Volume II

Introduction

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

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

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

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

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

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

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

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

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

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

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

Counsel Assisting observed in their submissions to the Commission:

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

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

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

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

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

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

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

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

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

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

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

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

The range of potentially affected cases

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

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

The ways in which cases may have been affected

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

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

Categories of conduct: Ms Gobbo

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

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

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

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

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

Table 7.1: Categories of conduct—Ms Gobbo

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

Categories of conduct: Victoria Police

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

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

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

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

Table 7.2: Categories of conduct—Victoria Police

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

Underlying principles

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

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

Identifying potentially affected cases

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

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

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

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

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

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

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

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

Case studies of Counsel Assisting

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

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

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

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

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

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

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

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

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

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

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

Counsel Assisting submitted:

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

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

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

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

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

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

Review of the potentially affected cases

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

Counsel Assisting submissions about these cases comprise two volumes:

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

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

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

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

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

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

1993 to 1999: Early patterns of conduct

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

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

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

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

Mr Brian Wilson

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

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

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

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

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

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

Ms Gobbo’s ongoing contact with state and federal police

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

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

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

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

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

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

Emerging tendencies

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

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

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

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

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

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

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

MS GOBBO: Well they were obviously compromised.⁶⁵

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From stalemate to cooperation

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

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

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

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

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

Finalising Mr McGrath’s statements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Problems at the outset

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

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

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

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

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

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

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

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

The impacts of Ms Gobbo’s conflicting interests

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

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

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

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

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

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

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

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

The Source Development Unit

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

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

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

Ms Gobbo’s third registration as a human source

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

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

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

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

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

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

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

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

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

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

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

Police recognition of Ms Gobbo’s conflict of interest

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ms Gobbo again acts as an instrument for the Purana Taskforce

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

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

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

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

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

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

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

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

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

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

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

Mr Orman’s conviction and subsequent acquittal

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

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

In a statement to the Commission, Mr Richter explained:

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

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

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

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

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

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

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

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

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

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

Ms Gobbo’s role in relation to Mr Cooper

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

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

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

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

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

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

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

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

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

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

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

Mr Cooper’s arrest and cooperation

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

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

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

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

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

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

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

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

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

Ms Gobbo’s perspective

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

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

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

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

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

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

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

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

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

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

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

Mr Cooper’s perspective

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

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

…

I am concentrating here on the Posse charges …

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

…

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

MR COOPER: One hundred per cent.

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

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

…

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

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

…

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

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

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

MR COOPER: No.

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

MR COOPER: No.

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

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

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

MR COOPER: No.³⁸⁰

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

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

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

MR COOPER: Absolutely, yes.

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

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

…

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

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

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

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

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

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

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

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

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

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

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

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

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

MR SMITH: Does he pay?

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

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

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

MS GOBBO: Yeah.

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

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

MR GREEN: How’s that going to work?

MS GOBBO: What do you mean?

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

MS GOBBO: What do you mean?

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

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

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

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

MS GOBBO: Mm.

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

MS GOBBO: Yes. ³⁸⁹

…

MR WHITE: How does that work?

MS GOBBO: If?

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

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

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

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

MR WHITE: No, we’re not but …

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

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

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

MR WHITE: Ethically …

MR GREEN: Or practically.

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

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

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

MS GOBBO: You don’t care.

MR WHITE: Well …

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

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

…

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

MS GOBBO: Yeah.

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

MS GOBBO: Mm’hm.

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

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

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

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

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

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

MR WHITE: Forget it. I’m just—…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ms Gobbo’s representation of Mr Rob Karam

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

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

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

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

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

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

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

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

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

Ms Gobbo’s representation of Mr Pasquale Barbaro

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

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

Other potentially affected people

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

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

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

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

The wider implications of Ms Gobbo’s conduct

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The effect of Ms Gobbo’s conduct on Victoria Police

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

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

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

Conclusions and recommendations

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

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

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

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

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

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

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

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

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

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

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

Endnotes

Introduction

The conduct of Ms Nicola Gobbo was not the only cause of the calamitous events that led to the establishment of this Commission. They could not have occurred without the complicity of Victoria Police officers, who authorised and facilitated her use as a human source to inform on her own clients.

It is a grave thing when a lawyer loses their ethical bearings and betrays their clients and the administration of justice. It is even more shocking when police officers who are sworn to uphold and enforce the law enable conduct that the Court of Appeal of the Supreme Court of Victoria recently considered ‘might prove to be one of the greatest scandals of our time in relation to the workings of the criminal justice system’.¹

Term of reference 2 required the Commission to inquire into and report on the conduct of current and former Victoria Police officers in their disclosures about and recruitment, handling and management of Ms Gobbo as a human source.

In Chapter 6, the Commission sets out Victoria Police’s interactions with Ms Gobbo between the early 1990s, when officers charged her with drug offences and went on to register her as a human source for the first time; and 2018, when the organisation’s use of her as a human source for the third time was revealed to the Victorian public.

Chapter 7 discusses the potential effects of Ms Gobbo’s conduct on criminal convictions and findings of guilt, concluding that as many as 1,011 people may have been affected by her improper and duplicitous actions.

In accordance with term of reference 2, this chapter examines the conduct of individual Victoria Police officers involved in these events. It should be read in conjunction with Chapters 6 and 7, and with Chapter 9, which takes a broader view of police conduct and the organisational conditions, structures, cultures and processes that contributed to and facilitated the actions of individual officers.

The chapter first outlines Ms Gobbo’s initial involvement with Victoria Police, including her first and second registrations as a human source. It goes on to detail Ms Gobbo’s involvement with the Purana Taskforce, her third registration by the Source Development Unit (SDU), her extensive informing between 2005 and 2009, and some case studies that exemplify the myriad ways in which police conduct fell short of expected ethical and professional standards. It describes Victoria Police’s growing appreciation over time of the risks involved in using Ms Gobbo as a human source, and the series of missed opportunities to properly intervene and prevent further damage to the criminal justice system.

Finally, the chapter sets out the sequence of events that led ultimately to the revelation of Victoria Police’s use of Ms Gobbo as a human source, including its attempts to transition her to a witness in two high-profile police operations; settlement of her civil litigation against Victoria Police; delays in obtaining and responding to legal advice on the possible consequences of its actions; and unsuccessful attempts to prevent the events from coming to light.

Many of the facts relevant to Ms Gobbo’s use as a human source are contested by Victoria Police, numerous current and former officers, and Ms Gobbo herself. Given the volume of contested material, the Commission’s time limitations and the size of this final report, it has not been possible, nor is it necessary or desirable, for the Commission to resolve every contested matter. This chapter draws on Counsel Assisting submissions, responsive submissions and other evidence gathered during the inquiry in making its findings and conclusions. In line with the Commission’s obligations under the Inquiries Act 2014 (Vic), where it has made an adverse finding against any person, it has fairly considered and set out the person’s response. All Counsel Assisting and responsive submissions were also published on the Commission’s website.²

It is difficult to say with absolute certainty who bears ultimate responsibility, and in what measure, for Victoria Police’s mismanagement of Ms Gobbo as a human source and the resulting damage to Victoria’s criminal justice system. This is due to a combination of factors, including the passage of time since the events occurred; the large number of police officers involved; the prolific nature of Ms Gobbo’s informing; the disaggregation of responsibility across different areas of Victoria Police and the organisation’s prevailing ‘need to know’ culture; and, as noted above, because so many officers and Ms Gobbo contest the facts around what happened and why.

The evidence does, however, identify many instances when Victoria Police officers failed to meet the Commission’s expectations regarding the proper discharge of their duties and obligations as police officers. Those expectations were that all officers with knowledge of Ms Gobbo’s management and use as a human source, especially those with direct, supervisory or leadership responsibilities, had an obligation to take all steps necessary to ensure that police conduct was not improper and did not interfere with accused persons’ right to a fair trial—and where there was a possibility of that occurring, to ensure that either appropriate disclosure was made, or that public interest immunity (PII) claims were properly put to the courts.

