with Ms Gobbo
  • to understand the police role in the prosecution process, including failures to discharge their disclosure obligations and deal with PII claims appropriately
  • to accept responsibility for the use of Ms Gobbo as a human source and its consequences.

An organisation is the sum of its parts; it is not a separate body that functions independently of its individual employees. This is particularly so in police organisations that function according to a strict chain of command. Senior officers within Victoria Police were ultimately responsible for the organisational culture and environment that allowed the recruitment, continued use and non-disclosure of Ms Gobbo as a human source.

Senior Victoria Police officers were also responsible for the delay in instigating comprehensive internal and external reviews of what had gone wrong and how to remedy the situation.6 If the organisation, led by its senior officers, had taken appropriate action as soon as it became aware of the potential magnitude and seriousness of these events, this inquiry may not have been necessary. The delay has also made the Commission’s task more difficult. Obtaining relevant evidence to properly investigate Victoria Police’s conduct and its potential effects has been challenging due to the passage of time since the events occurred.

Although Victoria Police’s use of Ms Gobbo as a human source occurred many years ago, its repercussions are still being felt. People are still in custody, appeals are progressing through the courts, and public confidence in Victoria Police has diminished.7 The Victorian community and those directly affected by the events are entitled to know what happened and why.

The evidence of many current and former Victoria Police officers during the inquiry suggested that certain problematic organisational and cultural factors that gave rise to the events continue to exist in parts of Victoria Police.8 For these reasons, it is important to shine a light on these issues so that the organisation can take all necessary steps to address them.

This chapter outlines:

  • Victoria Police’s acknowledgement of, and apology for, its failures relating to the use of Ms Gobbo as a human source
  • the systemic failures and contributing factors that led to the use of Ms Gobbo as a human source.

One of the organisational failures the Commission has identified is Victoria Police’s delay in making disclosure to people whose cases may have been affected by its use of Ms Gobbo as a human source. It is critically important that Victoria Police continues to progress this task and fulfil its continuing disclosure obligations to potentially affected persons. The Commission therefore recommends that Victoria Police provides monthly progress reports to the Implementation Taskforce and Implementation Monitor, recommended in Chapter 17, on its fulfilment of these obligations.

Victoria Police’s acknowledgement of its failures and its apology

In its response to the submissions of Counsel Assisting the Commission, Victoria Police acknowledged that:

  • Ms Gobbo gave information to her handlers about her clients and continued to act for them while providing information about them
  • Ms Gobbo gave some information to her police handlers that was, or may have been, protected by legal professional privilege
  • the information received by Ms Gobbo’s handlers was disseminated to investigators whether or not it was tainted by her conflicts of interest and/or subject to legal professional privilege, and without adequate records of its dissemination
  • Ms Gobbo’s involvement with Victoria Police was not disclosed to prosecuting authorities in a timely way in relation to a number of accused persons.9

Victoria Police submitted that the causes of these failings were primarily systemic and organisational.10 It also contended that its officers did not properly understand the issues arising from the use of information given to them by Ms Gobbo about her clients while she was continuing to act for them, due to inadequate training and insufficient knowledge.11

In late August 2020, Victoria Police provided a responsive submission to the Commission, in which it accepted:

… without reservation that the way in which Ms Gobbo was managed as a human source in a way that resulted in a profound interference with the relationship between lawyer and client was a major failing. The consequences of that failing are resonating through the criminal justice system and will do so for many years. It has come at a very high cost to the organisation, to public confidence and to the criminal justice system.12

Victoria Police also publicly apologised to the courts, whose processes were affected by what occurred, and to the community for breaching its trust.13

Victoria Police submitted that its acceptance of responsibility is consistent with its publicly stated position after the completion of the Kellam Report in 2015 and throughout the Commission hearings.14 It contended that accepting responsibility in this way and apologising for what occurred is ‘hardly surprising and entirely appropriate’ and ‘the right thing to do’.15 It said the apology reflected the genuinely held views of Victoria Police Command, led by new Chief Commissioner Shane Patton, APM.16

Victoria Police’s apology and acceptance of responsibility is significant. Regrettably, it comes very late in the day. On 5 November 2018, in the AB v CD decision, the High Court of Australia described Victoria Police’s conduct in using Ms Gobbo as a human source as ‘reprehensible’, stating that officers were involved in ‘sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law’.17 In the wake of this decision and while the Commission was underway, many public statements made by then Chief Commissioner Graham Ashton, AM, APM suggested otherwise.

Counsel Assisting drew attention in their submissions to several public statements made by Mr Ashton between December 2018 and June 2020 and expressed concern that these statements minimised the improper conduct of Victoria Police officers by suggesting it was a result of the ‘high-pressure crime environment’ at the time. Counsel Assisting noted that the public and Victoria Police officers could interpret this as a suggestion that the conduct was justifiable.18

Mr Ashton rejected Counsel Assisting submissions.19 He submitted that his public remarks had been unfairly represented by Counsel Assisting and that a ‘proper analysis’ of his statements throughout the inquiry shows that he was ‘very careful to indicate that Victoria Police respected and was cooperating with the Royal Commission’.20 Mr Ashton contended he never said the ends of securing convictions justified the means of using Ms Gobbo as a human source, and he had acknowledged the findings in the Kellam Report and the High Court’s decision, which led to the Commission’s inquiry.21

While the Commission accepts that Mr Ashton did make public statements about cooperating with the Commission, in some media interviews his statements tended to suggest a ‘desperate times, desperate measures’ excuse for Victoria Police’s conduct. For example, on 28 March 2019, the following exchange occurred during a radio interview of Mr Ashton by Mr Neil Mitchell:

MR MITCHELL: She [Ms Gobbo] went through ’til 2010 which was after the gangland wars.

MR ASHTON: … there was significant underworld activity right through that period as well.

MR MITCHELL: It’s the old argument that the end justifies the means.

MR ASHTON: The question is what was the means and what was wrong with the means.

MR MITCHELL: The High Court had a view that it was atrocious behaviour by Vic Pol.

MR ASHTON: And the courts have a view about this all the way through … it doesn’t mean that we don’t take a slightly different view of that.

MR MITCHELL: You take a slightly different view to the High Court of Australia?

MR ASHTON: Yeah.22

Another example is the following exchange in a radio interview on 27 July 2019:

MR MITCHELL: The High Court said Vic Pol was guilty of reprehensible and atrocious behaviour. Do you still reject that?

MR ASHTON: At the time, what police had to deal with was a very difficult situation and someone was able to assist in dealing with that crime and police have taken the information from someone who was able to assist them and I think if they hadn’t done that, where would they have been in relation to some of those matters as well. So there’s a lot to be taken to account, it’s not just the matter of the fact that police used a lawyer as a human source. It’s just that there’s a lot of complexity in that police had to deal with.23

As Counsel Assisting submitted, the statements made by any organisation’s leaders help to define its values and the parameters of appropriate conduct.24 That is especially so in law enforcement agencies like Victoria Police that operate according to a strict hierarchy where more junior officers look to their leaders to set ethical values and to understand what is and is not appropriate and accepted behaviour.25

Further, Victoria Police’s role is to uphold and enforce the law so as to promote a safe, secure and orderly society.26 The Chief Commissioner is the highest ranking Victorian police officer.27 The person in that role is the chief constable and chief executive officer of Victoria Police, and is responsible for the management and control of the organisation, including its general conduct, performance and operations.28 The Chief Commissioner could and should have conveyed a clear public message about the improper and unacceptable conduct perpetrated by Victoria Police in its use of Ms Gobbo as a human source, consistent with the High Court’s decision. The public statements of Mr Ashton cited above did not do this.

Systemic failures and contributing factors

Chapter 8 demonstrates many failures in the conduct of individual officers at different levels of the organisation. This section examines the historical context relevant to their conduct and explains how cumulative missteps and missed opportunities contributed to the events that were the subject of the Commission’s inquiry.

Understanding the historical context

The Commission heard evidence about several important contextual matters that help to explain the conduct of Victoria Police, especially during Ms Gobbo’s third period of registration in 2005–09, her most prolific period of informing.

Counsel Assisting and Victoria Police agreed that the reasons for the conduct are multiple and complex.29 Victoria Police submitted that two historical matters provide critical context:

  • police corruption and misconduct identified by reviews of Victoria Police’s Drug Squad in the early 2000s, which among other things, prompted the organisation to overhaul its human source management framework30
  • the murder of Mr Terrence (Terry) Hodson and Mrs Christine Hodson in May 2004, which almost certainly occurred because Mr Hodson’s role as a human source for Victoria Police had become known, possibly among people involved in Melbourne’s ‘gangland wars’ and people he was informing on to Victoria Police.31

Victoria Police contended that these matters were important because:

  • they demonstrate that Victoria Police was motivated to establish the Source Development Unit (SDU) as a specialist unit responsible for managing high-risk human sources, and in so doing, to help end human source-related corruption within the divisions that handled drug crime investigations32
  • they explain why Victoria Police went to such lengths to protect the identity of its human sources, including Ms Gobbo.33

The Commission agrees that these historical events provide important context. Both clearly influenced the organisational framework for human source management that evolved just prior to and during Ms Gobbo’s third period of registration and affected many police officers’ mindsets, particularly about the paramount importance of protecting human sources.

The Commission also heard evidence that, during this time, Victoria Police was undergoing significant change and attempting to evolve into a more contemporary policing organisation.34 The overhaul of its human source management framework, especially in light of past police misconduct and corruption, was one aspect of this transition.35

The Commission heard from one former police officer that, after Ms Christine Nixon, APM became Chief Commissioner in 2001, she instigated significant reforms to decision-making arrangements, including establishing steering committees for major investigations. These committees were designed to encourage dialogue and debate about major decisions in investigations, and to move parts of Victoria Police away from the rigid traditional siloed command structure.36 It appears that these reforms aimed to modernise parts of the organisation and encourage more collaboration around high-risk decisions in major investigations. Unfortunately, as discussed later in this chapter, these new working arrangements did not stop poor decisions being made about the use and management of Ms Gobbo as a human source.

The Commission also heard evidence that the gangland wars in Melbourne provided important historical context.37 As discussed in Chapters 6, 7 and 8, Ms Gobbo’s third registration as a human source occurred at a time when multiple violent homicides and drug-related offences were being committed across the city and Victoria Police was under pressure from the Government, media and the community to stem the violence.38 Victoria Police’s use of Ms Gobbo as a human source was one of its key strategies in achieving this goal.

Considering the broader organisational context

In considering individual police conduct, it is necessary to consider the broader organisational context in which it occurs and to examine multiple and interrelated factors that contribute to it. Unless there is an appreciation of these factors, it is not possible to properly understand individual failures and to take meaningful institutional steps to avoid repeating the mistakes of the past.

As the Commissioner, the Honourable Justice Wood, observed in the Royal Commission into the New South Wales Police Service:

To understand police misconduct, and to develop strategies for its minimisation, the causes of wrongdoing need to be seen along a continuum of factors associated with:

  • the integrity, training and personal ethics of the individual officer
  • the attitudes encountered within the Service
  • the structure and nature of the work environment
  • the vision, management and commitment of the Service
  • the historical, socio-political and legal context of policing.39

These observations are equally applicable when analysing the conduct of Victoria Police related to its use and management of Ms Gobbo as a human source.

There have been many external reviews and inquiries undertaken into aspects of Victoria Police’s organisational culture and conduct over the past 25 years. These reviews arose in a range of different contexts and considered various issues, including but not limited to:

  • allegations of misconduct and corruption, including major cases of widespread misconduct across the organisation40 and entrenched corruption in specialist units or squads41
  • widespread sexual discrimination and sexual harassment, including predatory behaviour by police officers against other officers and vulnerable civilians42
  • allegations of excessive use of force by officers43
  • falsification of data and misuse of confidential information, including the leaking of sensitive police information to criminals and the media44
  • failures to disclose relevant information to the prosecution, defence and the court and improper evidentiary practices concerning statement taking.45

While it is important to acknowledge that there are many positive aspects of Victoria Police culture, these reviews suggest that some common issues have persisted across parts of the organisation over a long period of time and in different contexts.46 In some cases, these issues have remained despite previous inquiries highlighting similar problems and making recommendations to prevent them recurring.

Many of the common themes identified by these reviews and inquiries also emerged through the Commission’s inquiry. In particular, the Commission observed signs of:

  • a culture where police officers are driven to get results at any cost47
  • a culture of exceptionalism; that is, an attitude that police are ‘special’ and can operate outside of rules and policies because of the nature of their work48
  • poor ethical decision making, including by leaders49
  • limited consideration of human rights50
  • a resistance to exposure, accountability and transparency.51

As well as identifying common problems and issues, previous reviews and inquiries have also highlighted ways to build a strong policing culture that supports appropriate and ethical conduct among officers and prevents future misconduct, including:

  • role-modelling of ethical behaviour by leaders, noting the important role senior leaders play in demonstrating the organisation’s values52
  • strong and effective management53
  • the delivery of regular, ethics-based and human rights training to all officers of all ranks54
  • the need for cultural change to set clear behavioural expectations and encourage the reporting of misconduct and integrity concerns.55

Various contextual factors, many of which overlapped or were mutually reinforcing, contributed to the recruitment and use of Ms Gobbo as a human source and the management of issues that arose from her use as a source.

One important factor to reflect upon is the lack of diversity within Victoria Police during the period of Ms Gobbo’s third registration as a human source. All of the SDU officers who recruited and managed Ms Gobbo as a human source during this time were male, as were the overwhelming majority of senior officers who were involved in overseeing her use during that period.

The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) independent review into sex discrimination and sexual harassment within Victoria Police emphasised that gender diversity in decision-making roles should be encouraged, to support greater transparency and improved ethics.56 It found that fostering greater diversity within Victoria Police is ‘central to driving changes in culture, attitudes and practices’.57 The Commission commends Victoria Police’s commitment to implementing VEOHRC’s important recommendations aimed at achieving gender equality within the organisation by 2030.58

Given the command structure of Victoria Police and the critical role its leaders play in shaping the organisation’s vision, attitudes and ethics, it is necessary to examine the failures of leadership and governance evident during the period of Ms Gobbo’s third registration as a human source.

Failures of leadership and governance

Several previous reviews into Victoria Police have emphasised the need for strong, ethical leadership. This is particularly critical in organisations that operate through a strict chain of command, like police and paramilitary organisations where decisions made at the highest levels must ordinarily be strictly adhered to by those lower down in the hierarchy.59 Understanding the nature and effects of this rigid organisational structure is important to understanding the motivations and often the decisions made by individuals who work in these organisations.

As the Office of Police Integrity (OPI) observed in its report on the first 150 years of policing in Victoria, misconduct in Victoria Police has flourished when effective management has been absent.60 The OPI noted that:

  • the most fundamental and simple anti-corruption strategy comes down to strong and effective leadership and supervision
  • the culture of a police service is a very difficult area to reform, and change can only be achieved by good leadership, constant monitoring, training and effective discipline.61

In their submissions to the Commission, Counsel Assisting contended that it was ‘self-evident that a failure in supervision, management and governance contributed to the relevant conduct’ of Victoria Police officers involved in the use of Ms Gobbo as a human source. In this regard, they submitted, the Kellam Report’s findings that senior officers did not provide effective oversight and supervision were well-founded.62 Victoria Police accepted that submission,63 and acknowledged that its organisational and governance structures during this period were weak.64

Many aspects of individual conduct detailed in Chapter 8 could not have occurred without critical failures of leadership and governance within Victoria Police. The Commission examines two critical aspects of this leadership and governance that warrant attention:

  • an ineffective command and governance structure
  • a cultural emphasis, led from the top down, on ‘getting results’ even where to do so created significant risks, both to the organisation and the criminal justice system.

These matters are discussed in turn below.

Ineffective command and governance structure

The command structure in place in Victoria Police throughout the period of Ms Gobbo’s use as a human source is not dissimilar to the structure that exists today. Then, as now, the human source management program and the SDU, as the specialist unit responsible for the management of certain human sources, sat within the Department responsible for Victoria Police’s intelligence capability, then known as the Intelligence and Covert Services Department.65 The Human Source Management Unit (HSMU), responsible for internal oversight of the registration and management of human sources and ensuring compliance with the human source policy, also sat within this Department.

Victoria Police’s Crime Department had, and continues to have now as the Crime Command, responsibility for high-level specialist investigations to detect, disrupt and prevent serious and organised crime.66 Throughout the period Ms Gobbo was used as a human source, it established (as it still does) taskforces to investigate certain crimes. For example, the Purana Taskforce was established in April 2003 to investigate the gangland killings in Melbourne during the 2000s and to disrupt major drug manufacturing and trafficking.67 Similarly, the Petra Taskforce and Briars Taskforce, described in Chapter 8, were separate taskforces set up within the Crime Department, with the distinguishing feature of being jointly conducted with the OPI. All of these taskforces were supervised by, and under the strategic direction of, a committee of senior officers.

As with the rest of Victoria Police, both the Intelligence Department and Crime Department adopted a hierarchical rank structure with an Assistant Commissioner, or a Commander in the case of some areas, overseeing the activities of their command, department or region. Beneath them were other senior officers such as Superintendents and Inspectors.

After Ms Gobbo’s third registration as a human source in 2005, she was supposed to be managed by the SDU in accordance with the sterile corridor principle, explained in Box 9.1.

BOX 9.1: STERILE CORRIDOR PRINCIPLE

The ‘sterile corridor’ refers to an arrangement whereby a human source’s handlers are different police officers to those responsible for managing any criminal investigations that may rely on information provided by the source. According to Victoria Police’s current human source policy, the Victoria Police Manual—Human Sources, the central purpose of the sterile corridor is to ensure that the human source’s safety is not compromised through the pursuit of investigative outcomes.68

At the time of Ms Gobbo’s third period of registration as a human source, the principle required that only the SDU would have management of, and contact with, human sources. Any information provided by a human source would be ‘sanitised’ by the SDU before being provided to investigators in an Information Report. This ensured investigators did not know that the information came from a human source or, at least, that they could not identify the human source.69

Despite this principle, Ms Gobbo continued to have direct contact with investigators in the Crime Department taskforces when representing some clients on whom she was informing.

The SDU also shared information with Ms Gobbo about her clients at the request of investigators.70 In addition, senior officers within the Crime Department and the Purana, Petra and Briars Taskforces’ management structures were directly involved in her use.71 That is, many officers within the Crime Department had knowledge of, and involvement in, her use and management as a human source. This blurred accountability and created confusion about which areas or officers held ultimate responsibility for Ms Gobbo’s supervision and management, and infected the sterile corridor that should have applied to the transfer of information she provided to Victoria Police.

Other aspects of Victoria Police’s otherwise strict chain of command structure were also disregarded. The Commission heard evidence that while senior officers responsible for the SDU knew that Ms Gobbo was a human source, they did not give directions about Ms Gobbo’s deployment, in part because of her use by the Purana Taskforce, which sat under the Crime Department.72

Figure 9.1 illustrates the organisational structures in which the SDU and Purana Taskforce operated and the flow of information that occurred between the Crime Department and the SDU from mid-2006 until Ms Gobbo was deregistered as a human source in 2009.

Figure 9.1: Intelligence and Covert Services Department and Purana Taskforce organisational chart, mid 2006–09 73
Figure 9.1 Intelligence and Covert Services Department and Purana Taskforce organisational chart, mid 2006–09
Above the Intelligence Department, Crime Department and other Victoria Police Departments was an executive governance group, then called the ‘Corporate Committee’.74 This body was composed of high-ranking officers including Deputy Commissioners and Assistant Commissioners.75

Former Chief Commissioner Kenneth (Ken) Lay, AO, APM told the Commission that the executive governance arrangements during these periods had a direct impact on Victoria Police’s effectiveness. He explained that under Ms Nixon, the Corporate Committee consisted of about 25 people, including the Deputy and Assistant Commissioners and Commanders. Most of those officers were not co-located. Mr Lay considered that, because of the size and location of this senior executive group, there was ‘less regular informal communication about the issues of the day’ compared to when he was Chief Commissioner from 2011 to 2015.76 He also highlighted the disunity among key members of the executive group during this period.77

Several current and former Victoria Police officers contended that officers at the top of the chain of command knew that Ms Gobbo was a human source and this gave ‘comfort and confidence to officers below’ about the legitimacy of her use.78 They submitted that this partly explains why none of the more than 100 or so Victoria Police officers and personnel who knew that Ms Gobbo was a human source between 2005 and 2009, ranking from Senior Constables right through to Assistant Commissioners, reported or raised concerns about the appropriateness of her use with Victoria Police’s then Ethical Standards Department or an external body.79

Victoria Police contended that no officer dealing with Ms Gobbo or the cases involving information she provided had ‘full visibility’ over her role and history, and that instead many officers saw only a small part of the picture.80 That was, it submitted, in part due to a failure to implement appropriate governance arrangements to manage such a high-risk situation.81 Several current and former Victoria Police officers also submitted that the governance structures were ‘weak’ compared with more modern arrangements in similar organisations.82

Victoria Police contrasted those arrangements with what would occur if a similar situation arose under the current human source management framework. Currently, the registration of a prospective human source who is a lawyer, former lawyer, or someone associated with a lawyer would have to be considered and approved by the Human Source Ethics Committee (Ethics Committee), which includes Assistant Commissioners and the Executive Director of Victoria Police’s Legal Services Department. If that person was registered, Victoria Police submitted, their use as a human source would be subject to conditions, reviews and reporting to the Ethics Committee.83

The Commission acknowledges that the siloed chain of command arrangements and weak executive governance existing at the time contributed to failures in the management of Ms Gobbo as a human source. Contrary to Victoria Police’s contentions, however, the Commission does not accept that the current human source governance framework, although admittedly improved, is sufficiently robust to deal with similarly complex situations. It recommends changes to decision-making arrangements to encourage greater accountability in the use and management of certain high-risk sources, including where confidential or privileged information may be obtained, in Chapter 12.

While the Commission recognises the impact of structural weaknesses that existed within Victoria Police at the time, these weaknesses do not absolve individual senior officers who had sufficient knowledge about Ms Gobbo’s use as a human source and who failed to take appropriate action at various times during the period of her third registration. Consistent with the analysis in Chapter 8, officers in leadership positions who knew, or should have known, that Ms Gobbo was acting for people while providing information about them to Victoria Police, should have taken steps to prevent this from occurring, including by obtaining fully informed legal advice and ensuring that officers were complying with Victoria Police’s disclosure obligations.

A cultural emphasis on getting results

The Commission heard evidence that the information Ms Gobbo was able to provide to Victoria Police was of high value in helping police to detect and prevent serious and organised crime.84 The large number of potentially affected cases that the Commission has identified in Chapter 7 lends further support to this fact.

As explained in Chapter 8, senior officers within Victoria Police who knew of Ms Gobbo’s role clearly appreciated that she was a very high-value human source. They should also have appreciated the risks of her use, especially those who had been closely involved in reviewing and reforming Victoria Police’s human source management framework and were therefore aware of the challenges the organisation had faced in managing high-risk sources in the past.85

Counsel Assisting submitted that the high value of the information Ms Gobbo could and did provide justified, in the views of many officers at all ranks, the obvious impropriety of using her as a human source and not disclosing this to the courts, prosecuting authorities or accused persons.86 They submitted that it was open to the Commission to find that, insofar as the conduct of Victoria Police can be said to have been caused by, or influenced by, its ‘culture’, then a relevant cultural factor included a view that the ends of charging, convicting and imprisoning criminals justified the means of securing these convictions, including through improper conduct.87

Victoria Police rejected this submission.88 It emphasised that it has never suggested that the ends of charging, convicting and imprisoning criminals justify the means,89 and submitted that such a contention is premised on an erroneous assumption that officers participated knowingly in improper conduct.90

The Commission does not accept Victoria Police’s broad submission that no officers knowingly acted improperly.

Many Victoria Police officers involved in these events knew that using Ms Gobbo as a human source was a high-risk strategy. As is clear from Chapter 8, some of those officers, especially those in senior positions with legal training, appreciated that using Ms Gobbo was a very high-risk strategy.91 It is also clear that, for the entirety of her third period of registration, Victoria Police considered the value of the information she could, and did provide, warranted her registration and continued use.92

The enormity of the risks involved and their potential consequences should have been particularly appreciated by those officers within Victoria Police’s leadership. As noted above, the mismanagement of human sources and associated police misconduct and corruption precipitated significant reforms to the human source management framework in the early 2000s. Victoria Police’s leaders knew what could go wrong when human sources were mismanaged and when there was insufficient oversight of officers dealing with human sources.93

Having considered the relevant evidence, including the submissions of Counsel Assisting, Victoria Police and relevant officers, the Commission is satisfied that the registration and management of Ms Gobbo as a human source reflected a pervasive drive to achieve results, with insufficient regard to managing the exceptionally high risks involved, most likely because the information she provided was seen as highly valuable in solving serious crimes associated with Melbourne’s gangland wars.

Deficiencies in human source management policies and processes

Victoria Police’s current use of human sources is governed by an internal policy—the Victoria Police ManualHuman Sources (Human Source Policy).94 As discussed in Chapter 11, over the years, there have been many iterations of this policy, the most recent in May 2020.

Some of the police conduct described in Chapter 8 points to inadequate policies concerning the recruitment, use and management of human sources. Where those policies did exist, the Commission finds that there were many instances of inadequate adherence to them. There were also significant gaps in the training provided to police to deal with some of these issues.

Terms of reference 1 and 2 span a period of more than 25 years. Consequently, it is difficult to make general statements about the adequacy of, and adherence to, Victoria Police’s policies, processes and training that were applicable at all relevant points in time. Nevertheless, this section focuses on policies in place between 1995 and 2003 (during Ms Gobbo’s first and second registrations) and then between 2003 and 2009 (immediately before and during Ms Gobbo’s third registration).

1995 to 2003: Rudimentary policies and processes

Between 1995 and 2003, Victoria Police’s policies and processes concerning the management of human sources were rudimentary. Their central focus was to require police to preserve the confidentiality of the identity and location of human sources.95 Victoria Police described this as the ‘golden rule’, which was designed to protect the lives and safety of those who assisted police.96 According to Victoria Police, this rule was the paramount consideration in the use of human sources.97 A Force Circular Memo published in early 1992, when processes for the formal registration of human sources were introduced, instructed officers to observe the following rules:

  • Officers are to maintain the utmost confidentiality in relation to the identity of human sources.
  • Officers must not disclose the name of a human source in written reports unless directed to do so by a more senior officer.
  • Officers may, if necessary, verbally disclose the name of a human source to their superiors.
  • Officers must disclose the name of a human source to a more senior officer if they are directed to do so.98

At the time of Ms Gobbo’s first and second registrations, policies and processes required the registration of human sources,99 but did not involve a risk assessment process.100 This is consistent with the fact that Victoria Police did not conduct any kind of risk assessment process before Ms Gobbo was registered as a human source in 1995 and in 1999.101

As discussed in Chapter 6, although there is a lack of material before the Commission about Ms Gobbo’s first registration in 1995, it does not appear that Victoria Police gave any consideration to the appropriateness of registering a law student as a human source.102 Similarly, at the time of Ms Gobbo’s second registration in 1999, the policy gave very little guidance on the appropriateness of registering human sources.103 For example, that policy did not require an assessment of whether the profession of the human source raised any complex legal and/or ethical issues.

Importantly, throughout this period, Victoria Police provided no policy guidance on registering human sources who may be subject to legal obligations of confidentiality or privilege.104

The Commission considers that these rudimentary policies and processes substantially mitigate the conduct of individual Victoria Police officers’ handling of Ms Gobbo as a human source during this period. There were several weaknesses in the framework; namely, the absence of a formal risk assessment process, lack of guidance regarding human sources subject to legal obligations of confidentiality or privilege, and the overemphasis of the golden rule. These weaknesses all help to explain why no formal or informal risk assessment was conducted at the time of Ms Gobbo’s first and second registrations or while she was registered, despite some individual officers flagging concerns about her suitability to be a human source.105

2003 to 2009: Contemporary policy framework and evolving processes

By 2003, Victoria Police had started to implement a contemporary policy and procedural framework to govern the management of human sources.106 In 2003, Victoria Police established its first comprehensive organisation-wide human source management policy.107

The policy incorporated all phases of the human source management process, including recruitment, registration, interaction, payment, deactivation and requests for human source assistance.108 It also outlined the roles and responsibilities of officers involved in the management of human sources.109 In contrast to previous policies, this framework required officers to undertake a risk assessment prior to the registration of a human source, and monthly reviews of risk once the source was registered.

This policy was introduced by Victoria Police largely in response to policy and procedural deficiencies that had contributed to past instances of police misconduct and corruption in the use of human sources.110 These experiences had prompted Victoria Police to conduct various reviews, with a view to overhauling its human source management framework.111

Victoria Police expended significant efforts and resources to set up what it considered was a ‘best practice’ human source management framework. Senior officers of Victoria Police travelled interstate and overseas to consult with law enforcement agencies in comparable jurisdictions, including to the United Kingdom.112 In early 2004, as a key part of the new framework, Victoria Police established a specialised unit responsible for managing high-risk human sources. This unit came to be called the SDU.113

Victoria Police also implemented new standard operating procedures that applied to the SDU and required:

  • completion of a comprehensive risk assessment prior to the registration of a human source
  • completion of an Acknowledgment of Responsibilities (AOR), setting out the parameters of the relationship between the human source and Victoria Police
  • formal and ongoing monthly risk assessment reviews
  • contemporaneous records of information provided by a human source, through the completion of Informer Contact Reports (ICRs)
  • maintenance of a sterile corridor, by requiring that only the SDU would have management of, and contact with, high-risk human sources.114

While this policy and procedural framework was certainly more robust than its predecessor, it was not without flaws. Some of these flaws became critical gaps. Below, the Commission draws particular attention to two significant shortcomings:

  • the continued and absolute emphasis on the need to protect the identity of human sources (the golden rule)
  • the evolving nature of the new framework, which led to policy and procedure being developed on the run.

The ‘golden rule’

The golden rule, which required the identity of a human source to be protected, was emphasised in police practice throughout this period.115 The Commission heard that this rule became cast iron as a consequence of the murder of registered human source Mr Hodson and his wife. Mr Hodson’s status as a human source had become known to criminal identities after a Victoria Police Information Report (IR) identifying him as a source was leaked.116 Human source management did not form part of the training for recruits at the police academy, so typically officers would learn the golden rule on the job from more experienced officers.117 The mantra ‘never reveal a source’ was drummed into officers in this period.

The Commission accepts that any human source management policy must prioritise the safety of human sources and this includes protecting their identities. The golden rule was put in place with the primary and proper purpose to protect human sources’ safety.118 Victoria Police, however, has now acknowledged that the human source management framework was flawed in its rigid emphasis on this rule.119 It submitted that it ‘risked dominating the minds and actions of [officers] to such an extent that they risked making poor decisions’.120

The Commission considers that the sole and exclusive focus on this rule through formal directions and informal training, together with a lack of focus on other important public interests, led to a situation where many Victoria Police officers protected the identity of human sources like Ms Gobbo to the detriment of fundamental legal obligations, most notably the duty of disclosure. It also contributed to the reluctance within the organisation to obtain timely, informed and independent legal advice about the use of Ms Gobbo throughout this period, discussed further below.

Evolving standard operating procedures and insufficient guidance on complex human sources

Counsel Assisting submitted that a weakness in the human source management framework was the lack of policies or procedures to protect against the risks of using lawyers or other people subject to legal obligations of confidentiality or privilege as human sources.121 This was despite Victoria Police examining the United Kingdom human source management model, which included a publicly available Code of Practice containing safeguards related to sources providing confidential or privileged information, when developing its new framework in the early 2000s.122 Victoria Police candidly acknowledged this weakness in its submission to the Commission.123

Another weakness highlighted by Victoria Police and several former and current Victoria Police officers was the novelty of the policy framework.124 The policies and procedures concerning the SDU were new and untested. While the SDU was staffed by experienced officers, the unit was still developing its standard operating procedures throughout Ms Gobbo’s third registration period.125 Several former SDU officers conceded that, with the benefit of hindsight, these evolving policies ‘could have been better crafted to consider and deal with human sources with obligations of confidentiality and privilege’.126

The Commission accepts the submissions that an important factor in the improper use of Ms Gobbo as a source was the policy and procedural framework that existed at this time. In particular, the Commission considers the critical deficiencies were:

  • the absence of policy guidance and/or restrictions on the recruitment and use of human sources with legal obligations of confidentiality or privilege
  • a lack of clear guidance and requirements about when to seek legal advice on complex issues.

As Victoria Police has now rightly acknowledged, had such policy guidance existed, it is unlikely that she would have been registered as a human source in 2005.127 This significant gap in Victoria Police’s human source management policy framework was left un-addressed until 2014, and not fully remedied until amendments were made to the Human Source Policy in 2020.128

The Commission considers that the human source management framework also lacked clear guidance about when to seek legal advice on complex issues. Victoria Police acknowledged that a major contributing factor in the use of Ms Gobbo as a human source in 2005–09 was the failure to obtain legal advice, both at the time of her registration and later, as clear conflict of interest issues and problems with legal professional privilege began to emerge.129 Consequently, some of the more complex legal risks that Ms Gobbo’s use posed to Victoria Police, investigations and prosecutions, and the administration of justice were not identified by the SDU or its superior officers.130

It is important to acknowledge that, over the period that was the subject of this Commission’s inquiry, Victoria Police’s Human Source Policy was refined to better address complex issues concerning the use and management of human sources. Despite this, some weaknesses remain. The Commission makes recommendations designed to address these in Chapter 12.

Due to both the volume of information Ms Gobbo provided to Victoria Police immediately before and during her third registration period and the significant and ongoing contact between Victoria Police officers and Ms Gobbo from 2003 until 2010, the remaining sections of this chapter will primarily address issues in the period from 2003 onwards.

Failure to comply with human source management policies and processes

Counsel Assisting submitted that Victoria Police officers failed to comply with the policies and procedures that did exist when Ms Gobbo was used as a human source in 2005–09.131 The examples they highlighted included the failure:

  • to perform regular, formal risk assessments
  • to complete an AOR between Victoria Police and Ms Gobbo
  • to complete ICRs in a timely manner
  • of the responsible senior officer to review completed ICRs in a timely manner
  • to disseminate information to investigators only through IRs.132

These policies applied to all Victoria Police officers dealing with human sources, not just the SDU. Investigators in the taskforces under the Crime Department were required to adhere to the sterile corridor principle by not receiving information directly from Ms Gobbo and leaving the management of her as a human source to the SDU. The SDU should have facilitated this by only disseminating information to the investigators in IRs that had been ‘sanitised’ to remove any information that could have identified Ms Gobbo as the source of the information.

In response to Counsel Assisting’s assertion that officers failed to comply with these policies and procedures, Victoria Police submitted that such failures could not occur under the current Human Source Policy and associated processes.133 It noted that the current framework is supported by an intelligence and case management system, Interpose, that detects instances of policy non-compliance and automatically suspends non-compliant human source files.134

As discussed in Chapter 8, there were many instances of officers not complying with the policies and procedures listed above. In addition to the examples given by Counsel Assisting, others included:

  • cursory and perfunctory risk assessments135
  • the SDU providing un-sanitised information to investigators verbally (a practice referred to as ‘hot debriefs’).136

The Commission therefore accepts the submission of Counsel Assisting that SDU officers failed to comply with some key policy and procedural requirements.

On the available evidence, it appears that numerous factors contributed to this non-compliance. For example, the requirement for timely completion of ICRs was difficult to comply with because of the huge amount of information Ms Gobbo was providing to SDU officers on a daily basis. The Commission notes that several former SDU officers submitted that they requested more administrative support to assist them with this task but it was not adequately provided.137

The Commission also accepts Victoria Police’s submission that another factor was the intense external pressure and scrutiny being applied to police because of the continuation of the gangland wars. As discussed above, one consequence was that Victoria Police officers were driven to achieve results and appear to have ignored compliance with proper processes in some instances. In addition, as discussed below, the SDU was under-supervised, which gave the unit significant freedom to push the boundaries and to operate outside of formal policies and processes.

Pressure was also exerted on investigators in the relevant taskforces, which resulted in them sometimes sidestepping critical aspects of the policies and procedures, including, notably, receiving ‘hot debriefs’ from SDU officers.138 This practice was directly contrary to the sterile corridor principle.

In the Commission’s view, however, while the individual officers who did not adhere to these policies and processes bear some responsibility for that non-compliance, and while it reflects a troubling willingness to ‘bend the rules’ in the pursuit of investigative objectives, it is substantially mitigated by the lack of effective supervision by senior officers. This is discussed further later in this chapter.

Failure to properly identify, assess and manage the risks of using Ms Gobbo as a human source

Managing human sources requires police to identify, assess and manage a range of risks. At the time of Ms Gobbo’s third registration, Victoria Police had recognised for many years that while human sources can be a valuable means to obtain information about criminal activity, their use also gives rise to risks that must be managed carefully.139

Victoria Police policy required officers to complete a risk assessment and in so doing, to consider the following risks:

  • risk to the human source
  • risk to information
  • risk to police officers dealing with human sources
  • risk to Victoria Police
  • risk to the public.140
The nature of the risks of using Ms Gobbo as a human source

Using Ms Gobbo as a human source involved a number of risks, including:

  • the risk to Ms Gobbo’s personal safety if her identity as a human source became known, given, in particular, her role as a criminal defence barrister, her high profile within the legal profession, and her relationship with organised crime figures
  • the risk that Ms Gobbo would not follow her handlers’ instructions, especially because of her overt willingness to assist police and her erratic behaviour
  • the risk that Ms Gobbo’s physical health would be adversely impacted, particularly because she had recently suffered a stroke at 31 years of age
  • the risk that Ms Gobbo would breach her duties to her clients, including her duty to keep the information they gave her confidential and to avoid conflicts of interest, by providing information about them to Victoria Police
  • the risk that the use of Ms Gobbo as a human source would jeopardise criminal investigations, prosecutions and the validity of convictions
  • the risk that Ms Gobbo’s use as a human source, if it became known, would negatively affect Victoria Police’s reputation and undermine public confidence in it and the criminal justice system.

Identifying and assessing these risks required Victoria Police officers to appreciate several factors, many of which overlapped, including:

  • the nature of the lawyer/client relationship, including conflicts of interest
  • the scope of Ms Gobbo’s legal obligations of confidentiality and privilege, and of confidential or privileged information
  • the prosecution’s duty of disclosure and the possible consequences of not complying with this duty, including the risk that a prosecution could be temporarily or permanently stayed and/or convictions overturned
  • aspects of Ms Gobbo’s personality and mental and physical health that made her particularly difficult to manage as a human source.