It is no answer to criticism for police officers, particularly those in senior, supervisory roles, to say that responsibility lay elsewhere or that matters were outside of their chain of command. Once they knew of the grave risks of the situation and the questionable conduct of both Ms Gobbo and other police officers, they were obliged to either address it, or satisfy themselves that others were appropriately doing so.

The Commission has concluded that the conduct of relevant current and former Victoria Police officers should be referred to the proposed Special Investigator to consider whether there is sufficient evidence to bring criminal charges against them, and/or disciplinary charges in the case of current Victoria Police officers.

Legal and ethical duties of Victoria Police officers

Victoria Police officers have a suite of legal and ethical duties and obligations derived from their oath or affirmation, legislation and the common law. These are outlined in greater detail in Chapter 5 and summarised below.

Before they commence service, every police officer must take an oath or make an affirmation, promising to:

• well and truly serve without favour or affection, malice or ill-will
• keep and preserve the peace
• prevent, to the best of their abilities, all offences
• discharge all of the duties legally imposed on the officer faithfully and according to law.³

The common law also recognises that police have broad duties to prevent and detect crime and to keep the peace.⁴

As noted in Chapters 2, 5 and 14, in criminal proceedings, police are bound by the prosecution’s duty to disclose all relevant information to an accused person, including information that might help the accused person or weaken the prosecution’s case against them. Even if an accused person is convicted, that duty continues to apply. If police do not wish to disclose information on the basis that it is subject to PII, they must apply to the court for an order authorising non-disclosure.⁵

Improper conduct and breaches of duties by police officers may fall under the Victoria Police Act 2013 (Vic) (Victoria Police Act) and the Independent Broad-based Anti-corruption Commission Act 2011 (Vic). Police officers who breach their professional duties may be investigated by Victoria Police or the Independent Broad-based Anti-corruption Commission (IBAC),⁶ and may face internal disciplinary measures or in some cases, criminal prosecution. Since 1 January 2008, Victoria Police and its officers have also been bound by the Charter of Human Rights and Responsibilities Act 2006 (Vic).⁷

The obligations imposed on police reflect the crucial role they perform, the very significant powers they are given to perform it, and the grave consequences that may follow if they abuse those powers or fail to perform their role according to law.

As discussed in Chapter 5, it is not for the Commission to make determinative findings about whether criminal or disciplinary offences have been committed by Victoria Police officers. That is a matter for the courts and other authorities empowered to make such findings. Given the Commission’s terms of reference, it is, however, appropriate and indeed necessary to examine and comment on the potentially improper conduct of Victoria Police and its officers. Indeed, this follows from term of reference 2, which, as set out above, required the Commission to report on relevant conduct of current and former Victoria Police officers.

Further, term of reference 1 required the Commission to report on cases potentially affected by the use of Ms Gobbo as a human source. As noted in Chapter 7, the Commission has focused on cases where convictions or findings of guilt may have been affected. Since the conduct of Victoria Police officers, including any potential breaches of their duties, are capable of undermining a conviction or finding of guilt, it has in many cases been necessary to consider what police officers did or may have done in using Ms Gobbo as a human source, in order to reach a view about whether and how a case may have been affected.

Initial involvement with Ms Gobbo: first and second registrations

Between 1993 and 1999, Ms Gobbo had contact with Victoria Police as a law student and then as a lawyer, the circumstances of which are outlined in Chapters 6 and 7.

As discussed in those chapters, during this period Ms Gobbo was registered as a human source by Victoria Police on two occasions:

• in 1995, in relation to information that she was providing to police about the alleged criminal activities of Mr Brian Wilson⁸
• in 1999, in relation to information that she was providing to police about the alleged criminal activities of her former employer, Solicitor 1 (a pseudonym).⁹

The Commission is not of the view that there was improper conduct on the part of officers involved in these early registrations, particularly given the rudimentary policy framework that Victoria Police had in place for the management of human sources at the time. As discussed in Chapter 7, however, there were some negative patterns of conduct that would continue into the future.

During this period, signs emerged that cast doubt on the wisdom of using Ms Gobbo as a human source. Officers of both Victoria Police and the Australian Federal Police (AFP) told the Commission that they considered Ms Gobbo might not be suitable for this role, despite her enthusiasm.¹⁰ For example:

• In 1996, then Detective Senior Sergeant John (Jack) Blayney, APM cancelled a plan to have Ms Gobbo introduce an undercover operative to her former de facto partner, Mr Wilson (a target of Operation Scorn), as she was a ‘loose cannon’.¹¹
• In 1998, Ms Gobbo suggested she had information for the AFP, but the agents assessed her as ‘untrustworthy’ and seeking to elicit information from them.¹²
• In 1998, a Victoria Police Drug Squad officer thought Ms Gobbo was unsuitable as a human source given her overt desire to provide information, her inappropriate relationships with police officers and the possibility that she may inform on clients.¹³

The SDU had no such reservations in registering Ms Gobbo in 2005, her third registration as a human source. Those Victoria Police officers who worked with her as a human source at this later time claimed they did not know about her informing activities in the 1990s and the Commission has found no evidence to contradict that claim.¹⁴

The gangland wars

Power struggles between Melbourne organised crime groups escalated between 2000 and 2003, resulting in a spate of murders that Victoria Police struggled to solve. These violent conflicts, known as the ‘gangland wars’, were often cited in evidence before the Commission as explaining police motivations in later registering Ms Gobbo as a human source in 2005.

Victoria Police criminal investigation practice at the time was ‘siloed’, with its investigative arm split into three Divisions: Major Drug Investigation Division (MDID); Serious Crime Investigation Division; and Violent Crime Investigation Division.¹⁵ This saw each division approach every murder individually, without drawing connections between the crimes. They had little intelligence about factions or the key members of warring crime groups.¹⁶

With the appointment of Mr Simon Overland, APM as Assistant Commissioner, Crime, in February 2003,¹⁷ Victoria Police adopted a fresh approach. They began to ‘join the dots’ and identify how the murders were connected to factional wars over the lucrative distribution of illegal drugs.¹⁸ The Purana Taskforce was established in May 2003 to take a more holistic, more sophisticated approach.

In June 2003, Mr Jason Moran and Mr Pasquale Barbaro were murdered in broad daylight after an Auskick football clinic in front of young children (Moran/Barbaro murders). This highlighted the brutality of the gangland wars, and intensified government and community pressure for police to stop the violence.¹⁹

The Purana Taskforce received additional resources to support its investigations. The Taskforce hoped to dismantle organised criminal networks by using intelligence to target their weakest members, arrest and charge them, and encourage them to co-operate with police by giving evidence against their criminal associates, including those higher up the chain.²⁰

Reforms to human source management policy and practice

At around the same time, Victoria Police took steps to reform its human source management model, after a series of reviews highlighted endemic corruption in its Drug Squad, including inappropriate management of human sources.²¹

In August 2001, then Chief Commissioner of Victoria Police, Christine Nixon, APM commissioned a comprehensive review of the Drug Squad, overseen by Detective Superintendent Terry Purton. In December 2001, Mr Purton delivered a report titled Review of the Victoria Police Drug Squad (Purton Review).²² One recommendation of the Purton Review was to establish an organisation-wide human source management policy with heightened management, oversight and more stringent record keeping.