Consistent with the findings and discussion in Chapter 8, the Commission is satisfied that from the time of Ms Gobbo’s third registration through to when Victoria Police stopped receiving information from her in 2010, some of the risks were obvious and known, or at least should have been known, to police, including that:

  • the use of Ms Gobbo as a human source may be disclosed, either through court processes or otherwise141
  • at least a proportion of the information she provided to Victoria Police in relation to her clients was likely to be confidential or privileged142
  • miscarriages of justice might eventuate from the use of a lawyer as a human source to inform on their own clients.143

Once these risks were identified, Victoria Police officers should have known at the very least that the information Ms Gobbo could lawfully provide to police for use in investigations was tightly constrained by her own legal obligations, and that informed legal advice was needed to better understand the potential risks relating to her use.

As discussed below, there were many failures to:

  • properly assess the risks at the time of Ms Gobbo’s third registration as a human source
  • continually assess and manage the risks throughout her third registration period and after her deregistration as a human source.
Failure to properly assess the risks at the outset

As noted above, by 2003, Victoria Police’s policy framework included the requirement to undertake risk assessments before registering human sources. The initial risk assessment was required to be conducted by officers in the SDU, and approved by the Officer in Charge (OIC), a Detective Inspector of the SDU.

Significantly, the initial risk assessment failed to acknowledge the ethical and legal risks of registering Ms Gobbo, a criminal defence barrister, as a human source and providing information to police about her clients. Despite this notable absence, the risk assessment completed by the SDU and signed off by supervising officers in November 2005 did identify that Ms Gobbo:

  • had quickly established a history of providing wide ranging and accurate intelligence
  • had the ability to provide accurate and timely intelligence concerning local and major crime
  • was capable of being deployed in a criminal environment as her associates appeared to trust her and speak openly in her presence
  • was a Victorian criminal barrister and represented many high-profile criminal identities.144

The risk assessment also noted that the ‘effective utilisation of [Ms Gobbo] has the potential to impede major crime and reduce the illicit drug trade. Failure to do so will have the opposite effect’. It recommended that Ms Gobbo was both ‘strategically and tactically viable’.145

Victoria Police submitted that this evidence demonstrated that the officers involved in Ms Gobbo’s registration recruited her as a human source, ‘not as a barrister, but as an associate of criminals’146 and believed that the information they sought, at least at the time of her recruitment, would be information that she had received in social settings. Confining the information that she gave to police became ‘impossible to manage’, Victoria Police submitted, primarily because ‘Ms Gobbo appeared to have no desire to manage it’.147

The initial risk assessment prepared by the SDU was endorsed by Officer Black (a pseudonym) as the Acting Controller and approved by the Officer in Charge, then Acting Superintendent Mr Douglas (Doug) Cowlishaw.148 Mr Cowlishaw’s specific involvement in the risk assessment process is discussed in Chapter 8.

Counsel Assisting submitted that while this formal risk assessment process was a significant improvement from previous processes, it was ‘clearly incapable of filtering out such a risky candidate’.149 They also submitted that the approval process in Ms Gobbo’s case was ineffective, and did not give attention to the significant risks that Ms Gobbo’s use as a human source posed to the proper administration of the criminal justice system.150

Victoria Police acknowledged both that the formal risk assessment framework had problems and that there was insufficient engagement with the approval process by senior officers. It submitted that the framework was not capable of identifying and placing strict requirements around the management of the risks associated with Ms Gobbo, and that this failure was a key reason the events occurred.151 Several former SDU officers also accepted that the risk assessment could have been better, but noted that it was the first of its kind.152 Nevertheless, Victoria Police and these former SDU officers said that the SDU’s risk assessment was detailed and, in some officers’ views, was the most comprehensive that had ever been conducted on a human source at Victoria Police.153

Victoria Police submitted that there were two main structural limitations in the risk assessment conducted by the SDU:

  • SDU officers’ poor understanding of the relevant risks, especially conflicts of interest154
  • limited oversight of the SDU’s risk assessment, meaning the officers’ views were not challenged and there was no push for legal advice to be obtained.155

Victoria Police contended it was ‘unfortunate’ that the SDU’s supervising officers did not have more active involvement in the risk assessment process because they may have challenged SDU officers’ views about the nature of the risks posed and may have requested legal advice.156 The Commission agrees that this should have occurred.

Several former SDU officers asserted that the risk assessment template should have expressly identified:

  • the risk that Ms Gobbo would act for people on whom she informed
  • the risk that she would breach her ethical obligations
  • the risk that others would believe the SDU deliberately targeted information that was privileged and the risk to fair trials.157

The Commission does not accept this submission. Inadequacies in a template do not explain why SDU officers failed to sufficiently address the ethical and legal issues raised by Ms Gobbo’s registration. It is neither possible nor desirable for a risk assessment template to cover every possible risk. Its purpose is to set out general categories of risk that officers can use to assess the particular circumstances and risks relevant to different prospective human sources. Further, consistent with the discussion in Chapter 8, the Commission does not accept that these officers did not comprehend that there were obvious ethical and legal risks in using Ms Gobbo as a human source. For example, evidence before the Commission signalled that some officers did at least appreciate issues around legal professional privilege.158

Overall, the Commission considers that there were critical failures in the initial risk assessment process in relation to Ms Gobbo’s third registration as a human source; namely:

  • No reference to ethical and legal risks around registering a lawyer as a human source—As Victoria Police acknowledged, the initial risk assessment did not refer to the legal and ethical issues associated with a lawyer acting as a human source and providing police with information about their clients. The Commission considers that, had the SDU adequately performed this risk assessment, they would have at least identified these issues, and the significant risks that Ms Gobbo posed to Victoria Police and the criminal justice system.
  • No meaningful interrogation of the risk assessment by supervising officers—Had the SDU’s supervising officers properly conducted a meaningful review of the SDU’s initial risk assessment, it is more likely that legal advice may have been requested and/or that the risks of using Ms Gobbo as a human source may have been deemed too great to justify the potential rewards.
  • The absence of an AOR—as Victoria Police conceded, the evidence suggests that no satisfactory AOR was ever completed for Ms Gobbo.159 If such a document had existed, it would have set out the respective responsibilities of Ms Gobbo as a human source and Victoria Police in the context of their ongoing relationship. The absence of an AOR allowed officers to take the misguided view that it was for Ms Gobbo to be responsible for managing her ethical obligations.160 As with the risk assessment template, several former SDU officers submitted that the AOR pro-forma was ‘ill adapted’ to dealing with a source like Ms Gobbo.161 The Commission appreciates that the AOR template was not specifically designed for a source like Ms Gobbo, but any shortcomings, if they existed, did not prevent the SDU officers from adapting the template to clearly set out proper parameters of the arrangement between Victoria Police and Ms Gobbo.
Failure to adequately assess and manage the risks on an ongoing basis

The initial risk assessment was obviously not the only opportunity Victoria Police had to identify the risks posed by Ms Gobbo’s use as a human source. The policy required ongoing monthly risk assessments designed to ensure that officers continually assessed the risks in relation to each human source and considered appropriate steps to mitigate unacceptably high risks. As several former SDU officers submitted, the SDU ‘continually assessed the risk to a source on an interaction by interaction basis’.162

In addition to failing to properly identify and assess the risks at the outset, evidence before the Commission points to many instances of officers failing to adequately re-assess and manage risks on an ongoing basis during Ms Gobbo’s third registration.

Some prominent examples include:

  • the failure of SDU officers, Purana investigators and those overseeing the SDU and the Purana, Briars and Petra Taskforces to seek legal advice about the potential risks of using Ms Gobbo as a human source and/or information she had provided163
  • the failure of SDU officers to take steps to deactivate Ms Gobbo when it became clear that her role as a human source was becoming increasingly problematic.164

Victoria Police offered several explanations as to why its officers managed these risks so poorly throughout this period. Broadly, it pointed to:

  • the difficulties of managing Ms Gobbo as a human source
  • the impact of, and unintended weaknesses in, the sterile corridor and ‘need-to-know’ principles
  • ongoing failures by SDU officers to assess and manage the risks.

These matters are discussed in turn below.

The difficulties of managing Ms Gobbo as a human source

The Commission heard evidence that SDU officers, investigators and senior officers assumed and/or accepted that Ms Gobbo was responsible for managing her own ethical and legal obligations.165 Several former and current officers involved in her use said they ‘did not contemplate’ that Ms Gobbo would over time disregard her professional obligations in the way she did. Many officers proceeded on the basis that it was for Ms Gobbo to consider her professional obligations, and that if she did not do that, or did it incorrectly, then any consequences were for her alone.166 They said that this was not an ‘unreasonable assumption’ to make, as people outside of Victoria Police ‘seem to have made the same assumption’.167

Counsel Assisting, however, drew attention to evidence that individual officers were sometimes expressly made aware of Ms Gobbo’s disregard for her obligations to her clients, and that at other times this was implicit.168 They also submitted that SDU handlers managed the information Ms Gobbo gave to them inconsistently. Sometimes the handlers left it to Ms Gobbo to manage legal professional privilege issues; sometimes they appeared to disseminate privileged information to investigators; and at other times they tried to remove potentially privileged information from IRs before disseminating them to investigators.169 This suggests that, at least on some occasions, the SDU identified that Ms Gobbo was providing privileged or potentially privileged information.

In explaining this behaviour, Victoria Police placed significant reliance on Ms Gobbo’s ‘uniqueness’ and the challenges she created for her handlers. It submitted it was:

… hard to imagine a more unusual potential human source: a criminal defence barrister who was also as much a part of the criminal world of her clients as she was their representative.170

This situation, Victoria Police said, created ‘unique challenges’ for her risk assessment, registration and management. It submitted that Ms Gobbo was simultaneously ‘intelligent, articulate, needy, vulnerable, manipulative, dishonest and with a questionable moral and ethical compass’.171

Victoria Police contended that Ms Gobbo’s relationship with Victoria Police was, in reality, a complex set of relationships with a number of different officers; that the only constant in that relationship was Ms Gobbo herself; and that Counsel Assisting submissions failed to acknowledge that complexity.172 It follows, Victoria Police argued, that those officers involved in her management both during her third registration period and after her deactivation in 2009, did not have collective knowledge of all aspects of her relationship with Victoria Police. The only person who had that was Ms Gobbo.173

Some former and current Victoria Police officers submitted that neither the SDU officers nor investigators had ever handled a human source like Ms Gobbo, a lawyer closely associated with criminals and who, as time went on, disregarded her professional obligations and the directions of her handlers.174 One former SDU officer gave evidence that while he had significant experience with the duplicity of human sources, he ‘dropped his guard’ when managing Ms Gobbo, believing she would act honestly because she was a barrister.175

Implicit, and sometimes explicit in the submissions of Victoria Police and many of its former and current officers is the notion that the relevant officers failed to identify the risks at the outset and then to continually assess and manage these risks throughout the relationship because none of them could have, or did, anticipate Ms Gobbo’s particular propensity to disregard her ethical and legal obligations, to lie and manipulate, to behave in inconsistent ways and to disregard instructions.

Without diminishing in any way Ms Gobbo’s reprehensible conduct, the Commission is of the view that these submissions do not excuse Victoria Police’s failure to identify, assess and manage the relevant risks. This is so for three key reasons:

  • First, it was well understood by Victoria Police that some high-risk human sources will routinely lie and manipulate176 and that a common danger in human source management is the development of personal relationships between the handler and human source that ‘opens the door for corrupt practice to occur’.177 The creation of the SDU, a group of expert human source handlers to manage complex human sources, was specifically designed to mitigate these risks. SDU officers should have been aware from the outset of the need to actively manage Ms Gobbo and to put clear parameters around the relationship.
  • Second, as discussed in Chapter 8, as the relationship continued, the recorded conversations between Ms Gobbo and Victoria Police suggest that at times, officers were concerned by Ms Gobbo’s behaviour and conduct. There were many discussions, at critical moments, where it was clear that Ms Gobbo was disregarding her ethical and legal obligations to her clients.178 Yet these officers did not take adequate steps to set firm boundaries or end the relationship.
  • Third, and most fundamentally, the submissions minimise Victoria Police’s powerful and pivotal role in facilitating a situation where a criminal lawyer was informing against her own clients and police were using that information in ongoing investigations and prosecutions. It seems inconceivable that the relevant officers believed Ms Gobbo was entirely responsible for and capable of managing her legal obligations to the clients she was informing on, given the precarious situation in which she found herself.

As noted above, several Victoria Police officers contended that it was not an ‘unreasonable assumption’ that Ms Gobbo would manage her own professional obligations, noting that others outside Victoria Police appeared to have made the same assumption.179 The Commission rejects this submission. As explained in Chapter 8, Victoria Police did not begin to fully brief the VGSO and prosecutors about Ms Gobbo’s use as a human source until late 2011.180 The assertion that these people outside Victoria Police appear to have reached the same assumption is misguided: they were not provided with sufficient information to reach an informed opinion on this matter.

Impact of the sterile corridor and need to know principles

Victoria Police placed significant reliance on the application of the sterile corridor and need to know principles to explain failures to manage the risks arising from Ms Gobbo’s use as a human source. Issues arising from the application of these principles, it contended, meant that information was kept in silos and not shared.181 For example, Victoria Police submitted that the operation of the need to know principle made it very difficult if not ‘practically impossible’ for police officers to get a complete picture of Ms Gobbo’s role, and this exacerbated the failures of officers to disclose the use of Ms Gobbo, and the use of information received from Ms Gobbo, to prosecutors, courts and accused persons in accordance with the duty of disclosure.182

While the Commission acknowledges that the sterile corridor and need to know principles had consequences for the ability of officers in different units to manage some risks, it does not accept this as a satisfactory explanation for Victoria Police’s failure to manage the most obvious risks. The evidence does not support the contention that these principles, in practice, prevented officers from being aware of the risks that:

  • Ms Gobbo would provide confidential or privileged information to police; or
  • Ms Gobbo would act as a legal representative for a client while providing information to police about them.

Officers should have been aware of these obvious risks and taken steps to prevent Ms Gobbo from providing confidential or privileged information or from representing people she had provided such information about. When those risks materialised, the SDU officers and investigators involved should have immediately raised

these matters with their supervising officers, taken steps to deregister Ms Gobbo as a human source or put other strategies in place to manage her in a different way; and/or sought legal advice about how to handle the situation.

Source Development Unit failures to assess and manage the risks

Counsel Assisting submitted that it was open to the Commission to find that the SDU’s approach to risk assessment and mitigation throughout Ms Gobbo’s third registration was ‘lamentably inadequate’.183 They highlighted the evidence that the SDU prepared only two formal written risk assessments throughout this period—the initial assessment discussed above and a second in April 2006—and the lack of any formal risk mitigation process other than the perfunctory preparation of a ‘monthly source review’ by the Controller in the SDU, a brief, high-level summary of matters relevant to Ms Gobbo over the preceding month.184

Several former SDU officers did not accept this submission. They contended that every significant incident relevant to risk was documented in the ICRs, summarised in the Source Management Log (SML) and discussed at management meetings.185 They submitted that when Ms Gobbo received threats, additional measures were put in place to monitor her safety.186 They conceded that registering Ms Gobbo and using her as a human source ‘did not resolve the fact that Ms Gobbo was in danger’ but said that ‘such is the role of human sources’.187

These submissions demonstrate an inadequate understanding both at the time, and now looking back on events, of the many complex risks posed by Ms Gobbo’s use as a human source.

While the serious risk to Ms Gobbo’s personal safety was a major risk, it was certainly not the only one. Merely documenting the ongoing risks to her safety in ICRs and the SML and discussing them at management meetings was not a satisfactory way to manage the risk to Ms Gobbo’s safety, let alone the many other risks that Ms Gobbo posed. The Commission agrees with Counsel Assisting that the monthly source reviews were perfunctory and do not evidence a rigorous and continual assessment of the risks associated with Ms Gobbo’s use as a human source as her relationship with Victoria Police became increasingly complex and problematic.

In addition, the former SDU officers’ assertions that all those who choose to be human sources place themselves in danger188 overlooks the critical responsibility of police when registering human sources; that is, to continually assess and manage the risks to those human sources. In the case of Ms Gobbo, as Victoria Police now rightly acknowledges, a person as complex and high-risk should never have been registered, used and managed as a human source in the way that she was.189 For all of these reasons, and after considering the contrary contentions of Victoria Police and the former SDU officers, the Commission agrees with Counsel Assisting’s assessment that the SDU’s risk management and mitigation was wholly inadequate throughout the period of Ms Gobbo’s third registration as a human source.

While the SDU had the day-to-day operational management of Ms Gobbo, its officers did not have sole responsibility for decisions about her use and management. Management and supervision of the SDU was also a significant factor in their failure to manage risk. This is discussed further below.

Failure to seek legal advice throughout Ms Gobbo’s third registration period

As is apparent from the narrative set out in Chapters 6, 7 and 8, there were many occasions between 2005 and 2009 when Victoria Police should have sought legal advice about the use of Ms Gobbo as a human source. Had this occurred, it is likely that much of the damage would have been avoided, or at least mitigated to a significant degree.

Failure to seek legal advice at initial registration

As former Chief Commissioner Neil Comrie, AO correctly observed in his 2012 review, the Comrie Review, this was a case ‘crying out’ for legal advice.190 Victoria Police’s failure to seek timely, informed legal advice was a central reason for its inability to adequately identify, assess and manage the risks of using Ms Gobbo as a human source.

Counsel Assisting submitted that, given the apparently imperfect understanding of some officers dealing with Ms Gobbo about complex aspects of the risks she posed (including the scope of legal obligations of confidentiality and privilege and conflicts of interest), they should have obtained legal advice before and during Ms Gobbo’s third registration.191 Victoria Police accepted this criticism and acknowledged that the failure to seek legal advice at the time of Ms Gobbo’s registration was a major contributing factor to what subsequently was allowed to occur.192

As noted above, the Commission considers that a deficiency in the policy framework was the absence of a requirement to obtain legal advice before registering a source as high risk and complex as Ms Gobbo. Even without a formal requirement though, the SDU and its supervising officers could and should have managed the obvious risks by seeking legal advice at the time of Ms Gobbo’s registration.

Former Chief Commissioner Mr Simon Overland, APM told the Commission that as soon as he learned that Ms Gobbo was to be registered, he immediately identified issues of concern, including the potential for miscarriages of justice.193 Despite this, he did not seek legal advice.194 He said he was ‘conscious not to intervene because [he] didn’t think it was appropriate’ as the SDU was not in his chain of command.195

Continued reluctance to seek legal advice as relationship became more complex

As the obvious risks of using Ms Gobbo as a human source materialised over the course of the relationship, Victoria Police officers failed to obtain informed legal advice.

Counsel Assisting drew attention to findings in both the Comrie Review and Kellam Report that using Ms Gobbo and receiving information from her for the purpose of furthering investigations without having first obtained legal advice was negligent.196 They referred to then Deputy Commissioner Graham Ashton’s somewhat concerning evidence to the Kellam inquiry that Victoria Police was under ‘considerable pressure’ at the time of Ms Gobbo’s use as a human source and that this ‘sometimes diverts you from the necessary sense of steps’.197

Mr Kellam concluded ‘on balance, it is highly likely that the prospect of “the glittering prize” distracted all concerned from the obvious steps that were required to be taken to mitigate the risks’.198 This ‘glittering prize’ was that Ms Gobbo would provide information leading to breakthroughs in Victoria Police’s investigations of the crimes associated with the gangland wars.

Victoria Police rightly acknowledged that it should have sought legal advice as issues began to emerge throughout Ms Gobbo’s third registration period.199 Several former and current Victoria Police officers agreed with this but contended that it was ‘very rare’ at the time for police officers to obtain legal advice about operational matters. It submitted that generally officers ‘briefed up or they tried to work it out themselves’.200

Victoria Police also submitted that a number of officers did turn their minds to the question of whether it was appropriate to use Ms Gobbo as a human source, or whether the information she had provided could be used, but assumed the issue had already been considered by more senior officers and/or the SDU, or that legal advice had already been obtained.201

Several former SDU officers accepted that legal advice should have been sought from an early stage, but submitted that they did not consider it was necessary at the time.202 Victoria Police said that, at least in part, this erroneous view was reached by some SDU officers because of their incomplete understanding of the legal issues involved.203 That is, while those officers considered they had a reasonable understanding of legal professional privilege, and could navigate these issues with Ms Gobbo, they did not fully understand the nature of a lawyer’s duty to avoid conflicts of interest.204

There is some merit in the submissions of Victoria Police and its current and former officers, but they do not adequately explain why it was considered unnecessary to obtain legal advice, especially when confronted with the legal and ethical minefield that Ms Gobbo’s use as a human source posed. A former senior Victoria Police officer, Mr Terry Purton, who was responsible for Victoria Police’s Review of the Victoria Police Drug Squad (including that unit’s relationship with human sources) in 2001 obtained external legal advice because of the importance and complexity of the legal and ethical issues involved.205 By contrast, when it came to Victoria Police’s use of Ms Gobbo, Mr Purton gave evidence that he did not consider whether legal advice was necessary as it had never entered his mind at any stage that Victoria Police was acting unlawfully.206

The Commission considers there are several possible explanations for Victoria Police officers’ prolonged failure to seek legal advice on Ms Gobbo’s use as a human source. In part this can be attributed to police adherence to the golden rule, and the fear that the more people outside the SDU who knew about Ms Gobbo’s use as a human source, the greater the danger to her.207 Some officers appeared to be concerned that members of the legal profession may gossip and therefore could not be trusted with the information.208 Ms Gobbo also expressed this concern to them.209 Certainly, if they judged all members of the legal profession by Ms Gobbo’s standards, they would have reason for that concern.

The Commission, however, is satisfied these officers knew they could find trusted, reliable, discreet independent lawyers in whom they could fully confide to provide advice. The Commission finds this reluctance was motivated, at least in part, by an appreciation that legal advice might prevent or limit the information that Victoria Police hoped Ms Gobbo would provide.210 The Commission agrees with the conclusion in the Kellam Report, that the glittering prize was front of mind for many officers who had responsibility for using Ms Gobbo as a human source, and they were not prepared to jeopardise the free flow of intelligence that could lead to breakthroughs in the gangland wars.

As time passed, and the relationship between Victoria Police and Ms Gobbo became more complex, the Commission considers that the reluctance to obtain legal advice can also be significantly attributed to a concern that exposure of Victoria Police’s conduct would have detrimental reputational repercussions and may affect the validity of past convictions and future prosecutions. This is discussed further in Chapter 8.

Failure to manage and supervise those handling Ms Gobbo

The Commission has made several findings in Chapter 8 regarding failures of senior officers to appropriately manage and supervise both SDU officers and the investigators dealing directly with Ms Gobbo.

As Victoria Police acknowledged, while the daily management of Ms Gobbo was the SDU’s responsibility, its former officers are not wholly responsible for what went wrong with her management.211 Indeed, investigators and senior officers—including from the Purana, Petra and Briars Taskforces and each taskforce’s executive group—were aware of Ms Gobbo’s use as a human source and used the information she provided to further their investigations, but, disregarding their professional obligations, did not disclose her role or the source of their information to prosecuting authorities, the courts or relevant accused persons.

Counsel Assisting submitted that it was ‘self-evident’ that supervision and management failures were contributing factors.212 They submitted that the Kellam Report findings concerning the lack of effective supervision of the SDU were well-founded.213 Mr Kellam found that any impropriety on behalf of individual police officers was ‘substantially mitigated’ by the lack of guidance and supervision from their superiors.214

Victoria Police acknowledged weaknesses in the supervision and management of the SDU officers handling Ms Gobbo, including that:

  • for much of the relevant time, the SDU did not have a full-time Inspector overseeing its operations215
  • there were insufficient resources within the SDU to manage a source like Ms Gobbo.216

Separately, many investigators knew Ms Gobbo was a human source, and were using the information that she provided in their investigations. Officers within the Purana Taskforce gave evidence that because Ms Gobbo had been registered by the SDU and was being managed by the specialist officers within that unit, she was the SDU’s responsibility and it was not for them to trespass into that area.217 The Purana Taskforce was overseen by an executive management team of senior officers, including then Assistant Commissioner, Crime, Mr Overland, and then Commander, Crime, Mr Purton.218 Purana’s investigators knew that their management team was aware of Ms Gobbo’s registration and her provision of information relevant to their investigations.219 The Commission accepts that this may have led investigators to assume Ms Gobbo’s use was authorised and being appropriately managed. Ironically, members of this management team also told the Commission that they assumed that any legal or ethical issues were being managed by the investigators or by the SDU.220

The Commission addresses the following issues that, in its assessment, contributed to the mismanagement of Ms Gobbo by both SDU officers and investigators:

  • structural and resourcing problems
  • issues with managing the SDU and investigators dealing with Ms Gobbo
  • the deference of the SDU’s managers to the ‘experts’—that is, the handlers and controllers, rather than actively supervising and challenging their actions.
Structural and resourcing issues

Victoria Police, according to official policy, had a chain of command in place for supervising officers who handled human sources from at least 2003 onwards. In many respects, that structure is similar to the current organisational structure.

Then, as now, officers appointed as the handler or co-handler of a human source were to be supervised by the following officers, in ascending order of seniority:

  • Controller
  • OIC
  • Local Source Registrar (LSR)
  • Central Source Registrar (CSR).

A centralised unit, the HSMU, provided internal oversight.221 These roles are explained in the summary of human source management terms and processes in Volume I and shown in Figure 9.1.

The use of crime taskforces—such as the Purana, Petra and Briars Taskforces—is common across law enforcement agencies; it allows investigative resources and capability to be targeted at a particular crime type or problem.

As noted above, the Purana Taskforce was overseen by an executive management team at the relevant time consisting of Mr Overland, Mr Purton and then Superintendent John Whitmore.222 Following Ms Gobbo’s registration as a human source, Mr Overland noted in his diary that Ms Gobbo would need to be managed very carefully and that Mr Purton was to be fully involved.223 This was despite Mr Overland and Mr Purton having no direct line management of the SDU officers who were responsible for managing Ms Gobbo.

In contrast with the significant involvement of officers in the crime taskforces, there was evidence from then Commander Dannye Moloney, the senior officer overseeing the SDU, that in July 2005, shortly before Ms Gobbo’s third registration, Mr Overland instructed Mr Moloney that he would not be briefed on sensitive elements of Purana Taskforce investigations that the SDU was involved with; and instead those Superintendents formally reporting to Mr Moloney would brief Mr Overland directly.224

Mr Moloney said that this instruction stayed in place throughout his tenure as the Commander responsible for the SDU.225 At the time, he neither questioned nor challenged it because he said he understood the need to know principle. The effect of this instruction, as acknowledged by Mr Moloney, was to prevent him from learning the full extent of Ms Gobbo’s involvement as a human source.226 The Superintendents who reported to Mr Moloney and should have been actively supervising the SDU could brief him only on administrative and resourcing matters, not operational matters.227 Consequently, even though Mr Moloney was formally responsible for those with direct oversight of the SDU, in practice he was not told what SDU officers were doing and so was unable to effectively supervise the unit.

The Commission accepts the submissions of both Victoria Police and former SDU officers that the SDU was inadequately resourced.228 The SDU did not have a dedicated Inspector for much of the time Ms Gobbo was registered. This lack of a dedicated Inspector meant that there was insufficient regular senior management to ensure that the SDU complied with policy and procedural requirements and that identified risks were appropriately managed.229

The frequent absence of a dedicated Inspector throughout Ms Gobbo’s third registration period exacerbated the unit’s tendency to develop reactive and ad hoc policies and procedures, which were wholly inadequate to deal with a human source as complex as Ms Gobbo. The SDU officers were left, unsupervised, to work around or adapt existing procedures to deal with each of the many new challenges Ms Gobbo threw at them.

The Commission recognises the impacts of this resourcing issue but considers that its significance should not be overstated. While this factor explains some of SDU’s conduct during Ms Gobbo’s third registration period, the structural failing outlined above—superior officers in the SDU’s chain of command not adequately overseeing its operational practices due to the involvement of Purana management—along with the issues discussed below, played a much greater role in Victoria Police’s poor supervision of the SDU.

Issues with managing the Source Development Unit and investigators dealing with Ms Gobbo

The Commission accepts the submissions of several former SDU officers that while, as controller, Officer Sandy White (a pseudonym) made most if not all of the operational decisions about Ms Gobbo on behalf of the SDU, he was conscientiously reporting up the chain of command.230 There were many instances of insufficient active management of the SDU officers’ decisions by those in the hierarchy above Mr White who occupied clearly defined formal oversight roles.

One example of a critical failure in the management and supervision of the SDU has already been discussed; that is, the failure of those approving Ms Gobbo’s risk assessment to meaningfully engage with, and potentially challenge, the SDU’s views on her registration.

Another example is the poor auditing and monitoring of the SDU’s compliance with policies and procedures, including in respect of its use of Ms Gobbo as a human source. As discussed in Chapter 8, there were two audits of the SDU’s human source files in 2006 (one by Superintendent Anthony (Tony) Biggin and another by then Superintendent Lucinda Nolan, who acted as the Superintendent in charge of the SDU for four weeks). Mr Biggin’s audit failed to sufficiently interrogate or examine Ms Gobbo’s human source file, yet made findings that risks were being appropriately managed.231 Several former SDU officers understandably submitted that Mr Biggin’s audit report reinforced the SDU’s belief that they were managing Ms Gobbo appropriately.232 When Ms Nolan conducted her audit of the SDU’s human source files, she was not permitted to examine Ms Gobbo’s file and was not aware that Ms Gobbo was a human source.233

The HSMU was responsible for administering the human source policy and processes and monitoring compliance with those processes. It therefore had a role in ensuring the SDU complied with policies, and advising the CSR of any issues identified.234 Despite this formal compliance role, the HSMU’s actual oversight of the SDU was limited. One senior officer supervising the HSMU gave evidence that he conducted a procedural audit of the SDU on 16 May 2006 to assess whether policies had been followed, but that this did not involve an audit of the actual content of the ICRs, where the information Ms Gobbo provided to the SDU was summarised.235

Mr Purton told the Commission that regular audit and compliance checks are an important and ‘best practice’ element of human source management because they promote transparency and give managers confidence that officers are managing human sources appropriately and effectively. They are also an anti-corruption tool, as they allow active oversight of what is occurring on the ground.236 The poor quality and infrequency of the audits of the SDU’s files meant that instances of policy non-compliance went unchecked and unremedied, and decisions on legal or ethical issues were not scrutinised by superior officers.

Several former and current officers and Victoria Police submitted that management and supervision issues within the SDU were compounded by the fact that at least one of the Inspectors during this period had no real experience in human source management, and this negatively impacted on their understanding of the risks and their ability to actively manage the unit.237 The Commission accepts this submission. The lack of human source experience at this level contributed to a culture where SDU supervisors and managers deferred to the SDU handlers and controllers, effectively allowing them to self-manage.

Management issues within the Crime Department were also evident. There were instances of Mr Overland, as Assistant Commissioner, Crime, approaching investigators or handlers directly rather than going through their chain of command.238 One witness told the Commission that this would have made it ‘very hard for a manager to manage when they’re out of the loop of what’s happening’.239

A further example of how these management issues contributed to the mishandling of Ms Gobbo by SDU officers is illustrated in Box 9.2.

BOX 9.2: SUPERINTENDENT OVERSIGHT AND MANAGEMENT OF THE SOURCE DEVELOPMENT UNIT, 2006–07

In mid-2006, Mr Anthony (Tony) Biggin assumed responsibility as the Superintendent and LSR for the SDU. He had extensive experience in human source management as a Superintendent in the then Intelligence and Covert Services Department and was involved in the projects that led to the establishment of the SDU.240

Mr Biggin told the Commission that he was aware of Ms Gobbo’s use as a human source before becoming responsible for the SDU and was also cognisant of the ethical and legal risks arising from using a practising defence barrister as a human source.241 He gave no evidence of taking steps to find out how these risks were being managed. He told the Commission that ‘it was left as an assumption’ that the SDU would take care of any risks and that he had no functional control over the SDU until his appointment in mid-2006.242 He also stated he did not enquire into the specifics of the information Ms Gobbo was providing and only became aware of the extent of her informing after he conducted his audit of Ms Gobbo’s human source file in April 2006.243

Mr Biggin outlined that, in his role as the LSR overseeing the SDU, his monthly review of human source files was conducted through an informal and brief conversation with the controllers. He explained that the SDU Inspector conducted more regular reviews; the HSMU performed a critical oversight role and he ‘expected that there would have been regular communications between’ the HSMU and SDU about Ms Gobbo.244

Notwithstanding that Mr Biggin told the Commission he had no knowledge about if, or how, any ethical or legal risks were being managed, in July 2007, Mr Biggin agreed to Ms Gobbo’s continued use as a human source.245

A submission on Mr Biggin’s behalf stated that:

He accepted his own failings and responsibilities with respect to Ms Gobbo’s management as a human source during the period in which the SDU [was] under his command, and expressed genuine regret for the mistakes that were made. However, at the time of these events, Mr Biggin did not appreciate that anything improper was occurring. This is despite Mr Biggin performing his role diligently and to the best of his abilities.246

Mr Biggin also submitted that, before the SDU came under his responsibility, it was not his role to ‘involve himself in, or second guess, decisions made within the specialist units within other Superintendents’ command’.247

Regardless, Mr Biggin was asked to conduct an audit of Ms Gobbo’s file, providing an opportunity, indeed an obligation, to question these decisions. Further, all officers of Victoria Police have a responsibility to uphold the values and integrity of the organisation, including by questioning and reporting improper conduct.

Once responsible for the SDU, Mr Biggin contended, he was ‘spread too thin’ and his role was onerous, making it impossible for him to closely supervise the work of the SDU. Mr Biggin submitted that he expected any issues to be reported to him by the SDU officers and Inspector, but the lack of dedicated Inspectors for much of this time impacted on the frequency of reporting.248

Deferring to the human source management ‘experts’

Unfortunately, the view of many officers in the Crime Department that it was not appropriate for them to trespass upon the SDU’s management of Ms Gobbo was also shared by some SDU managers.

One Superintendent told the Commission that if he had ‘needed to know’ the identity of a particular source, officers would have told him but that he did not recall ever asking. He said he understood his role to be a manager of policy, procedural and financial administration, ‘greasing the wheels for the [officers] to do their specialist policing work’.249 This management style directly contradicted the critical need for effective supervision in the high-risk area of human source management, something previously identified by Victoria Police as best practice. It seemed based upon an incorrect interpretation of both the role of management and the need to know principle, a variant of the golden rule of never disclosing the identity of a human source.

This willingness to defer to the SDU was particularly evident in the differing perspectives of witnesses before the Commission about which parts of the organisation were ultimately responsible for managing the legal and ethical issues concerning Ms Gobbo’s use as a human source.250 There was, however, a clear theme that other officers across the organisation were content to leave the SDU to handle the management of Ms Gobbo, including making decisions about highly complex and fraught ethical and legal issues, on the basis that they were the ‘experts’.

The Commission also heard from senior police officers that significant egos tend to exist in specialist areas such as the SDU and that there was a complacency culture in the unit that was difficult to manage.251 The Commission considers that these difficulties in managing the SDU also likely contributed to the willingness of investigators and senior officers to defer responsibility and decisions to the SDU.

Failure to understand and value the police’s role in the prosecution process

Police are an integral part of the criminal justice system in Victoria. Part of their role is investigating crime,252 another is prosecuting criminal proceedings.

Some aspects of the police’s role in criminal proceedings, and in particular their obligations of disclosure to prosecuting authorities and accused persons, are discussed in Chapter 14.

In order to grapple with the consequences of Victoria Police’s failures concerning disclosure, PII and statement taking, it is important to understand that:

  • police must take witness statements that are an accurate and full record of a witness’ account, and those statements, if relevant, must be disclosed in a criminal prosecution253
  • police must ordinarily disclose all information obtained in an investigation that is, or may be, relevant to the prosecutor, court and the accused person
  • any claims of PII over material that would otherwise have to be disclosed must be brought to the attention of a court to determine.

Legal principles and rules relating to these requirements, discussed further in Chapter 14, are longstanding and are designed to ensure that an accused person receives a fair trial and justice is administered fairly. If they are not obeyed, there is a serious risk that an accused person will not receive a fair trial and/or there may be an interference with the proper administration of justice. That is, these rules give legal force to fundamental rights and ethical and social values. If police persistently flout them, this erodes public confidence in the criminal justice system and jeopardises these values.

The approach taken to statement taking, disclosure and PII in relation to the potentially affected cases suggests that relevant Victoria Police officers may have failed to adequately comprehend and honestly discharge their duties. Chapters 7 and 8 address these issues through particular case studies, including the case studies of Mr Thomas, Mr McGrath and Mr Cooper. This approach is particularly evident in some of the examples of non-disclosure discussed in Chapter 8, where certain Victoria Police officers seem to have made extraordinary efforts to prevent Ms Gobbo’s role from becoming known.

Statement-taking failures

The Commission identified serious problems with Victoria Police’s statement taking in relation to several case studies.254 Common failures included:

  • failing to retain drafts of statements so that they were available to be disclosed to the defence if necessary
  • failing to keep a record of what changes were made to each draft statement or when and by whom those changes were made
  • failing to provide draft statements, where they did exist, to the defence when requested
  • failing to disclose Ms Gobbo’s role in the statement-taking process to the defence.

Operation Gloucester, a recent investigation by the Independent Broad-based Anti-corruption Commission (IBAC), examined Victoria Police’s witness statement-taking practices in relation to police conduct in its investigation into the murder of two Victoria Police officers in 1998 (the Lorimer Investigation). IBAC identified several examples of improper practices concerning statement taking by Victoria Police throughout the late 1990s and early 2000s, as well as in more recent investigations.255 On 10 November 2020, the Court of Appeal of the Supreme Court of Victoria set aside the conviction of Mr Jason Roberts, one of the people convicted of the murders that were the subject of the Lorimer Investigation, and ordered a re-trial, as it was satisfied there had been a substantial miscarriage of justice, in part because of these improper practices.256

Some of the improper practices discussed in IBAC’s investigation align with the evidence received by the Commission about statement taking, including:

  • officers failing to disclose all relevant material to the prosecution, defence and the courts
  • the destruction or discarding of signed statements or unsigned completed draft statements.257

Before the Commission, Victoria Police submitted that, at the relevant time, while some guidance was provided to officers about taking statements from witnesses,258 there was no policy or procedure that directed officers in relation to:

  • version control between draft statements259
  • whether or not to retain each completed draft statement260
  • keeping a clear record of what changes were made to each draft statement, or when and by whom these changes were made261
  • the circumstances in which a completed draft statement, and any record of changes in the drafting process, were required to be disclosed.262

Similarly, Victoria Police provided no training on these matters.263

Overall, the Commission is satisfied that these systemic inadequacies in the policies, processes and training contributed to the individual instances of poor statement taking outlined in Chapter 8. It is clear, however, that another significant contributing factor was individual officers concealing the extent of Ms Gobbo’s involvement in the statement-taking process and permitting her to refine the statements of her clients to assist police investigations.

Disclosure and public interest immunity failures

As set out in Chapter 8, the Commission identified numerous occasions where Victoria Police officers failed to make appropriate disclosure of the use of Ms Gobbo in police investigations to the prosecutors, accused persons and the courts.