A 2008 report by the Office of Police Integrity (OPI) examined events involving a former barrister giving information to Victoria Police officers as part of an investigation called Operation Clarendon, which was established in 2002. The OPI report concluded that Victoria Police had been slow to implement the Purton Review recommendations, noting presciently that Operation Clarendon was an:

… important reminder of the need for police to be ever vigilant when approached by manipulative individuals … purporting… to provide high level assistance for no reward.²³

In 2003, the Chief Commissioner issued a new human source management policy as a consequence of the Purton Review and related events.²⁴

In the same year, under the leadership of Mr Overland, Victoria Police’s Crime Department identified the need to develop best practice in the management of human sources²⁵ and initiated the project entitled, Review and Develop Best Practice Human Source Management Policy.²⁶ Mr Overland, a senior and experienced officer with legal qualifications, sat on the Steering Committee and therefore understood the challenges and issues surrounding the management of human sources, particularly those who were deemed high-risk.²⁷

In his evidence to the Commission, Mr Overland acknowledged that the use of human sources in relation to serious organised crime figures was ‘invariably legally and ethically complex’ and required fine judgements and balancing of competing legal and ethical principles.²⁸ He noted that the ‘type of person who has knowledge relevant to the identification and prosecution of serious crime is invariably ethically, morally and spiritually compromised’.²⁹

The review initiated by Mr Overland resulted in a report containing 20 recommendations, including a recommendation for a six-month trial of a specialised ‘Dedicated Source Unit’ (DSU) to recruit and manage high-risk human sources using highly trained officers.³⁰ Following the trial, the DSU was established permanently and went on to register Ms Gobbo as a human source in 2005.³¹ Its name was later changed to the SDU. In this chapter, the Commission refers to both as the ‘SDU’.

When Ms Gobbo was registered as a human source in 2005, the SDU’s policies were new and untested. There were also issues with the management structure, as both the SDU (responsible for operations) and the Human Source Management Unit (HSMU) (responsible for policy and compliance monitoring, including monitoring of the SDU)reported to the same Superintendent.³² Further, the SDU had no full time Inspector despite its high-risk work.³³ From 1 July 2006, this management structure issue was addressed, but the SDU still had no full time Inspector.³⁴ These structural and resourcing issues and their implications for the conduct of officers who registered and managed Ms Gobbo as a human source are discussed in Chapter 9.

Further involvement with Ms Gobbo: third registration

Before Ms Gobbo was registered as a human source in 2005, she and Victoria Police officers first tested the waters. By then, she was already in frequent contact with officers of the Purana Taskforce.³⁵

Media attention surrounding Ms Gobbo’s successful bail application for Mr Lewis Moran in July 2003 attracted the wrath of his rival, Mr Carl Williams, for whom she had also acted.³⁶ Mr Williams thought her acting for Mr Moran was disloyal, and his offsider, Mr Andrew Veniamin, confronted her and called her a ‘dog’.³⁷

When Ms Gobbo next appeared for Mr Moran in September 2003, then Detective Senior Sergeant Philip Swindells from the Purana Taskforce, knowing about these threats, invited her to contact police if she wanted to discuss her situation.³⁸ He told the Commission that he wanted her to know that she could comfortably speak to the Purana Taskforce and that they could assist and investigate.³⁹

Between 2003 and 2004, Ms Gobbo had numerous discussions with then Detective Sergeant Stuart Bateson of the Purana Taskforce about assisting Victoria Police and about her safety concerns. Mr Bateson told the Commission that, after a hearing in 2004 concerning her client, Mr McGrath (a pseudonym), Ms Gobbo told him that she was concerned for her welfare if it were to become known that she was representing Mr McGrath.⁴⁰ In June 2004, Mr Bateson reminded her that Victoria Police’s ‘door was always open’ if she needed assistance.⁴¹

Ms Gobbo had a stroke in July 2004.⁴² Around this time, Officer Sandy White (a pseudonym), then with the MDID but who later became Ms Gobbo’s SDU controller, thought she may have useful intelligence about organised crime.⁴³ After Ms Gobbo’s stroke, he thought she might be ‘vulnerable to an approach’.⁴⁴ This aligned with the SDU’s strategic, targeted recruitment of human sources.⁴⁵

Victoria Police had several motivations for registering Ms Gobbo as a human source. Mr White said that he thought Ms Gobbo was a potentially valuable human source given her social associations with criminals.⁴⁶ Then Superintendent Anthony (Tony) Biggin recalled Mr Whitesaying this was an attempt to gather the information she was supplying to multiple police into a single location.⁴⁷

As then Deputy Commissioner Graham Ashton, AM, APM said in the course of giving evidence to the Kellam inquiry, the Victoria Police executive group was under ‘considerable pressure’ at the time to stop the gangland wars, murders and drug trade fuelling them. He explained:

… this human source comes on board that could potentially solve a bunch of ... murders or prevent others … and this glittering prize … sometimes diverts you from the necessary sense of steps.⁴⁸

The actions of Source Development Unit officers

At the time of Ms Gobbo’s registration as a human source in September 2005, the SDU was a new group of enthusiastic, well regarded officers keen to prove that Victoria Police’s investment in them was worth it.⁴⁹ Several officers had travelled overseas to research best practice in human source management.⁵⁰

Ms Gobbo, a lawyer with a penchant for informing, was personally and professionally close to the organised crime figures she represented. She had grown disillusioned with their behaviour, especially after her stroke and the murders of Mr Terrence (Terry) Hodson and his wife Christine (Hodson murders). When she offered to become a human source in 2005, Victoria Police was happy to accept.

The SDU soon learned that Ms Gobbo had valuable information.⁵¹ Her initial risk assessment, prepared by police as part of the 2005 registration, recorded that she represented members of the Mokbel crime syndicate headed by Mr Antonios (Tony) Mokbel.⁵²

In his evidence to the Commission, one of Ms Gobbo’s SDU handlers agreed that they frequently discussed the Mokbels, as the SDU wanted this information for the Purana Taskforce.⁵³ This was clear from her first meeting with the SDU:

MR WHITE: So where do we start?

MS GOBBO: Well, you—I guess you can start.

MR WHITE: I can say then tell me everything you know about Tony Mokbel.⁵⁴

One of Ms Gobbo’s handlers told the Commission that he often asked human sources this type of question to assess the source.⁵⁵ If, as they claimed in evidence to the Commission, SDU officers were careful not to elicit privileged information, this opening question showed gross carelessness. It was apt to elicit the very information they said they wished to avoid.⁵⁶ It set the tone for their many future interactions.

From the outset, the risks arising from the information Ms Gobbo provided were obvious. She raised disclosure issues with the SDU in their first meeting in September 2005.⁵⁷ For example she was concerned that her identity could be disclosed in response to a subpoena, and that if she were revealed as a human source she would be ‘judged as a lawyer, not just as a person assisting police’.⁵⁸

As outlined in Chapters 6 and 9, the initial SDU risk assessment prepared by experienced officers did not identify the most obvious of risks—that information about Ms Gobbo’s past, current or future clients could breach legal professional privilege or client confidentiality and, if used in later prosecutions, may have to be disclosed to the Victorian Director of Public Prosecutions (DPP), the court and the accused person. Nor did the initial risk assessment raise the need for legal advice, despite the circumstances ‘crying out’ for it.⁵⁹

Former officers of the SDU told the Commission in evidence and responsive submissions that they did not think it necessary to get legal advice at the time, as they expected to obtain information only about Ms Gobbo’s criminal associates, not her clients, and would not obtain information subject to legal professional privilege.⁶⁰

The Commission considers that this was a foolishly optimistic hope and was inconsistent with the questions SDU officers asked Ms Gobbo in the first meeting. The most likely reason they did not seek legal advice, especially as she went on to provide information about her clients, some of which was subject to legal obligations of confidentiality or privilege, was that they feared the advice would be either not to register her or constrain what she could provide. With the benefit of hindsight, both Victoria Police and former SDU officers accept that legal advice should have been sought.⁶¹

This inaction was repeated at the managerial level when Mr White briefed then Acting Superintendent Douglas (Doug) Cowlishaw, the SDU’s Officer in Charge (OIC), in October 2005 about Ms Gobbo’s registration as a human source.⁶² Mr Cowlishaw knew she was a barrister and likely to provide information about Purana Taskforce targets, but did not take steps to obtain legal advice or examine the obvious risks inherent in the situation.⁶³ Nor did he raise such matters when Ms Gobbo’s acting controller delivered Ms Gobbo’s SDU risk assessment to him on 23 November 2005.⁶⁴

Mr Cowlishaw submitted that while he did not shy away from his responsibilities, he did not recall receiving or seeing the risk assessment. He said the evidence did not support the conclusion that he received it and read it; and consequently, there is no basis to find that he failed to identify the risks that Ms Gobbo’s use posed.⁶⁵

The Commission is satisfied that the contemporaneous record suggests that it is more likely that Mr Cowlishaw did receive and read the risk assessment. The Commission recognises, however, that Mr Cowlishaw’s failure to take the steps outlined above must be viewed in the context of the workload difficulties he faced due to the lack of a dedicated Inspector for the SDU.⁶⁶

The involvement of senior officers

Higher ranked officers also knew that Ms Gobbo might have information to assist the Purana Taskforce.