Chapter 8 examines disclosure failures in several case studies. The Commission concludes that it should have been clear to Victoria Police officers directly involved in the oversight and use of Ms Gobbo as a human source that her status and conduct needed to be disclosed to the DPP, the accused persons and the court, unless the court, having been provided with all the relevant material, accepted Victoria Police’s PII claims. These officers should have identified the risks associated with the disclosure and use of Ms Gobbo as a human source and, at the very least, should have obtained legal advice on their disclosure obligations in these cases.

On any view, the disclosure practices in these cases were improper. This was especially concerning as Victoria Police had previously identified that a failure to manage disclosure as a key danger in the management of human sources.264

This danger was clearly articulated in 2004 in Victoria Police’s Review and Develop Best Practice Human Source Management Policy report:

The criminal justice system presents significant hurdles to the effective use of human sources by law enforcement. The criminal justice system is based on the concept of justice being transparent and open. This is the antithesis of the requirements of a human source system which is based on the covert collection of evidence and intelligence in a manner which will protect the identity of the human source and limit exposure of police methodology.

There is a great temptation by handlers to be economical with the truth by failing to properly disclose the role played by sources in police operations. Managers which condone this course of action or turn a blind eye to its existence fail to develop strategies designed to meet the requirements of a human source system and the court system. This in turn leaves themselves and their organisations open to the risk of compromisation of the source system and/or total corruption.265

Despite being aware of this danger, Victoria Police’s policies, procedures and training on disclosure and PII were inadequate in a number of respects and enabled the behaviour identified by the High Court in AB v CD in 2018.266

Historical policies, procedures and training on disclosure and public interest immunity

The Commission heard that from at least 1995 to the late 2000s, Victoria Police officers did not receive adequate training on their disclosure obligations and the making of PII claims.267 When police did receive training on disclosure and PII it was often on the job,inadequate and did not always reflect the law.268

Specifically, it is evident that the policies and training delivered both to officers dealing with human sources and to investigators generally269 did not cover the complex issues that arose in relation to dealing with Ms Gobbo. Officers were given minimal and in some cases no training on:270

  • lawyers’ professional obligations
  • identifying and responding to lawyers’ conflicts of interest
  • the management of human sources
  • the duty of disclosure.

Victoria Police told the Commission that the policies and procedures concerning police obligations of disclosure and PII were inadequate across the relevant period, which it defined relevantly as being from 1995 to 2010.271 Victoria Police acknowledged that the understanding of the duty of disclosure by officers was generally very limited and the duty was not emphasised by the organisation.272

The inadequacies in Victoria Police policies concerning disclosure and PII meant that:

  • individual officers were left with the responsibility of making a PII claim, without sufficient guidance on how to do this or the process by which material subject to a PII claim was to be presented to a court for a ruling273
  • there was no formal procedure for officers to follow when they had documents referring to a human source relevant to accused persons in prosecutions (other than in response to a subpoena)274
  • there was no formal procedure requiring officers to refer complex PII matters to their superior officer, the HSMU or a legal adviser275
  • there was no formal procedure as to the method to be adopted for withholding information that disclosed a human source.276

In the context of giving evidence in court hearings, the written policies expressly directed officers to forestall cross-examination on the identity of a human source to avoid being asked a direct question in court.277 Victoria Police has now accepted these policies were clearly inappropriate and potentially had serious consequences for the proper administration of justice.278

As noted earlier in this chapter in relation to the human source policy, Victoria Police’s policies and training that dealt with disclosure and handling PII claims in relation to human sources were, to a significant degree, shaped by the golden rule that the identity of human sources must be protected by police.279

These policies did not accurately reflect the legal obligations of police to disclose all material that is, or is possibly, relevant to accused persons. They also did not accurately explain that the general protection of human sources by PII does not automatically allow police to avoid disclosing the existence or the identity of a human source in all circumstances, or that this is a decision for the court, not police, to make. In the absence of Victoria Police providing appropriate training and clear guidance on these complex issues, it was in some respects unsurprising that many officers simply applied the golden rule strictly.

This was a profound systemic failure on the part of the organisation over many years. Recognising this, however, does not absolve individual officers. Ignorance of the law is not generally a defence in other contexts; and inadequate policies, processes and training do not simply excuse non-compliance with a legal obligation, especially given how well-established and longstanding the legal principles concerning the duty of disclosure are. The reluctance of officers involved in these events to obtain legal advice at the time on these issues was consistent with them not wanting to hear that advice. Some senior officers involved, for example, Assistant Commissioner Thomas (Luke) Cornelius APM and Mr Overland, had law degrees and told the Commission they were aware of police’s disclosure responsibilities.280 Further, after the receipt of barrister Mr Gerard Maguire’s advice in late 2011, Victoria Police was told in clear terms about many of the disclosure issues it faced.281 In fact, as noted below, very early on in Ms Gobbo’s third registration some SDU officers expressly identified that her identity as a human source could not be absolutely protected from disclosure. For this reason, the Commission rejects the submission by several former SDU officers that they could not have known that Ms Gobbo’s identity as a human source was not properly the subject of a PII claim until the High Court’s decision in 2018.282

A systemic failure to disclose

Counsel Assisting submitted that because the failure to make appropriate disclosure occurred on so many occasions and across multiple levels of Victoria Police, it appeared to be a systemic failure.283

Victoria Police has accepted that a key organisational failure was that Ms Gobbo’s involvement in police investigations was not disclosed to prosecuting authorities in a timely way in respect of a number of accused persons facing criminal charges.284

Victoria Police provided several explanations for this failure:

  • First, the application of the golden rule that Victoria Police would not reveal information identifying a human source.285 Victoria Police submitted that officers had front of mind the very serious risks to Ms Gobbo’s safety and those close to her and that heavily influenced the decisions of individual officers not to disclose.286 It submitted that individual officers—without appropriate governance structures adapted to this ‘extraordinary’ situation—were heavily focused on the desire to prevent death or serious injury, and for that reason did not properly balance this with other considerations.287 It accepted, however, that the application of the rule did not justify non-disclosure without proper balancing of the competing public interests and proper legal advice.288
  • Second, the unintended consequences of the sterile corridor principle, which resulted in the officers responsible for disclosure not being aware of certain matters that should have been disclosed to prosecutors, courts and accused persons.289
  • Third, the operation of the need to know principle, which made having a full understanding of Ms Gobbo’s role hard ‘if not practically impossible’ to achieve.290
  • Fourth, incomplete and inconsistent knowledge about disclosure obligations by officers because of inadequate training.291

As already discussed, the Commission accepts that the golden rule played a part in keeping Ms Gobbo’s identity and role as a human source secret from those external to Victoria Police. This rule was reiterated in both formal directions and on-the-job training and therefore influenced how officers understood and discharged their disclosure obligations. The law of PII is also an important and intertwined part of this, as it is possible that some officers may have wrongly believed that Ms Gobbo’s identity as a human source was absolutely protected from disclosure because of the principle of PII. The Commission notes, however, that some SDU officers managing Ms Gobbo knew from the outset of her third registration that her identity as a human source could not be protected from disclosure in all cases.292

It is important, however, not to place too much weight on the golden rule in explaining the motivations of Victoria Police officers choosing not to disclose Ms Gobbo’s role. Although Victoria Police rightly took Ms Gobbo’s personal safety very seriously, it is clear that throughout Ms Gobbo’s third registration period, police were prepared to take great risks regarding her safety in order to continue to receive valuable information. Some of these risks may have compromised her identity as a human source.

Against this background, the Commission does not accept that the application of the golden rule is a satisfactory explanation for Victoria Police’s numerous disclosure failures.

As Chapter 8 demonstrates, the Commission finds the second and third explanations, outlined above, even less persuasive. By June 2006, when Mr Thomas entered his guilty plea, just nine months into Ms Gobbo’s third registration period, many people within the organisation were aware that she was being used as a human source. By 2009, over 100 Victoria Police officers and personnel knew Ms Gobbo was a human source.293 These facts alone makes it difficult to accept that the failure to make proper disclosure was a result of the sterile corridor or need to know principle. The lengthy period of Ms Gobbo’s third registration also makes these explanations difficult to accept. While early on, these principles likely made it harder for any one officer to get a ‘full picture’ of Ms Gobbo’s role, by the time she was deregistered in 2009, a large number of officers, including at very senior levels, were aware, or should have been aware, that information she had provided to Victoria Police had led to charges being laid and prosecutions commenced against many accused persons.

Further, the SDU prepared the Strengths Weaknesses Opportunities Threats (SWOT) analysis in December 2008, a document that clearly laid out many of the risks of using Ms Gobbo as a witness because of the nature of her involvement with Victoria Police.294 Consistent with the Commission’s discussion in Chapter 8, the Petra Taskforce Board of Management discussed this SWOT analysis, at least in general terms, in January 2009, and by early 2009 several officers had knowledge of Ms Gobbo’s informing and the potential risks it posed to prosecutions.

The Commission finds the fourth explanation more compelling. It is supported by the evidence of many officers to the Commission that they were ignorant of these legal obligations and did not receive formal training, instead learning largely ‘on the job’.295 As acknowledged by Victoria Police, the organisation did not properly train its officers about the nature of their disclosure obligations, nor did it provide them with appropriate policies and guidance on disclosure and making PII claims.

Overall, the Commission accepts Counsel Assisting and Victoria Police’s submissions that the failure to make appropriate disclosure to prosecutors, courts and accused persons was primarily a systemic failure. Victoria Police should have, but did not, put in place policies and processes and provided training on the duty of disclosure and the need for police officers to comply with this legal duty. The Commission considers that, from at least 2004, this systemic failure contributed to the use of Ms Gobbo as a human source. At the time of her formal registration in 2005, if SDU officers had appreciated that Ms Gobbo’s role may have to be disclosed through court processes, it is highly probable that she would not have been registered. Certainly, had Ms Gobbo or Victoria Police disclosed her duplicitous role to her clients, it is likely that they at least some of them would not have engaged her as their lawyer.296 And had Ms Gobbo and Victoria Police disclosed her use as a human source to the prosecutors or a court, that would have immediately resulted in the cessation of her use.

Continuing obligation of disclosure: Victoria Police’s progress over the course of the Commission

By the time the High Court handed down its decision in the AB v CD proceedings in November 2018, it should have been readily apparent to Victoria Police that it would be necessary to make proper disclosure to potentially a large number of people.

By then, Victoria Police had received the Comrie Review in 2012, the Kellam Report in 2015, the Champion Report in 2016, and the Supreme Court of Victoria and Court of Appeal decisions in 2017. It was therefore on notice that it would very likely have to make disclosure to potentially affected people. Victoria Police submitted that preparation for making disclosure was underway before the High Court’s judgement.297 Of course, the police’s continuing duty to disclose relevant, or possibly relevant, material to an accused or convicted person existed entirely independently of the work of the Commission; it is a legal duty imposed by legislation and common law principles.

In May 2019, the Court of Appeal directed Victoria Police to prioritise disclosure to those who had already commenced conviction appeal proceedings.298 At that time that was five persons. During the Commission’s inquiry, the number of related criminal proceedings underway has never exceeded 10.299

Continuing disclosure over the course of the Commission’s inquiry

The Commission had ongoing discussions with Victoria Police over the course of 2019 about its progress in fulfilling its continuing disclosure obligation to potentially affected persons. The Commission suggested to Victoria Police that in addition to prioritising those who had commenced appeal proceedings, it should also prioritise making disclosure to people in custody.300 On 6 November 2019, Victoria Police formally advised the Commission that it would do this.301

By 6 December 2019, Victoria Police informed the Commission that 30 people had received disclosure from Victoria Police.302 The Commission was concerned that at least 70 potentially affected persons were in custody and of those, only 17 had received disclosure.303 The Commission wrote to the Chief Commissioner requesting that Victoria Police provide a weekly update of its progress in making disclosure to potentially affected persons.304 As a result, weekly progress reports were provided to the Commission since January 2020. These reports have demonstrated gradual progress with respect to disclosure.

Counsel Assisting submitted that both the method employed by Victoria Police to meet its continuing disclosure obligations and delay in making disclosure were concerning.305 Victoria Police rejected that submission.306 It submitted that since early 2019, it had increased resourcing levels dedicated to disclosure tasks307 and deployed substantial resources to the process of disclosure to the Office of Public Prosecutions and the Commonwealth Director of Public Prosecutions (CDPP), which were in turn disclosing information to people, where appropriate.308

Victoria Police submitted that its disclosure ‘has been, and continues to be, an immensely complex and challenging task’.309 The task of searching its Loricated database (where the material regarding Ms Gobbo’s third registration period is kept), searching for historical documents outside that database and assessing the real risks to people’s safety arising from the disclosable material is ‘difficult, large and resource intensive’.310 Victoria Police said that it had disclosed substantial material to the nine Court of Appeal appellants and Mr Faruk Orman, whose appeal was finalised in July 2019.311 On 24 August 2020, Victoria Police submitted that in addition to the disclosure in the Court of Appeal proceedings, partial disclosure had also been made during the course of the Commission’s hearings to 20 of the 154 potentially affected persons identified by Victoria Police.312 As at 30 October 2020, Victoria Police advised that it had provided partial disclosure to 20 of the 164 potentially affected persons (this figure included the Court of Appeal parties).313 It appears there has been no change between 24 August 2020 and 30 October 2020.

The Commission accepts that Victoria Police has faced substantial administrative challenges to provide disclosure to all potentially affected persons identified by Counsel Assisting. Its historical record-keeping practices have made it difficult to locate and assess potentially disclosable material. It also acknowledges that Victoria Police was directed by the Court of Appeal in May 2019 to prioritise disclosure to persons whose appeals were underway.

While recognising these challenges, the Commission accepts the submissions of Counsel Assisting that the delay in Victoria Police acquitting its continuing obligations of disclosure to potentially affected persons is a matter of concern.314 Given the lengthy period since Victoria Police first became aware that it may have to make disclosure to these persons, its progress is unsatisfactory. At 30 October 2020, the task is still incomplete, but Victoria Police told the Commission it was committed to providing all disclosable material contained on its Loricated database to potentially affected persons by 30 November 2020.315 Ultimately, the Commission considers that Victoria Police has not sufficiently prioritised its continuing obligation to make disclosure to potentially affected persons. It is very important that Victoria Police continues to fulfil these obligations in a timely manner.

The Court of Appeal has continued to reiterate the fundamental importance of the duty of disclosure in two decisions regarding related criminal proceedings involving Mr Orman and Mr Zlate Cvetanovski.

In relation to Mr Cvetanovski’s proceedings, on 30 October 2020, the Court of Appeal overturned some of Mr Cvetanovski’s convictions relating to drug offences. Chapters 7 and 8 discuss Victoria Police and Ms Gobbo’s conduct in relation to Mr Cvetanovski’s trial. The Court found that there had been a substantial miscarriage of justice in Mr Cvetanovski’s case because of a failure to disclose information about payments made by Victoria Police to a key prosecution witness in his trial, Mr Cooper, and that Ms Gobbo was acting for him while she was a human source.316 The DPP accepted that, in Mr Cvetanovski’s case, this non-disclosure meant that:

  • Mr Cvetanovski could not properly interrogate Mr Cooper, police officers or Ms Gobbo about the nature, circumstances and extent of the payments
  • the jury was not able to assess the ways that Ms Gobbo’s involvement in Victoria Police’s payments to Mr Cooper affected his credibility or the truth of the evidence more generally
  • Mr Cvetanovski was unable to undertake further investigations and conduct further cross-examination, as Ms Gobbo’s involvement in his case was not disclosed.317

The Commission heard evidence about payments made by Victoria Police to Mr Cooper while he was in prison.318 The Commission issued a notice to produce to Victoria Police requesting the production of documents regarding payments made to Mr Cooper. Though some information was produced in April and May 2020,319 Victoria Police did not inform the Commission that:

  • it first received documents regarding payments to Mr Cooper from Corrections Victoria on 26 February 2020
  • it had not disclosed the information to Mr Cvetanovski or other potentially affected cases in which Mr Cooper had given evidence.

After the delivery of the Court of Appeal’s decision, the Commission wrote to the DPP to indicate that a similar failure to make disclosure about the payments made to Mr Cooper may have occurred in 25 other prosecutions in which his evidence was relied upon.320

While conceding there may be reasons for Victoria Police’s late disclosure of this information to the Commission, it would be concerning if this evidenced ongoing poor disclosure practices.

Failure to accept responsibility

The Commission heard a number of explanations from Victoria Police and many of its current and former officers for the failures that flowed from the non-disclosure about and the recruitment, use and management of Ms Gobbo as a human source. In many cases, these explanations sought to deflect responsibility to others.

2005 to 2009: The many explanations for why someone else was responsible

As discussed above, many different explanations were provided by officers regarding the use of Ms Gobbo as a human source during her third registration.

Their explanations to the Commission are set out in Boxes 9.3 to 9.6.

BOX 9.3: SUMMARY OF EXPLANATIONS OF FORMER OFFICERS OF THE SOURCE DEVELOPMENT UNIT

Police officers of SDU said that:

  • Ms Gobbo was responsible for managing her own ethical and legal obligations.321
  • SDU officers were under-resourced and under-supervised and this impacted on their ability to perform their role throughout Ms Gobbo’s registration as a human source.322
  • SDU officers appropriately reported up to superior officers within and outside of their direct line of command on the unit’s use of Ms Gobbo as a human source.323
  • SDU officers were acting under the direction of senior officers.324
  • The investigators within the Crime Department and the HSMU were primarily responsible for managing police disclosure obligations, not the SDU.325

BOX 9.4: SUMMARY OF EXPLANATIONS OF OFFICERS WITH OVERSIGHT OF THE SOURCE DEVELOPMENT UNIT

  • Superintendent Mark Porter, a former LSR and CSR and supervisor of the HSMU said that the HSMU primarily fulfilled an administrative role, including in relation to auditing SDU files, and was not responsible for supervision or oversight of the SDU.326
  • Mr Porter said that when he was performing the roles of LSR and CSR he was not aware of the detail of the SDU’s involvement in Purana Taskforce operations because it was not information he needed to know.327 He said there would have been no reason for him to question the appropriateness of Ms Gobbo’s registration as a human source as the SDU would have given proper consideration to all relevant matters.328
  • Mr Anthony (Tony) Biggin said the SDU were the experts in human source management, and it was a matter for them to assess and manage the risks.329 He said that his management of the SDU was complicated by the fact that it was not adequately funded when initially established; therefore, a significant amount of his time was spent on seeking funding for the SDU rather than focusing on its operations.330
  • Mr Biggin also said that the officers with formal oversight of the SDU were not actively involved in the management of Ms Gobbo, as the then Assistant Commissioner, Crime, Mr Simon Overland was leading the taskforces using Ms Gobbo as a human source and the information she provided.331

BOX 9.5: SUMMARY OF EXPLANATIONS OF OFFICERS WITHIN THE PURANA TASKFORCE, PETRA TASKFORCE AND BRIARS TASKFORCE

Police officers within the Purana, Petra and Briars Taskforces said that:

  • They took comfort that senior officers had approved and sanctioned Ms Gobbo’s use as a human source.332
  • They were too busy with other duties in the context of the gangland wars and were not able to look at the full picture.333
  • They relied on the SDU to assess and manage the risks as they were experts in human source management.334
  • They could not stop people from communicating with Ms Gobbo or requesting her as their lawyer, relying on section 464C of the Crimes Act 1958 (Vic).