On 12 September 2005, then Detective Senior Sergeant James (Jim) O’Brien, who was in charge of the MDID, recorded in his diary speaking with Mr Overland about Ms Gobbo⁶⁷ and ‘opportunities’ regarding an investigation into Mr Tony Mokbel and his associates (Operation Quills).⁶⁸

In evidence to the Commission, Mr O’Brien indicated he did not recall the details, but thought the discussion was probably about information Ms Gobbo had provided two MDID officers, then Detective Sergeant Steve Mansell and then Detective Senior Constable Paul Rowe, who both spoke with Ms Gobbo leading up to her 2005 registration as a human source.⁶⁹

Mr Overland’s diary entry of the meeting does not include any reference to Ms Gobbo. He told the Commission he did not believe he was told of her registration as a human source until after she was registered.⁷⁰

Given that memories fade with time, Mr O’Brien’s contemporaneous diary notes are likely to provide the most reliable evidence. The Commission is satisfied Mr O’Brien probably did discuss Ms Gobbo’s registration with Mr Overland on 12 September 2005. Both he and Mr Overland should have identified at this early stage the grave risks involved in, and the need to carefully consider, the extraordinary step of registering a criminal defence barrister as a human source.

Even if Mr Overland was not aware of the intention to recruit Ms Gobbo, he accepts he knew of her registration soon after it occurred.⁷¹ The Commission considers that he should immediately have obtained legal advice on her proposed use, noting his:

• senior rank and legal qualifications⁷²
• awareness of past police failures in handling human sources,⁷³ the inherent risks of managing human sources generally and his oversight of the recent reforms in this area⁷⁴
• diary note from a 26 September 2005 meeting of the Purana Taskforce executive management team (chaired by Mr Overland), discussing Ms Gobbo’s registration as a human source and noting the need to carefully manage her⁷⁵
• approval of an investigation plan targeting the Mokbel syndicate, with an objective to ‘utilise the continuing information provided by registered human sources’,⁷⁶ while knowing that Ms Gobbo had represented members of the Mokbel syndicate (including Mr Tony Mokbel)⁷⁷
• evidence to the Commission that, when he heard of Ms Gobbo’s registration, he immediately identified issues of concern, including the potential for miscarriages of justice.⁷⁸

Despite all of this, Mr Overland said in his evidence to the Commission he was ‘conscious not to intervene ... [and] didn’t think it was appropriate’, as the SDU, which managed Ms Gobbo as a human source, was outside his chain of command.⁷⁹ He assumed the SDU would handle it and that proper disclosure and PII claims would be made to the court (to obtain authority for the non-disclosure of Ms Gobbo’s status as a source), if appropriate.⁸⁰ Mr Overland raised similar matters in submissions to the Commission.⁸¹

Having considered Mr Overland’s contentions, the Commission is of the view that the most likely reason that he did not obtain legal advice was that he feared it would limit the information he hoped to obtain from Ms Gobbo to help solve the gangland wars.

Use of Ms Gobbo as a human source

Many Victoria Police officers in the Purana Taskforce and the SDU were involved in Ms Gobbo’s use and management as a human source.

Figure 8.1 sets out the key Purana Taskforce officers from 2003 to 2010.

Figure 8.1: Purana Taskforce key officers, 2003 to 2010

During Ms Gobbo’s third registration as a human source, from September 2005 to January 2009, she was managed by a number of different SDU officers. Figure 8.2 sets out a timeline of the SDU officers during the period of Ms Gobbo’s third registration as a human source.

Figure 8.2: Source Development Unit officers who managed Ms Gobbo as a human source, September 2005 to January 2009

As discussed in Chapter 7, the conduct of Ms Gobbo and Victoria Police may have affected the cases of 1,011 individuals. This chapter uses case studies of Mr McGrath, Mr Thomas (a pseudonym) and Mr Cooper (a pseudonym), to illustrate the conduct of Victoria Police officers.

In the AB v CD decision, the High Court of Australia found:

… Victoria Police were guilty of reprehensible conduct in knowingly encouraging [Ms Gobbo] to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will.⁸²

The case studies invoke the Sir Walter Scott quote, ‘Oh, what a tangled web we weave, when first we practice to deceive!’⁸³ They demonstrate patterns of behaviour and manifold problems that quickly became an increasingly complex web of deception.

Later in the chapter, further case studies arising from Operation Khadi and the Petra and Briars Taskforces illustrate Victoria Police’s disclosure failures and its efforts to conceal Ms Gobbo’s role. The common thread is that many current and former police officers seem to have failed to properly manage the situation and to meet all of their duties and obligations.

The evidence before the Commission, consistent with the High Court’s assessment quoted above, supports the conclusion that the conduct of Victoria Police officers and of Victoria Police as an institution, fell short of expected standards by:

• encouraging Ms Gobbo to act as counsel for an accused person, or at least condoning it, knowing that she was a human source and therefore not providing them with independent legal representation
• encouraging Ms Gobbo to act as counsel for an accused person, or at least condoning it, while knowing she was covertly informing or had covertly informed against them
• encouraging Ms Gobbo to act as counsel for an accused person, or at least condoning it, when she had provided information that assisted police to obtain incriminating evidence against them
• failing to disclose to an accused person, either directly or through the 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 it may have been improperly or illegally obtained
• failing to take appropriate steps to ensure that any PII claim concerning the disclosable evidence was determined by a court.⁸⁴

Case study: Mr McGrath (a pseudonym)

The details of Mr McGrath’s case, and the role of Ms Gobbo as a human source in this case, are set out in Chapter 7. This chapter examines those events with an emphasis on the role of current and former police officers.

Figure 8.3 outlines the key Victoria Police officers involved in Mr McGrath’s case.

Figure 8.3: Mr McGrath (a pseudonym) case study—key Victoria Police officers, 2003–05

The events relevant to Mr McGrath’s case preceded Ms Gobbo’s registration as a human source in 2005, but fall squarely within the Commission’s terms of reference because:

• Ms Gobbo was effectively acting as a human source and developed a human source-like relationship with Mr Bateson⁸⁵
• Mr McGrath’s decision to plead guilty and implicate his criminal associates, colloquially known as ‘rolling’, was a significant breakthrough in solving the gangland murders,⁸⁶ setting off the domino effect police were seeking
• it provided the template for Victoria Police’s relationship with Ms Gobbo.

The first element of that template was that key parts of Victoria Police—investigators, senior officers and the SDU—knew of Ms Gobbo’s conflicted role as Mr McGrath’s lawyer while providing intelligence to police. Purana Taskforce investigators Mr Bateson, Mr Gavan Ryan and Mr Andrew Allen had contact with Ms Gobbo as Mr McGrath edged closer to rolling.⁸⁷ In turn, the Purana Taskforce kept senior officers Mr Overland, Mr Purton and Superintendent John Whitmore updated on Mr McGrath’s statement-making and Ms Gobbo’s assistance.⁸⁸ At her first meeting with the SDU, Ms Gobbo told them she assisted Purana Taskforce in rolling Mr McGrath and impressed upon them the need to conceal this for her safety.⁸⁹

The second element was Victoria Police’s simplistic solution to the ethical dilemma: several officers told the Commission that Ms Gobbo’s conflicts of interest were her responsibility, not theirs.⁹⁰ In Mr McGrath’s case, Victoria Police did nothing to address Ms Gobbo’s conflicts in:

• representing Mr McGrath and assisting him to become a prosecution witness against another client, Mr Williams, in relation to the murder of Mr Michael Marshall (Marshall murder)
• assisting Mr McGrath to make a statement implicating Mr Thomas in the Moran/Barbaro murders and then representing Mr Thomas in relation to those murders.

The third and most significant element of the template was Victoria Police’s concealment of the true nature of Ms Gobbo’s involvement in rolling Mr McGrath. They failed to adequately disclose to those incriminated by Mr McGrath’s statements, the prosecution or the court, her role in assisting Mr McGrath to refine significant aspects of his statement about the Marshall murder, implicating Mr Williams and Mr Andrews (a pseudonym). This put those people whom Mr McGrath incriminated (Mr Thomas, Mr Williams and Mr Andrews) at a significant forensic disadvantage. The concealment of Ms Gobbo’s involvement potentially rendered their convictions unfair. It appears that Victoria Police officers breached their disclosure obligations to instead make good on their assurances to protect Ms Gobbo’s identity and her safety.

Events leading to Mr McGrath rolling

Chapter 7 details the circumstances surrounding Mr McGrath rolling. The key events relevant to Victoria Police officers’ conduct include:

• In late June 2004, Mr McGrath, represented by Ms Gobbo, agreed to plead guilty and assist police by providing statements in relation to the Moran/Barbaro and Marshall murders.⁹¹
• On 9 July 2004, Mr Bateson gave Mr McGrath, among other statements, a copy of his statement about the Marshall murder to review, but Mr McGrath would not sign the statements until Ms Gobbo had reviewed them.⁹²
• On 10 July 2004, Mr Bateson recorded in his day book that Ms Gobbo read Mr McGrath’s draft statement in the Marshall murder case and expressed scepticism about claims that he had thought it was going to be a debt collection not a premeditated murder, and that he was not paid for the job.⁹³
• On 11 July 2004, Mr Bateson arranged for Ms Gobbo to visit Mr McGrath in prison; he later recorded in his day book ‘will be truthful’ after he spoke to Ms Gobbo, referring to Mr McGrath and his statement about the Marshall murder.⁹⁴
• On 12 July 2004, the Purana Taskforce executive management team, including Mr Overland, was updated on the weekend’s events, including Ms Gobbo’s view that elements of Mr McGrath’s statements were ‘ridiculous’ and would be changed.⁹⁵
• On 13 July 2004, Mr McGrath signed his statement, now recording that it was a premeditated murder not a debt collection gone wrong.⁹⁶

Failure to adequately disclose Ms Gobbo’s role regarding Mr McGrath’s statements

As relevant Victoria Police officers would or should have appreciated, knowledge of the above matters was relevant to the defence of those incriminated by Mr McGrath’s statements. These matters went to Mr McGrath’s credibility as a prosecution witness.⁹⁷

Ms Gobbo and the Victoria Police officers involved emphasised that she did nothing more than encourage Mr McGrath to tell the truth. However, they would or should have appreciated that, after Ms Gobbo’s intervention, he changed his account of the motivation for the Marshall murder, with the effect of bolstering the police case. In turn, he received a more favourable sentence. Even if Mr McGrath’s refined statement was truthful, police should have disclosed to the defence the process by which it was achieved.

Police avoided disclosing this helpful information to the defence, the prosecution or the court. Specifically:

• In hearings in the Supreme Court of Victoria regarding disclosure, Mr Bateson, in answer to questioning as to whether there were any other statements made by Mr McGrath, said no other signed or unsigned statements existed ‘relevant to these charges’.⁹⁸
• Mr Bateson also gave evidence that he had no documents regarding negotiations or discussions leading to Mr McGrath becoming a prosecution witness and did not believe any existed.⁹⁹
• Ms Gobbo, who was representing Mr Thomas as junior counsel in these disclosure hearings, declined to cross-examine Mr Bateson,¹⁰⁰ telling the Commission she had a ‘huge conflict’ in being unable to reveal what she knew about Mr McGrath’s draft statements ‘for fear of the consequences’.¹⁰¹
• During the committal proceedings for both the Marshall and Moran/Barbaro murders, Mr Thomas’ barrister, Mr Colin Lovitt, QC asked Mr Bateson if the drafts of any of Mr McGrath’s statements were altered prior to him signing them on 13 July 2004. Mr Bateson responded, ‘the only draft is, or the only difference that we have recorded is the addresses that we have deleted out of the statements’.¹⁰²
• Counsel Assisting submitted that Mr Bateson’s day book pages for 10 and 11 July 2004, which revealed the substance of Ms Gobbo’s involvement in Mr McGrath changing his statement, were not submitted to the court for determination of a PII claim.¹⁰³ As discussed below, this is heavily disputed by Mr Bateson.
• At Mr Thomas’ subsequent hearing, Ms Gobbo did not expose Mr McGrath’s credibility issues regarding the process of taking his statements, which would have exposed the flaws in the prosecution case and supported his bail application. Mr Bateson, who had filed an affidavit opposing the bail application and was present in court, must have felt comfortable that she would not cross-examine him on these significant issues.¹⁰⁴

Some of these matters are discussed further below.

During committal proceedings in relation to the Moran/Barbaro and Marshall murders, references to Ms Gobbo were redacted from investigator materials disclosed to the defence following a successful PII claim. It may be true, as Mr Bateson and Victoria Police contend, that the notes in Mr Bateson’s day book and other materials were redacted pursuant to proper process. As a matter of law, that ruling is binding unless overturned on appeal.

Counsel Assisting submitted that critical pages from Mr Bateson’s day book—outlining his discussions with Ms Gobbo between 10 and 11 July 2004 and her role in finalising Mr McGrath’s statement—were not disclosed to the court as part of the PII claim. They asserted that, had the Chief Magistrate been given those pages, he would not have remained silent when Mr Bateson gave evidence.¹⁰⁵ Victoria Police and Mr Bateson strongly contend to the contrary.¹⁰⁶

The Commission could not fairly resolve this dispute, given the absence of original transcripts and that the issue largely arose after Mr Bateson’s evidence had concluded and the Commission therefore did not hear from him directly on the matter. It is one of a number of such disputes that may need to be investigated further.

Following Mr Bateson’s evidence to the Commission on 20 November 2019, and contrary to evidence he gave at the committal proceedings, Victoria Police belatedly produced a draft of Mr McGrath’s statement about the Marshall murder. Its metadata suggested it was most likely created on 9 July 2004 and was probably the draft shown to Ms Gobbo on 10 July 2004. The changes between this and the final version signed on 13 July 2004 were material, focused on Mr McGrath’s shifting belief around the purpose of going to Mr Marshall’s home: to collect a debt or to kill him.¹⁰⁷ Neither Victoria Police nor Ms Gobbo thought Mr McGrath had been truthful on these matters. This should have been disclosed to the defence.

Mr Bateson asserted there was no basis to find he was being dishonest in stating there were no prior drafts of Mr McGrath’s statements.¹⁰⁸ Mr Bateson may well have answered honestly in a technical sense, given Victoria Police’s statement-taking processes at the time. But Mr Bateson knew or should have known when he gave evidence at these relevant proceedings that on or around 9 July 2004, there was an earlier draft statement that materially changed following Ms Gobbo’s involvement (or at least that aspects of the statement had been materially altered) and this was never disclosed to the prosecution or defence.

Victoria Police asserted that Counsel Assisting ignored that Mr Thomas and Mr Williams knew of Mr McGrath’s prior inconsistent statement regarding the intention to murder Mr Marshall and cross-examined him on this point.¹⁰⁹ As Counsel Assisting submitted, however, the real issue of concern was the concealment of the circumstances leading to the material changes to Mr McGrath’s draft statement between 9 and 13 July 2004 and Ms Gobbo’s role in that process.¹¹⁰ It was helpful to the defence to know why and how Mr McGrath changed his position, given he had a powerful incentive to say what he thought police wanted to hear.¹¹¹

More broadly, Mr Bateson gave evidence to the Commission that Ms Gobbo’s identity was concealed because of safety concerns should it have become known that she acted for Mr McGrath in this way.¹¹² The Commission accepts these concerns were real, amplified by the gangland murders, Mr Veniamin’s recent threats and the Hodson murders. But safety concerns do not provide an excuse for flouting the duties of pre-trial disclosure.