BOX 9.6: SUMMARY OF EXPLANATIONS OF OFFICERS IN SENIOR LEADERSHIP POSITIONS

  • Mr Simon Overland said he was not responsible for the decision to register Ms Gobbo but did accept some responsibility for her use in the context of the taskforce investigations, and said he had directed his investigators not to allow her to inform on her own clients.335 Mr Overland did not consider it necessary, however, to monitor whether or not this direction was complied with by his investigators because, as they were very senior and experienced, he thought they knew what they were doing.336 He said that he did not pay attention to whom Ms Gobbo was representing.337
  • Mr Thomas (Luke) Cornelius, then Assistant Commissioner of the Ethical Standards Department, said it was not necessary for him to know either the identity of Ms Gobbo or the details of her use as a human source, as he assumed the SDU would have recognised the very serious ethical concerns.338
  • Mr Dannye Moloney, then Commander responsible for the SDU and other covert services, said he had limited capacity to oversee the SDU and its officers because of his other responsibilities, particularly his management responsibility for the Ceja Taskforce until December 2006.339 In addition, he said he was prevented from learning the extent of Ms Gobbo’s role as a human source because of the effect of Mr Overland’s instruction that he would not be briefed on the sensitive parts of the SDU’s operational matters.340 After he became aware of Ms Gobbo’s registration he trusted that the officers reporting to him would ‘do [their] jobs’ and bring appropriate matters to his attention.341

Counsel Assisting submitted that it was open on the evidence to find that many current and former officers thought that responsibility for the authorisation and use of Ms Gobbo as a human source, and the appropriateness of that, lay with someone else, often Ms Gobbo.342 Counsel Assisting argued that while most current and former Victoria Police officers who appeared before the Commission were aware of the risks of using Ms Gobbo as a human source, they were reluctant to concede that the responsibility lay with them.343

In response, Victoria Police submitted that Counsel Assisting had correctly identified that a number of officers gave evidence that they considered that issues relating to the authorisation and handling of Ms Gobbo, as well as associated disclosure issues, were for others to manage and not for them.344 It said that the officers involved were unclear about their roles and responsibilities, and this lack of clarity was an important part of the explanation of how this was able to occur.345 Victoria Police also highlighted the operation of the sterile corridor and need to know principles, and governance failures, as contributing to this confusion about where responsibility lay.346 Victoria Police specifically rejected Counsel Assisting’s criticism that officers had failed to take responsibility for Ms Gobbo’s use and non-disclosure.347

As discussed earlier in this chapter, many current and former Victoria Police officers submitted that Ms Gobbo bears a significant amount of responsibility for the events that occurred. While the Commission in no way minimises Ms Gobbo’s role, it considers that these officers failed to adequately accept individual responsibility for conduct that, collectively, was apt to corrupt the criminal justice system. Further, while Victoria Police has now publicly acknowledged that in its view, the key failures were organisational and that it therefore bears the primary responsibility for these events, its submissions about the extent of Ms Gobbo’s responsibility appear to undermine this acknowledgment.348

Ultimately, the Commission accepts Counsel Assisting’s contention that the evidence demonstrates an unhealthy reluctance by many former and current Victoria Police officers to accept individual responsibility for their contribution to the collective and institutional failings arising from Victoria Police’s use and management of Ms Gobbo as a human source between 2005 and 2009.

The systemic nature of this failing and many explanations given by different people involved in these events is illustrated in Figure 9.2.

Figure 9.2: Summary of explanations of conduct by Victoria Police officers and Ms Gobbo
Figure 9.2 - Summary of explanations of conduct by Victoria Police officers and Ms Gobbo
2009 to 2016: Delaying accountability and resisting external scrutiny

As is clear from the Commission’s assessment of the evidence outlined in Chapter 8, in 2009, after the SWOT analysis prepared by the SDU was circulated, several senior officers within Victoria Police were, or should have been, aware of the potentially extremely serious implications of Ms Gobbo’s use and management as a human source, including for past convictions and ongoing prosecutions.349 Given the risks to public confidence in Victoria Police and the administration of justice, and the impact on the fundamental rights of a large number of convicted and accused persons, Victoria Police should have acted urgently and decisively to provide disclosure to potentially affected persons, which, as at 30 October 2020, is still incomplete.

The Commission considers that Victoria Police acted too slowly to address these potential impacts. Consistent with the analysis in Chapter 8, the organisation did not proactively report or disclose these matters to the appropriate agencies.

Victoria Police rejected the contention that it failed to appropriately report or disclose the issues flowing from Ms Gobbo’s use as a human source.350 It submitted that:

  • in August 2010 (before the Comrie Review), Victoria Police had briefed the OPI, with the VGSO, during the course of civil litigation about Ms Gobbo’s role as a human source. Victoria Police said that what the OPI did or did not do with that information has not been explored by the Commission351
  • the issues regarding the handling of Ms Gobbo came to light because of the Comrie Review, a process commissioned by senior Victoria Police officers in November 2011352
  • the ‘out of scope’ matters identified by Mr Comrie were given to the OPI by a senior police officer (Superintendent Stephen Gleeson) with the support of the Victoria Police Legal Services Department in 2012
  • the ‘out of scope’ matters were provided to the CDPP, IBAC and the Legal Services Commissioner.

The matters that fell outside the scope of the Comrie Review included descriptions of some of the information and assistance Ms Gobbo provided to her SDU handlers about clients she was legally representing, including that:

  • Ms Gobbo advised her handlers about who would provide evidence at her client’s forthcoming bail application and what that evidence would be
  • Ms Gobbo advised her handlers about technical defences that were open to her client
  • Ms Gobbo reviewed and identified deficiencies in the criminal brief against her client and handlers relayed that information to officers responsible for preparing the brief.353

Victoria Police also submitted it took steps to inform the DPP of the ‘out of scope’ matters in 2012.354

According to Victoria Police, it provided these external agencies and prosecuting authorities with enough information about Ms Gobbo’s role as a human source for those bodies to be alive to the potential issues, including that prosecutions may potentially be affected. Victoria Police submitted that, while it was ‘legitimate to examine how long the whole process took’ there could be ‘no doubt that [Victoria Police] was the prime catalyst’ for these matters becoming known by these agencies and authorities.355

Under the Inquiries Act 2014 (Vic) the Commission does not have jurisdiction to inquire into or exercise any powers in relation to the OPI, IBAC or the DPP.356 Accordingly, the Commission does not consider it appropriate to engage in commentary about those bodies’ involvement in the events referred to above by Victoria Police. As is evident from the discussion in Chapter 8 and Figure 9.2, senior OPI personnel were involved in some of the events the subject of the Commission’s inquiry, particularly in Mr Ashton’s capacity as a member of the joint Briars and Petra Taskforces. It is possible this involvement may have given rise to a perception that the OPI sanctioned Victoria Police’s use and management of Ms Gobbo.

Nonetheless, and consistent with the discussion and relevant findings in Chapter 8, the Commission does not accept that Victoria Police acted with appropriate speed to:

  • inform itself of the scope of the problems arising from Ms Gobbo’s use, by reviewing all information she provided to police and determining whether and how that information was used in investigations and prosecutions
  • alert external oversight bodies or prosecuting authorities about the extent of the potential problem.

Overall, the Commission is satisfied that the approach Victoria Police took demonstrated a reluctance to accept responsibility for what had occurred and to be fully transparent about the size and scope of the problem.

As discussed in Chapter 8, in 2016, after the DPP had concluded that it was necessary to disclose Ms Gobbo’s conduct to several individuals because her use as a human source may have tainted their convictions,357 Victoria Police and Ms Gobbo commenced legal proceedings to prevent that from happening.358 These proceedings prevented these events from coming to light for a further two years.

Victoria Police was the only organisation in possession of all the relevant material about its use and management of Ms Gobbo as a human source. As such, the only way these events could have ever fully come to light is if Victoria Police disclosed them of its own volition or was compelled to do so by a court or external inquiry. The Commission is deeply concerned with the length of time it has taken for the full scope of Ms Gobbo’s involvement with Victoria Police to emerge.

Conclusions and recommendations

While one focus of this Commission has been the conduct of individual officers, it is equally important to consider systemic issues and look broadly at instances of multiple failings across Victoria Police that may reflect problematic cultural attitudes. This chapter has addressed systemic issues that the Commission considers significantly contributed to Victoria Police’s failures in its disclosures about and recruitment, handling and management of Ms Gobbo as a human source. Given those systemic failures, it is important for the public, Victorian Government and the courts to be assured that Victoria Police has already addressed, or is in the process of addressing these issues, so that past mistakes are not repeated.

Victoria Police has already taken steps to improve several aspects of its human source management framework, partly in response to the events that are the subject of terms of reference 1 and 2. These include improving policies and processes around the use of human sources subject to confidentiality and privilege, and implementing new governance arrangements. The Commission considers, however, that Victoria Police must do more to reform its current management of human sources, and proposes specific reforms tailored to address current systemic concerns in Chapters 12 and 13.

Victoria Police has also taken steps to improve its policies, practices and training about disclosure and PII. The Commission recommends reforms to strengthen and clarify these critical obligations in Chapter 14. IBAC’s Operation Gloucester report has also recently made a series of recommendations to improve Victoria Police’s statement-taking practices, processes and training, having considered similar systemic issues to those of concern to this Commission.359

Victoria Police has reiterated its commitment to fulfilling its current and future disclosure obligations and to work proactively with key stakeholders, including prosecutors and the courts.360

The Commission is encouraged by the organisation’s public commitment to this critical work as it suggests a positive shift in Victoria Police’s attitude towards the importance of disclosure and, more generally, the proper police role in the prosecution process. The Commission notes, however, that at the time of writing, Victoria Police had not yet made full disclosure to all persons potentially affected by the conduct of Ms Gobbo as a human source. This is further discussed below.

Victoria Police’s public apology and acknowledgement of responsibility for the organisational failings that contributed to the events at the heart of this Commission’s inquiry, although belated, suggest it is now taking significant and positive steps towards addressing its past failures.

The need for timely disclosure

As outlined above, Victoria Police, as part of the prosecution, has an ongoing responsibility to disclose information about its use of Ms Gobbo as a human source to people whose cases may have been affected. At the time of drafting this final report, Victoria Police had not discharged its disclosure obligations in relation to all potentially affected persons.

Since January 2020, Victoria Police has provided a weekly report to the Commission on the progress of its disclosure to potentially affected persons. The Commission considers it important that Victoria Police continues to regularly report on, and is held to account for, its timely disclosure to those people.

In Chapter 17, the Commission recommends that the Victorian Government establishes:

  • an Implementation Taskforce—to coordinate all implementation tasks associated with the Commission’s recommendations
  • an Implementation Monitor—to assess and report on the progress and adequacy of implementation of the Commission’s recommendations.

The Commission recommends that Victoria Police provides monthly progress reports to the proposed Implementation Taskforce, until they have met their disclosure obligations to all potentially affected persons. These reports should also be provided to the proposed Implementation Monitor to assist its monitoring and reporting on the implementation activities of the Taskforce and in turn the Attorney-General’s reports to Parliament.

RECOMMENDATION 5

That Victoria Police provides monthly progress reports to the Implementation Taskforce proposed in Recommendation 107, regarding its progress in fulfilling its ongoing disclosure obligations to potentially affected persons identified by the Commission. These reports should also be made available to the Implementation Monitor proposed in Recommendation 108.

Endnotes

1 As discussed in Chapter 8 and consistent with the submissions of Counsel Assisting: see Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 1, 104 [451].

2 Responsive submission, Victoria Police, 24 August 2020, 10 [2.10].

3 Responsive submission, Victoria Police, 24 August 2020, 13 [2.32], [2.35] (emphasis in original).

4 Responsive submission, Victoria Police (specified former and current officers), 8 September 2020, 1–2 [1.5]–[1.6].

5 Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 3 [1.8]; Responsive submission, Victoria Police, 24 August 2020, 39 [19.2]; Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 95 [407].

6 Victoria Police submitted that it took the appropriate steps to have these events internally and externally reviewed: see Responsive submission, Victoria Police, 24 August 2020, 18–19 [5.1]–[5.8]. These submissions and the Commission’s views are addressed later in this chapter.

7 See ‘Only 42% of Victorians rate the Victorian Police highly for their ethics and honesty’, Roy Morgan (Survey, 17 September 2020) < www.roymorgan.com/findings/8519-stage-4-restrictions-in-victoria-week-4…; Victoria Police, Victoria Police Annual Report 2019–20 (Report, October 2020) 17. The Annual Report indicated 81.3 per cent of the community have confidence in the Victoria Police, 6.6 per cent below the 2019/20 target of 87 per cent. This measure is considered an integrity indicator and the result is a negative outcome.

8 This evidence is addressed in detail later in this chapter in the section titled ‘Failure to accept responsibility’.

9 Responsive submission, Victoria Police, 24 August 2020, 11 [2.14].

10 Responsive submission, Victoria Police, 24 August 2020, 10 [2.10].

11 Responsive submission, Victoria Police, 24 August 2020, 11 [2.16].

12 Responsive submission, Victoria Police, 24 August 2020, 10 [2.8].

13 Responsive submission, Victoria Police, 24 August 2020, 10 [2.9].

14 Responsive submission, Victoria Police, 6 October 2020, 4 [4.3].

15 Responsive submission, Victoria Police, 6 October 2020, 4 [4.3]–[4.4].

16 Responsive submission, Victoria Police, 6 October 2020, 4 [4.4].

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

18 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1108 [4799].

19 Responsive submission, Mr Graham Ashton, 7 August 2020, 43–5 [211]–[217].

20 Responsive submission, Mr Graham Ashton, 7 August 2020, 45 [217].

21 Responsive submission, Mr Graham Ashton, 7 August 2020, 43–4 [211]–[213].

22 Exhibit RC1942 Transcript of Chief Commissioner Graham Ashton’s 3AW interview, 28 March 2019, 2–3.

23 Exhibit RC1945 Transcript of Chief Commissioner Graham Ashton’s 3AW interview, 27 June 2019, 18.

24 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1103 [4786].

25 Independent Broad-based Anti-corruption Commission, Unauthorised Access and Disclosure of Information Held by Victoria Police—An Analysis of Corruption Risks and Prevention Opportunities (Report, September 2019) 28; Independent Broad-based Anti-corruption Commission, Annual Report 2018/19 (Report, 29 October 2019); Peter Collins, Report into Falsification of PBT Numbers (Report, 31 August 2018) 6.

26 Victoria Police Act 2013 (Vic) s 8.

27 Victoria Police Act 2013 (Vic) s 13.

28 Victoria Police Act 2013 (Vic) ss 16(1), (2)(c).

29 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1085 [4718]; Responsive submission, Victoria Police, 24 August 2020, 64 [33.4].

30 Responsive submission, Victoria Police, 24 August 2020, 64 [34.1].

31 Responsive submission, Victoria Police, 24 August 2020, 64 [34.3]; Office of Police Integrity, Report on the Leak of a Sensitive Victorian Police Information Report (Report, February 2005) 7 [24].

32 In 2004, Victoria Police established a specialised unit to manage high-risk human sources, known then as the Dedicated Source Unit. In 2006, that unit changed its name to the Source Development Unit (SDU). In this chapter, the Commission refers to both units as the SDU.

33 Responsive submission, Victoria Police, 24 August 2020, 64–65 [34.6]–[34.9].

34 Transcript of Mr Anthony (Tony) Biggin, 10 October 2019, 7640.

35 Transcript of Mr Anthony (Tony) Biggin, 10 October 2019, 7640–1.

36 Transcript of Mr Anthony (Tony) Biggin, 10 October 2019, 7637.

37 Transcript of Mr Terry Purton, 14 May 2019, 1714, 1729–30; Transcript of Commander Stuart Bateson, 2 July 2019, 3350–2; Transcript of Mr Gavan Ryan, 9 August 2019, 4244–5; Transcript of Mr Simon Overland, 16 December 2019, 11343–5.

38 Exhibit RC0915b Statement of Mr Simon Overland, 19 September 2019, 11 [59].

39 Royal Commission into the New South Wales Police Service (Final Report, May 1997) vol 1, 38. This Royal Commission is commonly known as the ‘Wood Royal Commission’.

40 Victoria Police, Taskforce Deliver 2018: Investigation into the Falsification of Preliminary Breath Tests within Victoria Police (Report, 9 November 2018). See also Office of Police Integrity, Past Patterns—Future Directions: Victoria Police and the Problem of Corruption and Serious Misconduct (Report, 2007).

41 See Office of Police Integrity, The Victorian Armed Offenders Squad—A Case Study (Report, 2008); Victorian Ombudsman, Ceja Task Force Drug Related Corruption: Second Interim Report of Ombudsman Victoria (Report No 2, June 2004).

42 See Victorian Equal Opportunity and Human Rights Commission, Independent Review into Sex Discrimination and Sexual Harassment, Including Predatory Behaviour, in Victoria Police: Phase 1 (Report, December 2015). The Commission also produced two further reports in September 2017 (Phase 2) and August 2019 (Phase 3).

43 See Independent Broad-based Anti-corruption Commission, Operation Ross Special Report (Report, November 2016).

44 See Victoria Police, Taskforce Deliver 2018: Investigation into the Falsification of Preliminary Breath Tests within Victoria Police (Report, 9 November 2018); Office of Police Integrity, Leak of a Sensitive Victoria Police Information Report (Report, February 2005); Office of Police Integrity, Investigation into the Publication of One Down, One Missing (Report, September 2005).

45 See Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020).

46 See, eg, Victorian Equal Opportunity and Human Rights Commission, Independent Review into Sex Discrimination and Sexual Harassment, Including Predatory Behaviour, in Victoria Police: Phase 3 (Report, August 2019) 4.

47 Victorian Ombudsman, Ceja Task Force—Drug Related Corruption—Second Interim Report of Ombudsman Victoria (Report No 2, June 2004) 10.

48 Office of Police Integrity, The Victorian Armed Offenders Squad—A Case Study (Report, 2008) 13; Office of Police Integrity, Past Patterns—Future Directions: Victoria Police and the Problem of Corruption and Serious Misconduct (Report, October 2007) 136; Victorian Ombudsman, Ceja Task Force Drug Related Corruption: Second Interim Report of Ombudsman Victoria (Report No 2, June 2004) 14; Victorian Ombudsman, Operation Bart—Investigation of Allegations against Police in Relation to the Shutter Allocation System (Final Report, May 1998) 55; Victorian Equal Opportunity and Human Rights Commission, Independent Review into Sex Discrimination and Sexual Harassment, Including Predatory Behaviour, in Victoria Police: Phase 3 (Report, August 2019) 8.

49 Victorian Equal Opportunity and Human Rights Commission, Independent Review into Sex Discrimination and Sexual Harassment, Including Predatory Behaviour, in Victoria Police: Phase 1 (Report, December 2015) 14, 56, 142; Independent Broad-based Anti-corruption Commission, Operation Ross (Special Report, November 2016) 57; Peter Collins, Report into Falsification of PBT Numbers (Report, 31 August 2018) 6–7; Victorian Ombudsman, Investigation into an Allegation about Victoria Police Crime Statistics (Report, June 2011) 4.

50 David Barton and Sue Tait, Office of Police Integrity, Human Rights and Cultural Change in Policing (Paper, December 2008) 8–10; Independent Broad-based Anti-corruption Commission, Operation Ross (Special Report, November 2016) 8, 18, 23.

51 Office of Police Integrity, The Victorian Armed Offenders Squad—A Case Study (Report, 2008) 17; State Services Authority, Inquiry into the Command, Management and Functions of the Senior Structure of Victoria Police (Report, 2012) 15; Independent Broad-based Anti-corruption Commission, Operation Ross (Special Report, November 2016) 6.