Summary of conduct

The Commission is satisfied that the Victoria Police officers who knew of Ms Gobbo’s role in relation to the preparation of Mr McGrath’s statements, and knew that they were not disclosed to the defence, engaged in conduct that may have undermined the administration of justice.

It is no answer to a lack of individual responsibility and accountability to say, as Victoria Police and individual officers submitted based on the evidence of Assistant Commissioner Kevin Casey, that communication outside the chain of command (an officer raising issues beyond that officer’s immediate supervisor) was not the system at the time.¹¹³ Nor is it an answer to say that any conflict of interest was a matter for Ms Gobbo. Every police officer, not just the informant in the proceedings, was bound by their oath or affirmation to discharge their duties, including their duty of disclosure, faithfully and according to law.¹¹⁴

Similarly, it is not an answer to say that concern for Ms Gobbo’s safety necessitated concealing her role. If Victoria Police’s concerns for her safety required them to keep her role secret even from the court, it should have counselled her to not represent Mr McGrath or be further involved in the murder proceedings. If she would not take that direction, legal advice should have been obtained or the matter discussed with the DPP.

Had the true nature of Ms Gobbo’s involvement with Mr McGrath been disclosed, the events giving rise to this Commission would probably not have occurred. Disclosure would have likely prompted Mr Thomas to seek a new lawyer and Ms Gobbo’s other clients would likely not have considered her part of their crew or continued to retain her services.

The conduct of Victoria Police and Ms Gobbo in Mr McGrath’s case began the web of deceit that grew more complex over time. The need to conceal her assistance to police to protect her safety clouded officers’ decisions and allowed them to rationalise their conduct. As Ms Gobbo made plain in her first meeting with the SDU, protection like that provided by the Purana Taskforce in Mr McGrath’s case was a condition of her becoming a human source:

And I still live in fear of that coming out because all it’s gunna take is for some Supreme Court judge to release police diary notes where it’s me that they’re meeting and it’s me that they’re speaking to, it’s me editing, like, the statements before they get sworn and served, that sort of stuff.

…

… I know the police protected me in the Magistrates’ Court with the first round of subpoenas, but now we’re at Supreme Court stage … and a judge might rule differently to a magistrate. If that happens, I’m—I’m—I’m fucked.¹¹⁵

Case study: Mr Thomas (a pseudonym)

The details of Mr Thomas’ case study, and the role of Ms Gobbo as a human source, are set out in Chapter 7. This chapter examines those events with an emphasis on the role of current and former police officers. Figure 8.4 outlines the key Victoria Police officers involved in Mr Thomas’ case.

Figure 8.4: Mr Thomas (a pseudonym) case study—key Victoria Police officers, 2004–06

Conflict of interest from the outset

On 16 August 2004, Mr Thomas was arrested and charged with the 2003 Moran/Barbaro murders, based largely on a statement from Mr McGrath.¹¹⁶ Despite knowing that Ms Gobbo acted for Mr McGrath and refined his statements, the Purana Taskforce facilitated Mr Thomas’ request to speak to Ms Gobbo¹¹⁷ and, with police support, she continued to act for him.¹¹⁸

The Commission accepts Counsel Assisting’s contention that Ms Gobbo should not have represented anyone being investigated as a result of Mr McGrath’s statements.¹¹⁹ Ms Gobbo accepted in her evidence to the Commission that in acting for Mr Thomas, she ‘obviously’ ‘had a huge conflict’ and that she did not act in his best interests ‘for fear of the consequences’.¹²⁰

Responsive submissions of Ms Gobbo and several current and former Victoria Police officers emphasised that Mr Thomas knew of, and may have perceived advantage in, her prior representation of Mr McGrath.¹²¹ The Commission notes that Counsel Assisting, in their reply submissions, accepted it was publicly known to many people that Ms Gobbo had previously represented Mr McGrath; however, only Ms Gobbo and some police officers knew of her involvement in the material changes to Mr McGrath’s statement.¹²²

The Commission considered the evidence and responsive submissions from former officers of the Purana Taskforce asserting that they either did not appreciate Ms Gobbo’s conflict of interest or did not believe her conflicts were their responsibility, given that their superior officers and later the SDU were aware of the situation.¹²³

Victoria Police submitted that this misguided attitude (that conflicts were Ms Gobbo’s to manage) was due largely to systemic failings in Victoria Police training, leadership and governance.¹²⁴ Systemic failures, however, do not absolve individual officers, especially those directly responsible or in senior, supervisory positions, from failing to discharge their disclosure duties or to address conflicts that could detrimentally affect the administration of justice.

Systemic and organisational issues relevant to the conduct of Victoria Police officers involved in Ms Gobbo’s use as a human source are discussed in Chapter 9.

Ms Gobbo’s representation of Mr Thomas

From her September 2005 registration as a human source, Ms Gobbo, at various times, acted both as Mr Thomas’ purported lawyer and as an agent of Victoria Police encouraging him to roll. Police officers did nothing effective to discourage this deception, at times appearing to encourage it.

As set out in Chapter 7, during this period Mr Thomas’ name was mentioned 160 times in Informer Contact Reports (ICRs) detailing information that Ms Gobbo passed on to the SDU. She provided information including:

• that Mr Thomas and Mr Cooper ‘would both have sufficient information about Mokbel to put him away for a long time’¹²⁵
• Mr Thomas’ attitude towards rolling, and the advice she would give him¹²⁶
• Mr Thomas’ criminal associations, prior drug activities and those who could incriminate him¹²⁷
• advice on how police could best encourage or manipulate Mr Thomas to roll.¹²⁸

Victoria Police and Ms Gobbo were wandering into a legal and ethical minefield. Her SDU handlers advised Ms Gobbo not to get too close to Mr Thomas.¹²⁹ For example, a February 2006 ICR recorded:

Source advised [by Mr Green] to stay away from [Thomas] and him assisting police as it will draw attention to her in her current position with Tony Mokbel trial etc etc previously acting for [McGrath].¹³⁰

Ms Gobbo found excuses to continue acting for Mr Thomas: that she felt ‘obliged’;¹³¹ that she was unable to suggest alternative lawyers; and that he needed a ‘push to roll over and assist police’.¹³² Former SDU officers accepted these excuses, along with the information she provided about Mr Thomas. The obvious risks to his defence were ignored.¹³³

Counsel Assisting submitted that Victoria Police officers were, at the very least, remiss in not seeking legal advice given the novel, complex and fraught situation of a criminal defence barrister informing on her clients to police. They noted that around this time, the Purana Taskforce obtained legal advice when legal professional privilege issues arose in Operation Primi, investigating the 6 February 2006 murder of lawyer Mr Mario Condello.¹³⁴

Responsive submissions asserted that legal advice was not readily obtainable by the Purana Taskforce; that the single example cited by Counsel Assisting did not prove otherwise; and that the Taskforce had no embedded legal resources and rarely sought legal advice on operational matters.¹³⁵ Submissions noted that, in any case, Mr O’Brien did not always identify the issues, a pre-requisite for seeking advice, and assumed that the SDU would manage this.¹³⁶

The Commission is satisfied that this was an obviously risky situation: the officers involved could and should have obtained legal advice, but chose not to, partly to protect Ms Gobbo, but partly because they feared the advice may be not to use Ms Gobbo as a human source at all, or only with the most stringent safeguards. The Commission notes that the Purana Taskforce could access internal and external legal advice when warranted, as the Operation Primi example shows, and that Victoria Police had a Legal Services Department and access to the VGSO at this time.

This pattern—SDU officers not obtaining legal advice and instead telling Ms Gobbo to exercise caution, her ignoring those instructions, and then all parties acting together to conceal her role as a human source—became a familiar theme. No current or former Victoria Police officer who was aware of what Ms Gobbo was doing took effective steps to stop her duplicity, or reveal her true role to her clients, other defence lawyers, the DPP or the courts.