52 Peter Collins, Report into Falsification of PBT Numbers (Report, 31 August 2018) 6; State Services Authority, Inquiry into the Command, Management and Functions of the Senior Structure of Victoria Police (Report, 2012) 33; Victorian Equal Opportunity and Human Rights Commission, Independent Review into Sex Discrimination and Sexual Harassment, Including Predatory Behaviour, in Victoria Police: Phase 3 (Report, August 2019) 7–8.

53 Independent Broad-based Anti-corruption Commission, Predatory Behaviour by Victoria Police Officers against Vulnerable Persons (Report, 2 December 2015) 2; Victorian Ombudsman, Operation Bart—Investigation of Allegations against Police in relation to the Shutter Allocation System (Final Report, May 1998) 58 [9.3]–[9.4].

54 Peter Collins, Report into Falsification of PBT Numbers (Report, 31 August 2018) 6–7.

55 Victorian Equal Opportunity and Human Rights Commission, Independent Review into Sex Discrimination and Sexual Harassment, Including Predatory Behaviour, in Victoria Police: Phase 3 (Report, August 2019). 8; State Services Authority, Inquiry into the Command, Management and Functions of the Senior Structure of Victoria Police (Report, 2012) 16–17; David Barton and Sue Tait, Office of Police Integrity, Human Rights and Cultural Change in Policing (Paper, December 2008) 7; Office of Police Integrity, Past Patterns—Future Directions: Victoria Police and the Problem of Corruption and Serious Misconduct (Report, 2007) 132.

56 Victorian Equal Opportunity and Human Rights Commission, Independent Review into Sex Discrimination and Sexual Harassment, Including Predatory Behaviour, in Victoria Police: Phase 1 (Report, December 2015) 17.

57 Victorian Equal Opportunity and Human Rights Commission, Independent Review into Sex Discrimination and Sexual Harassment, Including Predatory Behaviour, in Victoria Police: Phase 1 (Report, December 2015) 19.

58 Victorian Equal Opportunity and Human Rights Commission, Independent Review into Sex Discrimination and Sexual Harassment, Including Predatory Behaviour, in Victoria Police: Phase 3 (Report, August 2019) vi.

59 Independent Broad-based Anti-corruption Commission, Unauthorised Access and Disclosure of Information Held by Victoria Police—An Analysis of Corruption Risks and Prevention Opportunities (Report, September 2019) 28; Independent Broad-based Anti-corruption Commission, Annual Report 2018/19 (Report, 29 October 2019); Peter Collins, Report into Falsification of PBT Numbers (Report, 31 August 2018) 6.

60 Office of Police Integrity, Past Patterns—Future Directions: Victoria Police and the Problem of Corruption and Serious Misconduct (Report, 2007) 136.

61 Office of Police Integrity, Past Patterns—Future Directions: Victoria Police and the Problem of Corruption and Serious Misconduct (Report, 2007) 132, 136.

62 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1099 [4767].

63 Responsive submission, Victoria Police, 24 August 2020, 12 [2.22].

64 Responsive submission, Victoria Police, 24 August 2020, 11 [2.17], 12 [2.22], 20 [5.16].

65 Responsive submission, Victoria Police, 24 August 2020, 166 [78.59]–[78.62].

66 Exhibit RC0915b Statement of Mr Simon Overland, 19 September 2019, 7 [34].

67 Exhibit RC0915b Statement of Mr Simon Overland, 19 September 2019, 11 [54].

68 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 23 [6.6].

69 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 2 [7] citing Exhibit RC0299a Dedicated Source Unit Standard Operating Procedures, 27 December 2004.

70 See, eg, Exhibit RC0464b Statement of Mr James (Jim) O’Brien, 14 June 2019, 4 [11].

71 Exhibit RC0915b Statement of Mr Simon Overland, 19 September 2019, 23 [124], 25 [131], [133]; Transcript of Mr Anthony (Tony) Biggin, 10 October 2019, 7735–6.

72 Exhibit RC1325b Statement of Mr Dannye Moloney, 28 November 2019, 8 [44]; Responsive submission, Victoria Police, 24 August 2020, 20 [5.16]; Responsive submission, Victoria Police (annexure: specified individual officers), 24 August 2020, 138 [56.8].

73 Based on Responsive submission, Victoria Police, 24 August 2020, 166 [78.64].

74 Exhibit RC0915b Statement of Mr Simon Overland, 19 September 2019, 7 [36].

75 Exhibit RC1171b Statement of Mr Kenneth (Ken) Lay, 9 February 2020, 2–3 [9]–[11]; Exhibit RC0915b Statement of Mr Simon Overland, 19 September 2019, 7 [36], 8 [38].

76 Exhibit RC1171b Statement of Mr Kenneth (Ken) Lay, 9 February 2020, 2–3 [11].

77 Exhibit RC1171b Statement of Mr Kenneth (Ken) Lay, 9 February 2020, 2–3 [8]–[11].

78 Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 29 [11.26]–[11.27].

79 Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 29 [11.21]–[11.22].

80 Responsive submission, Victoria Police, 24 August 2020, 20 [5.16].

81 Responsive submission, Victoria Police, 24 August 2020, 20 [5.16].

82 Responsive submission, Victoria Police (specified former and current officers), 8 September 2020, 1 [1.5].

83 Responsive submission, Victoria Police, 24 August 2020, 20–1 [5.17]. Victoria Police also noted that the current intelligence and case management system, Interpose, requires the HSMU to monitor and be made aware of any issues concerning high-risk sources.

84 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 23 [489]; Exhibit RC0915b Statement of Mr Simon Overland, 19 September 2019,14 [73]; Exhibit RC0856b Statement of Chief Commissioner Graham Ashton, 30 August 2019, 9 [85].

85 Mr Overland, as then Assistant Commissioner, Crime, instigated a review of human source management and sat on the Steering Committee of the review: Exhibit RC0915b Statement of Mr Simon Overland, 19 September 2019, 7 [34]; Exhibit RC1325b Statement of Dannye Moloney, 28 November 2019, 6 [32]; Exhibit RC0276 Review & Develop Best Practice Human Source Management Policy 2004, 16 April 2004, 10; Exhibit RC0577c Statement of Mr Anthony (Tony) Biggin, 25 July 2019, 4–5 [21]–[28]; Transcript of Mr Terry Purton, 14 May 2019, 1690–1, 1695.

86 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1095 [4758].

87 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1096 [4761.6].

88 Responsive submission, Victoria Police, 24 August 2020, 66 [35.6]–[35.9].

89 Responsive submission, Victoria Police, 24 August 2020, 66 [35.11].

90 Responsive submission, Victoria Police, 24 August 2020, 65–6 [35.3]–[35.4].

91 See, eg, Exhibit RC0915b Statement of Mr Simon Overland, 19 September 2019, 17 [90]–[91].

92 See, eg, Exhibit RC0591 Officer ‘Black’ diary, 13 April 2006, 135; Exhibit RC0267b Transcript of meeting between Nicola Gobbo, ‘Sandy White’ and ‘Peter Smith’, 16 September 2005, 15; Exhibit RC0915b Statement of Mr Simon Overland, 19 September 2019, 17 [92]; Exhibit RC0277c Issue cover sheet, Audit conduct of human source 21803838 records, 28 April 2006.

93 Many of these risks, described as ‘dangers’, were outlined by Victoria Police at the time: Exhibit RC0276 Review &Develop Best Practice Human Source Management Policy 2004, 16 April 2004, 17–19.

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

95 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 195–6 [4.6]; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 30; Responsive submission, Victoria Police, 24 August 2020, 67 [36.3].

96 Responsive submission, Victoria Police, 24 August 2020, 72 [39.1].

97 Responsive submission, Victoria Police, 24 August 2020, 72 [39.2].

98 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 30, 9.

99 Responsive submission, Victoria Police, 24 August 2020, 72 [39.4].

100 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 28.

101 inneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1097 [4764]; Responsive submission, Victoria Police, 24 August 2020, 12 [2.23].

102 As discussed in Chapter 6, the process of registering a human source at that time involved an officer giving a registration form in an unsealed envelope to a more senior officer, who would review the information and seal the envelope. See Transcript of Assistant Commissioner Neil Paterson, 27 March 2019, 316.

103 Exhibit RC0032 Statement of Detective Inspector Gavan Segrave, 1 April 2019, 5 [14].

104 Responsive submission, Victoria Police, 24 August 2020, 13 [2.32].

105 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 10 [50].

106 This process commenced with the issuing of the ‘Chief Commissioner’s Instruction 7/03’ on 22 September 2003: Exhibit RC0008, Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 27 [4.14].

107 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 27 [4.14]–[4.17].

108 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 27 [4.16].

109 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 27 [4.17].

110 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1097 [4763]–[4764]; Responsive submission, Victoria Police, 24 August 2019, 47–9 [27.1]; Exhibit RC0108 Review of the Victoria Police Drug Squad, Steering Committee Endorsed Final Report, November 2011, 31;Responsive submission, Victoria Police, 24 August 2020, 103–4 [53.5]–[53.12].

111 Notably, the project initiated by Mr Simon Overland in mid-2003, ‘Review and Develop Best Practice Human Source Management Policy’: Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 335 [1502]. See also Exhibit RC0108 Victoria Police, Review of the Victoria Police Drug Squad, Report, November 2001, 21; Exhibit RC1807b Victoria Police, Operation Hemi—C3-4/2218/2000 Final Investigation Report, 11 July 2002; Exhibit RC0577c Statement of Anthony (Tony) Biggin, 25 July 2019, 4–6 [21]–[34]; Exhibit RC920b Statement of Ms Christine Nixon, 30 October 2019, 7 [35].

112 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 6 [2].

113 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 18 [3.81].

114 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 2 [7] citing Exhibit RC0299a Dedicated Source Unit Standard Operating Procedures, 27 December 2004.

115 See Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 34; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 35.

116 See Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 29 [4.29]; Responsive submission, Victoria Police, 24 August 2020, 21–2 [7.1]–[7.2].

117 Exhibit RC1933a Statement of Assistant Commissioner Kevin Casey, 15 August 2020, 10 [58]–[59].

118 Responsive submission, Victoria Police, 24 August 2020, 66 [35.5], 74 [40.14].

119 Responsive submission, Victoria Police, 24 August 2020, 66 [35.5], 74 [40.14].

120 Responsive submission, Victoria Police, 24 August 2020, 74 [40.14].

121 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1097 [4763].

122 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1097 [4763]; see Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 9.

123 Responsive submission, Victoria Police, 24 August 2020, 12 [2.19], 41 [21.2], 63 [33.2]. Victoria Police also submitted that the current framework has ‘strict policies and procedures in place concerning the use of lawyers and other individuals with legal obligations of confidentiality or privilege as human sources’: Responsive submission, Victoria Police, 24 August 2020, 41 [22.1].

124 Responsive submission, Victoria Police, 24 August 2020, 12 [2.21], 156 [77.4]; Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 26 [55], 40 [81]; Responsive submission, Victoria Police (specified former and current officers), 8 September 2020, 1 [1.5].

125 Responsive submission, Victoria Police, 24 August 2020, 12 [2.21].

126 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 21 [45]; Transcript of Officer ‘Sandy White’, 2 August 2019, 3846; Transcript of Officer ‘Sandy White’, 31 July 2019, 3598; Transcript of Officer ‘Peter Smith’, 10 September 2019, 6030; Transcript of Officer ‘Black’, 23 October 2019, 8137.

127 Responsive submission, Victoria Police, 24 August 2020, 11–13 [2.17]–[2.32]. See also Transcript of Officer ‘Sandy White’, 2 September 2019, 5361.

128 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 25 [4.3]; Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 29–31 [8.3]–[8.6].

129 Responsive submission, Victoria Police, 24 August 2020, 12 [2.25].

130 Some of this ignorance appears to persist in the submissions made by some former officers to the Commission: see, eg, Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 36 [73]–[74].

131 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1097 [4764].

132 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1097 [4764].

133 Responsive submission, Victoria Police, 24 August 2020, 47–9 [27.1].

134 Responsive submission, Victoria Police, 24 August 2020, 47–9 [27.1].

135 Exhibit RC0284 SML3838, 22 May 2006, 32; Exhibit RC0284 SML3838, 28 May 2007, 112; Exhibit RC0284 SML3838, 20 July 2007, 118; Exhibit RC0284 SML3838, 4 September 2007, 123; Exhibit RC0284 SML3838, 7 November 2007, 126–7.

136 See, eg, Responsive submission, Victoria Police (specific former and current officers), 17 August 2020, 302–3 [52.155]; Exhibit RC0464b Statement of James (Jim) O’Brien, 14 June 2019, 25 [125], 26 [126], [128], 27 [130]–[131], [135]–[136], 28 [141].

137 Responsive submission, Victoria Police (specific former and current officers), 17 August 2020, 45–6 [99]–[101]; Exhibit RC0372 ‘Sandy White’ diary, 19 December 2005; Exhibit RC0381 Mr ‘Sandy White’ diary, 14 February 2006.

138 Responsive submission, Victoria Police (specific former and current officers), 17 August 2020, 268 [50.62]–[50.64].

139 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 36, 6 [18]; Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 39, 4–5 [5.13]; Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 17 [5].

140 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 39, 7 [21].

141 This was a risk Ms Gobbo raised herself and discussed with her handlers in their first meeting in September 2005: Exhibit RC0281 ICR3838 (001), 16 September 2005, 1.

142 See, eg, Exhibit RC0267b Transcript of meeting between Nicola Gobbo, ‘Sandy White’ and ‘Peter Smith’, 16.

143 In Mr Simon Overland’s case, he gave evidence that he immediately identified that Ms Gobbo’s registration may have the potential for miscarriages of justice: Transcript of Mr Simon Overland, 23 January 2020, 12294–5.

144 Exhibit RC0285b Risk assessment relating to Ms Nicola Gobbo, 15 November 2005, 7.

145 Exhibit RC0285b Risk assessment relating to Ms Nicola Gobbo, 15 November 2005, 7.

146 Responsive submission, Victoria Police, 24 August 2020, 23 [7.9].

147 Responsive submission, Victoria Police, 24 August 2020, 23 [7.10].

148 Exhibit RC0591 Officer ‘Black’ diary, 23 November 2005.

149 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1098 [4769].

150 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1099 [4769].

151 Responsive submission, Victoria Police, 24 August 2020, 12 [2.22]–[2.23].

152 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 38–9 [83], 43 [91].

153 Responsive submission, Victoria Police, 24 August 2020, 142 [72.4]; Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 39 [81]; Transcript of Officer ‘Black’, 23 October 2019, 8114.

154 Responsive submission, Victoria Police, 24 August 2020, 142 [72.6].

155 Responsive submission, Victoria Police, 24 August 2020, 142–3 [72.6]–[72.11].

156 sponsive submission, Victoria Police, 24 August 2020, 143 [72.11].

157 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 22 [47].

158 Exhibit RC0485d, Statement of Officer ‘Peter Smith’, undated, 1; Transcript of Officer ‘Sandy White’, 31 July 2019, 3613–4; Statement of Officer `Sandy White’, undated, 59 [254]; Transcript of Officer `Black’, 23 October 2019, 8136–7.

159 Responsive submission, Victoria Police, 24 August 2020, 164 [78.50]–[78.51].

160 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 12 [6], 13 [9].

161 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 21 [46].

162 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 42 [84].

163 Transcript of Mr John (Jack) Blayney, 3 December 2019, 10233, 10236–38.

164 Transcript of Mr Simon Overland, 17 December 2019, 11531-32; Transcript of Mr Simon Overland, 17 December 2019, 11531–2; Exhibit RC0591 Officer ‘Black’ diary, 17 April 2007, 177;Exhibit RC0620 Mr Robert Hardie diary, 17 April 2007, 83-4.

165 Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 30 [11.29]; Exhibit RC1067b Statement of Mr Findlay (Fin) McRae, 13 November 2019, [1.15], [4.13]; Transcript of Simon Overland, 23 January 2020, 12244–5.

166 Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 29 [11.29].

167 Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 30 [11.30].

168 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1093 [4755.3]. See Exhibit RC0492b Transcript of meeting between Ms Gobbo, Officer ‘Peter Smith’ and Officer ‘Sandy White’, 2006, 1–3; Exhibit RC0764b Transcript of conversation between Ms Nicola Gobbo, Officer ‘Jones’ and Officer ‘Bourne’, 3 July 2007, 1–4.

169 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1095 [4755.4]; Exhibit RC0626b Transcript of conversation between Ms Nicola Gobbo, Officer ‘Sandy White’, Officer ‘Peter Smith’ and Officer ‘Black’, 28 October 2005; see Exhibit RC0281 ICR3838 (100), 8 August 2006, 1219; Exhibit RC0281 ICR3838 (100), 4 August 2006, 1215.

170 Responsive submission, Victoria Police, 24 August 2020, 22 [7.4].

171 Responsive submission, Victoria Police, 24 August 2020, 22 [7.4].

172 Responsive submission, Victoria Police, 24 August 2020, 21 [6.2].

173 Responsive submission, Victoria Police, 24 August 2020, 21 [6.2].

174 Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 28 [11.15], [11.17].

175 Transcript of Officer ‘Sandy White’, 2 September 2019, 5356.

176 Exhibit RC0915b Statement of Mr Simon Overland, 2 [12]; Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 33 [63].

177 Exhibit RC0276 Review and Develop Best Practice Human Source Management Policy 2004, 16 April 2004, 18.

178 See, eg, Exhibit RC0497d Transcript of meeting between Nicola Gobbo, Officer ‘Sandy White’ and Officer ‘Green’ et al, 2006, 1–4; Exhibit RC0282 Transcript of conversation between Ms Gobbo, Officer ‘Anderson’ and Officer ‘Fox’, 5 June 2007, 274–6; Exhibit RC0282 Transcript of conversation between Ms Nicola Gobbo, Officer ‘Anderson’ and Officer ‘Peter Smith’, 12 July 2006, 339; Exhibit RC0253b Summary of meeting between Ms Nicola Gobbo, Mr Philip Swindells and Mr Lindsay Attrill, 24 July 2006, 3–5.

179 Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 30 [11.30].

180 Exhibit RC0685b File note of Ms Louise Jarrett, VGSO, 13 September 2011, 1–3.

181 Responsive submission, Victoria Police, 24 August 2020, 21 [6.4]–[6.5].

182 Responsive submission, Victoria Police, 24 August 2020, 21 [6.4], 25 [10.4].

183 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 540 [2142].

184 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 540 [2140]–[2141].

185 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 42 [88].

186 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 42 [88].

187 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 41 [87(d)].

188 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 41 [87(d)].

189 Responsive submission, Victoria Police, 24 August 2020, 50 [28.1].

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

191 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1097–8 [4765]–[4766].

192 Responsive submission, Victoria Police, 24 August 2020, 12 [2.25].

193 Transcript of Mr Simon Overland, 23 January 2020, 12294–5.

194 Transcript of Mr Simon Overland, 16 December 2019, 11315.

195 Transcript of Mr Simon Overland, 16 December 2019, 11431.

196 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting Submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1089 [4740].

197 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 57.

198 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 58.

199 Responsive submission, Victoria Police, 24 August 2020, 12 [2.25].

200 Responsive submission, Victoria Police (specified former and current officers), 8 September 2020, 2 [1.5(h)]; Exhibit RC1933a Statement of Assistant Commissioner Kevin Casey, 15 August 2020, 16 [109]–[115].

201 Responsive submission, Victoria Police, 24 August 2020, 53 [30.15].

202 Exhibit RC0275b Statement of Officer ‘Sandy White’, undated, 58 [250]; Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 21 [45]; Transcript of Officer ‘Peter Smith’, 10 September 2019, 6030; Transcript of Officer ‘Black’, 23 October 2019, 8137.