Concealing Ms Gobbo’s dual role

The SDU was concerned that investigators’ diary entries could reveal Ms Gobbo’s identity if they were disclosed. When Mr White took this up with the Purana Taskforce, Mr Bateson told him he knew Ms Gobbo was a human source and was aware of the ‘issues’.¹³⁷ The following week, according to Mr White’s diary, he raised the issue with Mr O’Brien, who agreed to monitor and ‘sanitise’ (deidentify) Mr Bateson’s notes.¹³⁸

In responsive submissions, Mr O’Brien acknowledged that Mr White’s diary appeared to record a conversation between Mr O’Brien and one of Ms Gobbo’s handlers, not between Mr O’Brien and Mr White. He contended it is unsatisfactory that neither person who participated in the conversation, was asked about it by the Commission.¹³⁹ On the evidence, the Commission cannot definitively determine this matter; however, Mr White’s contemporaneous note, although hearsay, concerningly suggests investigators’ notes may have been sanitised.

Counsel Assisting pointed to several instances to support their views that Mr Bateson deceptively sanitised his notes by referring to Ms Gobbo as ‘Informer 3838’ when she was not providing intelligence as a human source but as acting as Mr Thomas’ lawyer. They contended that the consequence of Mr Bateson referring to Ms Gobbo as a human source in his notes enabled a PII claim ‘without a likely call for explanation’.¹⁴⁰ For example, on 21 April 2006, Mr Bateson wrote ‘Nicola Gobbo’ and ‘3838’ in consecutive diary entries made only hours apart. The reference to ‘Ms Gobbo’ by name related to a public appearance in court.¹⁴¹ Later that night, Mr Bateson spoke to Ms Gobbo about Mr Thomas’ possible interest in a plea deal, this time recording her human source number, even though she was acting as Mr Thomas’ lawyer, not as a human source.¹⁴²

Mr Bateson said he mistakenly referred to Ms Gobbo by her human source number on a number of occasions, not by way of deliberate deception.¹⁴³ In responsive submissions, Mr Bateson contended that he did not have a consistent approach to the use of ‘Ms Gobbo’ and ‘3838’.¹⁴⁴ Further, he submitted that the evidence did not indicate that he was involved in concealing diary entries from the defence.¹⁴⁵

The Commission finds it unlikely that Mr Bateson, an experienced investigator who clearly compiled his notes with great care, referred to Ms Gobbo in those different ways by mere happenstance. Rather, it seems likely that he referred to Ms Gobbo by her registration number ‘3838’ to disguise and avoid having to disclose her dual role as human source and Mr Thomas’ purported lawyer.

The knowledge of senior officers

Senior officers were kept updated on the progress to roll Mr Thomas. On 19 February 2006, Ms Gobbo told Mr Bateson that Mr Thomas may want to assist police. This was quickly relayed up the chain of command to Mr Bateson’s supervisor, Mr Ryan, who interrupted Mr O’Brien, Mr Overland and Mr Geoff Horgan, QC, then of the Victorian Office of Public Prosecutions (OPP), on a Sunday to share the news. Updates to senior officers continued over the following days as events developed.¹⁴⁶

Purana Taskforce vouch for Ms Gobbo’s honesty

Purana Taskforce officers visited Mr Thomas several times in prison to discuss his situation.

On 15 March 2006, Mr Thomas asked Mr Bateson and Mr O’Brien for their opinion of his legal team. Victoria Police asserted that the following exchange demonstrates their efforts to ensure he had independent representation:

MR THOMAS: Do I keep the solicitors?

MR BATESON: Well look I’m not sure, it’s up to you.

MR THOMAS: Jim’s, I’ve got heaps of confidence in Jim. Nicola’s good but she has to give something, I can’t, you know what I mean?

MR BATESON: I personally think that you’re better off with independent um legal representation.

MR THOMAS: That’s what I mean.

MR BATESON: That’s what I personally think. Now I can’t tell you to change solicitors, um, or anything because as far as I know they’re both very good. But what I’m saying is that they’re involved with a lot of other people.¹⁴⁷

Officers of the Purana Taskforce met with Mr Thomas again on 23 March 2006. He gave Mr Bateson and Mr O’Brien information about several gangland murders, and about police corruption and drug offending involving the Mokbels and Mr Williams. Mr Bateson said police would review his information and confer with prosecutors.¹⁴⁸ Mr Thomas repeated his misgivings about Ms Gobbo:

MR THOMAS: … you have got to answer this one for me, Nicola and Jim would like to convince me, because Nicola knows right, really I shouldn’t be doing fucking 34 years for nothing, cos she knows a fair bit about it and she’s the one that convinced me to come in as well and Jim Valos, Jim Valos always has. Forget Jim now. I want to ask you, one sec, I want to ask you a question, right Nicola’s the one who convinced me … I don’t know but I trust her, who can I get to put it all together for me?

MR BATESON: Look, I reckon Jim Valos is an honest solicitor.

…

MR BATESON: And I believe Nicola is ultimately honest too.

MR THOMAS: She is but I don’t think she’ll sell me out to ‘em.

MR BATESON: Well I don’t think she will either.

MR THOMAS: I’ll be honest with you. I’ve got a gut feeling she’d rather help yous than help what’s going on out there.

MR BATESON: Well I don’t know about that but I think she’s honest mate.

MR THOMAS: Can I ask this question? If, whatever happens, I need someone I can trust right. Nicola’s the one, like they come in (indecipherable) they were convincing me that … after what happened.

MR O’BRIEN: I think it’d be advantageous for you to have someone independent.¹⁴⁹

…

MR BATESON: Well, I mean from my point of view, I think Nicola is an honest barrister.¹⁵⁰

Mr Bateson contended that he could not direct Mr Thomas to seek alternative representation because it was not his role or responsibility to do so, and telling him not to use Ms Gobbo may have placed her safety at risk.¹⁵¹ Mr Bateson also gave evidence, reiterated in responsive submissions, thathe thought Ms Gobbo’s actions did not exclude her from being honest; that he did not know that she was informing on Mr Thomas or other clients at this time;¹⁵² that she would give Mr Thomas good advice; and that Mr Thomas’ only concern was keeping his potential cooperation confidential.¹⁵³

Mr Bateson, knew, however, that Ms Gobbo was dishonest in her dealings with Mr Thomas and could not give him independent legal advice, in that she was a human source and she did not disclose to Mr Thomas the true nature of her assistance to Mr McGrath. This is supported by the later jovial reaction of Ms Gobbo and SDU officers when Ms Gobbo read aloud the transcript of Mr Bateson vouching for her honesty, as discussed further below.¹⁵⁴

The Commission considers that it would or should have been obvious to Mr Bateson that Mr Thomas’ concerns about Ms Gobbo were not limited to keeping his cooperation secret. He was charged with a double murder and was considering implicating leading organised crime figures in serious offences. If he did so, his life and the safety of those close to him would be jeopardised indefinitely. Before making this decision, he understandably wanted (and needed) independent legal advice as to the strength of the case against him and his chance of acquittal. Ms Gobbo, hopelessly conflicted, could not and did not provide that independent advice.

Mr Thomas’ queries about Ms Gobbo as his lawyer provided a perfect opportunity for Mr Bateson and Mr O’Brien to steer him to an independent lawyer. After Mr O’Brien’s ineffective attempt to do so, Mr Bateson vouched for Ms Gobbo’s honesty when he must have known this was untrue. It seems to have been a short-term convenient untruth to help police end the gangland wars.