203 Responsive submission, Victoria Police, 24 August 2020, 131 [69.10], 142 [72.6].

204 Exhibit RC0275b Statement of Officer ‘Sandy White’, undated, 29 [122]; Responsive submission, Victoria Police, 24 August 2020, 142 [72.6]–[72.7].

205 Transcript of Mr Terry Purton, 14 May 2019, 1694.

206 Transcript of Mr Terry Purton, 14 May 2019, 1755–56.

207 See Responsive submission, Victoria Police, 24 August 2020, 13 [2.30].

208 Exhibit RC0281 ICR 3838 (028), 21 April 2006, 258; Exhibit RC0486 Officer ‘Peter Smith’ diary, 21 April 2006, 194–5; Exhibit RC0281 ICR 3838 (032), 19 May 2006, 303; Transcript of Officer ‘Peter Smith’, 11 September 2019, 6071; Transcript of Assistant Commissioner Thomas (Luke) Cornelius, 24 January 2020, 12358–9.

209 Exhibit RC0281 ICR 3838 (083), 15 June 2007, 901.

210 Exhibit RC0275b Statement of Officer ‘Sandy White’, undated, 58 [250]; Transcript of Officer ‘Peter Smith’, 10 September 2019, 6030; Transcript of Officer ‘Black’, 23 October 2019, 8137.

211 Responsive submission, Victoria Police, 24 August 2020, 156 [77.2].

212 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1098 [4767].

213 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1098 [4767].

214 Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 80, referring to Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 5, 15, 37, 39.

215 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 46–7 [95]–[98]; Responsive submission, Victoria Police, 24 August 2020, 22 [7.3].

216 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 43–4 [93]–[94]; Responsive submission, Victoria Police, 24 August 2020, 22 [7.4].

217 Responsive submission, Mr Simon Overland, 18 August 2020, 22–3 [62]–[66], 25 [69], 32 [92], 36 [102(c)], 52 [147(d)], 55 [153(i)], 58 [163(e)]; Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 268 [50.62], 269 [51.7], 270–71 [57.10]–[57.12], 395 [61.6], 400 [63.3].

218 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 88–9 [404]–[406]. While the Purana Taskforce drew on the resources of the Crime Department, it did not formally report to it.

219 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 303–4 [1354].

220 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 92 [423]; Responsive submission, Victoria Police, 24 August 2020, 23–4 [7.15]–[7.17].

221 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 4–8 [40]–[42]. Prior to 2006, the HSMU was called the ‘Informer Management Unit’: Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, 45 [5.9].

222 The Commission notes that Mr Whitmore was not required to attend and give evidence before the Commission and did not provide a written statement due to his poor physical health, which had significantly impacted on his recollection of the events relevant to the inquiry: Exhibit RC1960 Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 10 February 2020.

223 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 306 [1358].

224 Transcript of Mr Dannye Moloney, 20 February 2020, 14562.

225 Transcript of Mr Dannye Moloney, 20 February 2020, 14561, 14563.

226 Responsive submission, Victoria Police (annexure: specified individual officers), 24 August 2020, 110 [56.10].

227 Responsive submission, Victoria Police (annexure: specified individual officers), 24 August 2020, 110 [56.10].

228 Responsive submission, Victoria Police, 24 August 2020, 166 [78.58]; Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 46 [95].

229 Responsive submission, Victoria Police, 24 August 2020, 166 [78.58].

230 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 12 [18(d)].

231 Exhibit RC0577c Statement of Mr Anthony (Tony) Biggin, 25 July 2019, 9–11 [50]–[58].

232 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 55 [127]. As discussed in Chapter 8, there is some uncertainty about the purpose of Mr Biggin’s audit. Officer ‘Sandy White’ submitted that the audit was to provide independent oversight of Ms Gobbo’s management (Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 53 [121]), while Victoria Police and several former and current officers submitted that Mr Biggin was asked by Mr Moloney to conduct a high-level audit, rather than a more extensive analysis of Ms Gobbo’s human source file, and that this was consistent with Victoria Police audit methodology at the time: Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 228–9 [44.12]–[44.14]; Responsive submission, Victoria Police, 24 August 2020, 141 [56.24].

233 Exhibit RC0577c Statement of Mr Anthony (Tony) Biggin, 25 July 2019, 9–10 [50]–[55]; Responsive submission, Victoria Police (specified former and current officers), 8 September 2020, [1.5(g)].

234 Transcript of Mr Mark Porter, 20 September 2019, 6602; Exhibit RC0577c Statement of Mr Anthony (Tony) Biggin, 25 July 2019 7 [37].

235 Exhibit RC0512b Statement of Superintendent Mark Porter, 15 August 2019, 5 [27].

236 Transcript of Mr Terry Purton, 14 May 2019, 1697.

237 Exhibit RC1217b Statement of Inspector Andrew Glow, 21 November 2019, 3–4 [17]–[27]; Responsive submission, Victoria Police (specified former and current officers), 8 September 2020, [1.5(g)].

238 Exhibit RC0915b Statement of Mr Simon Overland, 19 September 2019, 23 [124], 25 [131], [133]; Exhibit RC0398 Officer ‘Sandy White’ diary, 17 May 2006, 137; Exhibit RC0308 Officer ‘Sandy White’ diary, 6 August 2007, 1.

239 Transcript of Mr Anthony (Tony) Biggin, 10 October 2019, 7735.

240 Exhibit RC0577c Statement of Mr Anthony (Tony) Biggin, 25 July 2019, 4–6 [21]–[34].

241 Transcript of Mr Anthony (Tony) Biggin, 9 October 2019, 7474.

242 Transcript of Mr Anthony (Tony) Biggin, 9 October 2019, 7475.

243 Transcript of Mr Anthony (Tony) Biggin, 9 October 2019, 7575.

244 Exhibit RC0577b Statement of Mr Anthony (Tony) Biggin, 25 July 2019, 13 [63]–[67].

245 Transcript of Mr Anthony (Tony) Biggin, 9 October 2019, 7568–69.

246 Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 208 [39.6].

247 Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 213 [41.4].

248 Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 240–1 [46.8]–[46.11].

249 Exhibit RC1217 Statement of Inspector Andrew Glow, 21 November 2019, 3 [18].

250 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 6 [5(j)], 10 [18(d)], 51–2 [114].

251 See Exhibit RC1306b Statement of Mr Jeffrey (Jeff) Pope, 21 January 2020, 14–27 [60]–[88]; Exhibit RC0795b Statement of Superintendent John O’Connor, 11 October 2019, 25–26 [142]–[144].

252 Known as the duty to investigate, which at the relevant time was an obligation reflected in Victoria Police policy: see Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 33, [4.1].

253 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020) 9.

254 As discussed in Chapter 14, Operation Gloucester, a review by the Independent Broad-based Anti-corruption Commission, examined Victoria Police’s witness statement-taking practices in relation to police conduct in Victoria Police’s investigation into the murder of two Victoria Police officers in 1998 (the Lorimer Investigation) and has made recommendations to improve Victoria Police’s statement-taking practices: Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020) 78.

255 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020), 10–11.

256 Roberts v The Queen [2020] VSCA 277, [147]–[157], [259], [284] (T Forrest, Osborn JJA and Taylor AJA).

257 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020), 11.

258 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 33, [4.5.3].

259 Responsive submission, Victoria Police, 24 August 2020, 71 [38.10]; Exhibit RC1933a Statement of Assistant Commissioner Kevin Casey, 15 August 2020, 12 [76].

260 Responsive submission, Victoria Police, 24 August 2020, 71 [38.10]; Exhibit RC1933a Statement of Assistant Commissioner Kevin Casey, 15 August 2020, 12 [76].

261 Responsive submission, Victoria Police, 24 August 2020, 71 [38.10]; Exhibit RC1933a Statement of Assistant Commissioner Kevin Casey, 15 August 2020, 12 [76].

262 Responsive submission, Victoria Police, 24 August 2020, 71 [38.10]; Exhibit RC1933a Statement of Assistant Commissioner Kevin Casey, 15 August 2020, 12 [76].

263 Responsive submission, Victoria Police, 24 August 2020, 71 [38.11]; Exhibit RC1933a Statement of Assistant Commissioner Kevin Casey, 15 August 2020, 12 [77].

264 Exhibit RC0276 Review &Develop Best Practice Human Source Management Policy 2004, 16 April 2004, 18.

265 Exhibit RC0276 Review &Develop Best Practice Human Source Management Policy 2004, 16 April 2004, 17.

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

267 Exhibit RC1933a Statement of Assistant Commissioner Kevin Casey, 15 August 2020, 4–5 [17], 9 [45], 10 [58], 11 [66]–[67].

268 Exhibit RC1933a Statement of Assistant Commissioner Kevin Casey, 15 August 2020, 10 [59], 11 [67], [69], [70]; Responsive submission, Victoria Police, 24 August 2020, 69 [37.1], 73 [39.6].

269 Responsive submission, Victoria Police, 24 August 2020, 68 [36.5].

270 Exhibit 1933a Statement of Assistant Commissioner Kevin Casey, 15 August 2020, 4–5 [17], 9 [45], 10 [58], 11 [66]; Responsive submission, Victoria Police, 24 August 2020, 68 [36.4], [38.10]–[38.11].

271 Responsive submission, Victoria Police, 24 August 2020, [36.1]–[36.2]; in relation to PII policies and processes: Responsive submission, Victoria Police, 24 August 2020, 72–4 [40.1]–[40.19]; in relation to disclosure policies and processes: Responsive submission, Victoria Police, 24 August 2020, 76–7 [41.1]–[41.4].

272 Responsive submission, Victoria Police (specified former and current officers), 8 September 2020, 2 [1.5(k)].

273 Exhibit RC1933a Statement of Assistant Commissioner Kevin Casey, 15 August 2020, 11 [67]; Responsive submission, Victoria Police, 24 August 2020, 75 [40.21].

274 Responsive submission, Victoria Police, 24 August 2020, 76 [40.24].

275 Responsive submission, Victoria Police, 24 August 2020, 76 [40.24].

276 Responsive submission, Victoria Police, 24 August 2020, 76 [40.24].

277 Responsive submission, Victoria Police, 24 August 2020, 73 [40.6].

278 Responsive submission, Victoria Police, 24 August 2020, 74 [40.15].

279  Responsive submission, Victoria Police, 24 August 2020, 72 [39.1]–[39.2].

280 Exhibit RC0915b Statement of Mr Simon Overland, 19 September 2019, 28 [146]; Exhibit RC0898b Statement of Assistant Commissioner Thomas (Luke) Cornelius, 20 September 2019, 14 [89], 26 [159], [160], [162].

281 Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson, 22 March 2019, Annexure 75.

282 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 24 [48], 127–8 [278].

283 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1102 [4782].

284 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 95 [407]; Responsive submission, Victoria Police, 24 August 2020, 51 [30.1].

285 Responsive submission, Victoria Police, 24 August 2020, 25 [10.2].

286 Responsive submission, Victoria Police, 24 August 2020, 13 [2.30].

287 Responsive submission, Victoria Police, 24 August 2020, 54 [30.15].

288 Responsive submission, Victoria Police, 24 August 2020, 13 [2.31].

289 Responsive submission, Victoria Police, 24 August 2020, 25 [10.3].

290 Responsive submission, Victoria Police, 24 August 2020, 25 [10.4].

291 Responsive submission, Victoria Police, 24 August 2020, 26 [10.5].

292 Exhibit RC0267b Transcript between Ms Nicola Gobbo, Officers ‘Peter Smith’ and ‘Sandy White’, 16 September 2005, 7.

293 Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 26 [11.2]. The evidence before the Kellam Inquiry was that at least 150 Victoria Police officers were aware of Ms Gobbo’s identity as a human source by 2009: Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) 84 n 176.

294 Exhibit RC0518b Covert Support Division briefing note with audit trail dissemination list, 31 December 2008.

295 Exhibit RC0577c Statement of Mr Anthony (Tony) Biggin, 25 July 2019, 29 [171]; Transcript of Officer ‘Sandy White’, 19 August 2019, 4799; Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 128 [23.199], 140 [27.56].

296 See the findings and conclusions in Chapter 8 regarding Mr Thomas’ case.

297 Responsive submission, Victoria Police, 24 August 2020, 26 [10.9].

298 Responsive submission, Victoria Police, 24 August 2020, 355 [161.3].

299 At 30 October 2020, the Commission understands there are criminal appeal proceedings on foot in relation to nine persons.

300 Exhibit RC1714 Letter from the Commissioner of the Royal Commission to Chief Commissioner Graham Ashton, 16 December 2019;Letter from the Commission to Victoria Police, 5 July 2019.

301 Exhibit RC1715 Letter from solicitors representing Victoria Police to Solicitors Assisting the Commission, 6 November 2019.

302 Exhibit RC1806b Victoria Police, ‘List of Persons with Disclosure Materials’, 6 December 2019.

303 This number was calculated by comparing Exhibit RC1806b Victoria Police, ‘List of Persons with Disclosure Materials’, 6 December 2019 and Exhibit RC1714 Letter from the Commissioner to Chief Commissioner Graham Ashton, 16 December 2019.

304 Exhibit RC1714 Letter from Commissioner to Chief Commissioner Graham Ashton 16 December 2019.

305 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1110 [4804].

306 Responsive submission, Victoria Police, 24 August 2020, 252 [159.2(b)], [161].

307 Responsive submission, Victoria Police, 24 August 2020, 362 [165.2].

308 Responsive submission, Victoria Police, 24 August 2020, 355 [161.1].

309 Responsive submission, Victoria Police, 24 August 2020, 355 [161.2].

310 Responsive submission, Victoria Police, 24 August 2020, 355 [161.2].

311 Responsive submission, Victoria Police, 24 August 2020, 356–7 [163.1]–[163.7].

312 Responsive submission, Victoria Police, 24 August 2020, 363 [165.9].

313 Email from solicitors for Victoria Police to Solicitors Assisting the Commission, 6 November 2020.

314 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1110 [4803].

315 Email from solicitors for Victoria Police to Solicitors Assisting the Commission, 6 November 2020.

316 Cvetanovski v The Queen [2020] VSCA 272, [7] (Maxwell P, Beach and Weinberg JJ).

317 Cvetanovski v The Queen [2020] VSCA 272, [8] (Maxwell P, Beach and Weinberg JJ).

318 Transcript of Inspector Dale Flynn, 1 October 2019, 6923–8.

319 Exhibit RC1955, Letter from solicitors for Victoria Police to Solicitors Assisting the Commission, 17 April 2020; Exhibit RC1956 Corrections Victoria table of payments made to Mr ‘Cooper’, multiple dates.

320 Letter from Solicitors Assisting the Commission to the Office of Public Prosecutions, 5 November 2020.

321 Transcript of Officer ‘Sandy White’, 2 September 2019, 5356.

322 Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 45–6 [93]–[96], 46 [99].

323 Transcript of Officer ‘Sandy White’, 1 August 2019, 3766; Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 54–5 [117]–[120].

234 Transcript of Officer ‘Sandy White’, 19 August 2019, 4799; Responsive submission, Six former officers of the Source Development Unit, 7 August 2020, 124 [270], 130 [285].

325 Transcript of Officer ‘Black’, 23 October 2019, 8161; Transcript of Officer ‘Sandy White’, 19 August 2019, 4799.

326 Exhibit RC0512b Statement of Superintendent Mark Porter, 15 August 2019, 5 [27], 6 [30], 7 [33], 7 [37].

327 Exhibit RC0512b Statement of Superintendent Mark Porter, 15 August 2019, 5 [25].

328 Exhibit RC0512b Statement of Superintendent Mark Porter, 15 August 2019, 5 [26].

329 Transcript of Mr Anthony (Tony) Biggin, 9 October 2019, 7475; Transcript of Mr Dannye Moloney, 20 February 2020, 14592.

330 Exhibit RC0577c Statement of Mr Anthony (Tony) Biggin, 25 July 2019, 8 [43].

331 Responsive submission, Victoria Police (annexure: specified individual officers), 24 August 2020, 138 [56.10]; Transcript of Anthony (Tony) Biggin, 10 October 2019, 7735–6.

332 See Transcript of Mr Paul Rowe, 28 June 2019, 3264; Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 29 [11.26]–[11.27].

333 See Responsive submission, Victoria Police (annexure: specified individual officers), 24 August 2020, [28.106]; Transcript of Mr James (Jim) O’Brien, 4 September 2019, 5546, 5675; Transcript of Detective Sergeant Paul Rowe, 13 November 2019, 9199; Transcript of Commander Stuart Bateson, 28 November 2019, 10104.

334 Transcript of Mr James (Jim) O’Brien 4 September 2019, 5515, 5530, 5534; Transcript of Detective Sergeant Paul Rowe, 1 July 2019, 3276; Responsive submission, Victoria Police (specified former and current officers), 17 August 2020, 268 [50.62], 269–70 [51.7], 355–56 [57.10]–[57.12], 395 [61.6], 400 [63.3].

335 Transcript of Mr Simon Overland, 17 December 2019, 11435–6.

336 Transcript of Mr Simon Overland, 17 December 2019, 11454–5.

337 Transcript of Mr Simon Overland, 17 December 2019, 1143.

338 Transcript of Assistant Commissioner Thomas (Luke) Cornelius, 12 December 2019, 11121.

339 Exhibit RC1325b Statement of Mr Dannye Moloney, 28 November 2019, 3 [12]–[13]; Transcript of Mr Dannye Moloney, 20 February 2020, 14640.

340 Responsive submission, Victoria Police (annexure: specified individual officers), 24 August 2020, 138 [56.10].

341 Transcript of Mr Dannye Moloney, 20 February 2020, 14562.

342 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1110 [4778].

343 Chris Winneke, Andrew Woods and Megan Tittensor, ‘Counsel Assisting submissions with respect to Terms of Reference 1 and 2’, Royal Commission into the Management of Police Informants (26 June 2020) vol 2, 1047–53 [4513]–[4778].

344 Responsive submission, Victoria Police, 24 August 2020, 20 [5.13].

345 Responsive submission, Victoria Police, 24 August 2020, 20 [5.13]–[5.14].

346 Responsive submission, Victoria Police, 24 August 2020, 20 [5.15]–[5.16].

347 Responsive submission, Victoria Police, 24 August 2020, 20 [5.13].

348 Responsive submission, Victoria Police, 24 August 2020, 22 [7.3]–[7.5].

349 Exhibit RC1039b Briars Taskforce Update, 21 September 2009; Exhibit RC0795b Statement of Superintendent John O’Connor, 11 October 2019, 2–3 [17]–[20]; Exhibit RC1231b Statement of Detective Superintendent Peter Lardner, 27 November 2019, 3 [14]–[16]; Exhibit RC1085b Letter of Advice from Victorian Government Solicitor’s Office to Superintendent Lardner, 21 May 2010; Exhibit RC0305 Officer ‘Sandy White’ diary, 24 May 2010, 1120.

350 Responsive submission, Victoria Police, 24 August 2020, 18 [5.2].

351 Responsive submission, Victoria Police, 24 August 2020, 18–19 [5.1]–[5.9].

352 Responsive submission, Victoria Police, 24 August 2020, 18 [5.1].

353 Responsive submission, Victoria Police, 24 August 2020, 18–19 [5.4].

354 Responsive submission, Victoria Police, 24 August 2020, 19 [5.5].

355 Responsive submission, Victoria Police, 24 August 2020, 19 [5.5].

356 Inquiries Act 2014 (Vic) s 123(1).

357 John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016), 37 [212], [217].

358 The history of these legal proceedings is explained in Chapter 1.

359 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020), 19.

360 Responsive submission, Victoria Police, 20 September 2020, 20 [1.5]–[1.6]; Responsive submission, Victoria Police, 24 August 2020, 363 [165.10]

Reviewed 07 December 2020

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