A missed opportunity to resolve conflicts of interest

Any uncertainty about the propriety of Ms Gobbo acting for Mr Thomas should have dissolved when Mr Bateson attended Supreme Court hearings on 28 and 30 March 2006. The judge made it clear that Solicitor 2 (a pseudonym) could not continue to act for Mr Williams due to a conflict, having earlier represented his co-accused Mr Andrews, by then also a prosecution witness.¹⁵⁵ Ms Gobbo’s representation of first Mr McGrath and then Mr Thomas in the circumstances outlined earlier was analogous, if not worse. At around this time, Mr Bateson attended meetings with police lawyers and the OPP but did not tell them of the extent of Ms Gobbo’s conflict.¹⁵⁶

Mr Bateson told the Commission that, at that time, conflicts were common among the small cadre of barristers who acted for organised criminals and submitted that Ms Gobbo’s conflicts were well-known and were for the courts, DPP and legal fraternity to manage.¹⁵⁷

Mr Bateson contended that he was unaware of the impropriety of Ms Gobbo representing Mr Thomas, who in any case knew of her earlier representation of Mr McGrath.¹⁵⁸ The Commission does not accept this. Mr Thomas did not know about her role in the changes to Mr McGrath’s statements and, as Mr Bateson knew, Ms Gobbo would and could not put Mr Thomas’ interests before her own as this would require disclosing her role in the changes to Mr McGrath’s statement regarding the Marshall murder.

The Commission considers, however, that an investigator of Mr Bateson’s ability and experience with a knowledge of Ms Gobbo’s duplicitous role should have appreciated that her providing Mr Thomas with legal advice was apt to interfere with the administration of justice. The Commission considers that Mr Bateson’s failure to recommend that Mr Thomas find a lawyer other than Ms Gobbo and to raise her conflict with the OPP or Victoria Police lawyers was not solely to protect Ms Gobbo’s identity and safety; it also suited the Purana Taskforce’s objectives.¹⁵⁹

Ms Gobbo as an agent of the Purana Taskforce

Mr Thomas did not roll as quickly as the Purana Taskforce hoped. In early April 2006, Ms Gobbo reported to her handler that things were at an impasse.¹⁶⁰ Mr O’Brien, Mr Ryan and Mr Bateson met on 19 April 2006 and decided to stop dealing directly with Mr Thomas; they would instead provide confidential transcripts of their discussions with Mr Thomas to Ms Gobbo and she would work on him. Mr O’Brien delivered the transcripts to Ms Gobbo’s controller and handlers.¹⁶¹

On 20 April 2006, Ms Gobbo met with SDU officers and read the transcript. They laughed when Ms Gobbo read aloud that Mr Bateson had vouched for her honesty and that Mr Thomas had a gut feeling, accurate as it turned out, that she would rather help police than ‘what’s going on out there’.¹⁶² Ms Gobbo commented on the irony of Mr Bateson not being able to tell Mr Thomas that she ‘got Mr McGrath over the line’.¹⁶³ Her SDU handler, Mr Peter Smith (a pseudonym), told Ms Gobbo that the Purana Taskforce would not deal with Mr Thomas unless he started ‘telling more the truth’, and Mr White added:

… if anybody can get him to tell the truth it will be you. Now, is that in his own interests? We don’t know enough about it. You would know a lot more about that…

… don’t read anything more [into] this than the fact that from an investigator’s point of view, there is an opportunity to get the truth out of [Mr Thomas]. Clearly they’re not getting it now and [inaudible] is insufficient for them to even consider running any further with it but they need to explore it as far as they can and if you can help them to do that, all well and good.¹⁶⁴

Current and former police officers told the Commission in evidence and responsive submissions that Ms Gobbo was not tasked as a human source in relation to these transcripts; rather, they were given to her as Mr Thomas’ lawyer as there was uncertainty about who was the solicitor on the record. Further they submitted that, there was no evidence about how she was to, or did, use the transcripts to encourage Mr Thomas to make admissions, plead guilty or implicate associates.¹⁶⁵

The Commission is satisfied that officers gave the transcripts to Ms Gobbo in her role as a human source, noting that:

• Mr Bateson’s relevant diary entry referred to ‘3838’¹⁶⁶
• the Source Management Log (SML) on 19 April 2006 recorded ‘Request for HS to speak to Thomas re truthfulness of statements being made by same’,¹⁶⁷ suggesting that the Purana Taskforce wanted Ms Gobbo to get Mr Thomas to change his account¹⁶⁸
• transcripts were provided to Ms Gobbo through the SDU, whose role was to handle human sources¹⁶⁹
• legal material was ordinarily provided to a person’s instructing solicitor; any uncertainty around whether lawyer, Mr Jim Valos, was still acting could have been resolved with a phone call¹⁷⁰
• Mr Thomas was not told that Ms Gobbo had reviewed this transcript.¹⁷¹

Mr Thomas becomes a witness for the Purana Taskforce

On 6 July 2006, police began taking Mr Thomas’ statements. He eventually made around 20 statements implicating organised crime figures.¹⁷² Following the pattern of behaviour established for Mr McGrath:

• statements were taken on a computer, with the Purana Taskforce saving changes over the original so that there were no prior drafts to be disclosed to the defence, despite Mr Thomas’ credibility potentially being at issue¹⁷³
• Ms Gobbo’s involvement was not adequately disclosed to the prosecution, defence and courts¹⁷⁴
• Ms Gobbo told the SDU officers the questions that the Purana Taskforce should ask Mr Thomas, and they told the Taskforce¹⁷⁵
• Ms Gobbo met with Mr Thomas when the Purana Taskforce was concerned about his truthfulness, and later reported to the SDU, he was ‘up to 80’ per cent truthful¹⁷⁶
• Ms Gobbo went to the police station to review Mr Thomas’ statements.¹⁷⁷

What Ms Gobbo did when she read the first statement is the subject of some contention. Mr Thomas’ statement on the murder of Mr Paul Kallipolitis was taken by then Detective Senior Sergeant Boris Buick. Mr Buick knew about Ms Gobbo’s role in revising Mr McGrath’s statements and that she was a human source.¹⁷⁸ His day book noted ‘the [Thomas] statements are being checked by Ms Gobbo’.¹⁷⁹

A copy of the extract from Mr Buick’s day book was originally produced to the Commission. Counsel Assisting subsequently called for his original diary, which contained two significant Post-it notes not previously provided. One, in Mr Bateson’s handwriting, went to Ms Gobbo’s role:

Boris,

Here is the statement. It has some red pen on it. These alterations were made by Nicola last night. If you don’t have this format let me know and I will email to you.

Regards,

Stu.¹⁸⁰

Mr Bateson gave evidence that Ms Gobbo only made changes to grammar in Mr Thomas’ statements.¹⁸¹ Ms Gobbo later admitted to her handlers that she ‘amended some slightly’.¹⁸² She said to her handler that:

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

MR GREEN: Mm.

MS GOBBO: He could never reveal it ‘cause he doesn’t know about it. And they were very good the way they did it because the detective that I did it with is not a witness so it can never come out with people just telling the truth.¹⁸³

As outlined in Chapter 7, the Commission considers that Ms Gobbo’s admission, recorded by her handlers relatively contemporaneously, suggests that the changes were unlikely to have been limited to grammar. Furthermore, it seems that the Purana Taskforce held draft statements in both hard copy and electronic form, which were not disclosed to the defence when requested. It is also concerning that someone in Victoria Police appears to have removed a Post-it note referring to Ms Gobbo before copying Mr Buick’s diary extract and producing it to the Commission. It raises doubts as to whether Victoria Police has provided all relevant requested material to the Commission.

The views of Victoria Police officers

Victoria Police and some of its current and former officers submitted that Ms Gobbo always acted in Mr Thomas’ best interests, so that he received an outstandingly lenient sentence.¹⁸⁴ That suggests, despite the High Court decision, that they still may not understand their culpability. It is true that Mr Thomas was ultimately sentenced only for one murder and received a lenient sentence but he and those closest to him must live with the lifelong threat of deadly reprisal, irrespective of the favourable outcome.

A brief overview of the conduct of relevant Victoria Police officers and responsive submissions is set out below together with the Commission’s findings.

Mr Simon Overland

Between 2005 and 2007, Mr Overland was Assistant Commissioner, Crime¹⁸⁵ and then a Deputy Commissioner.¹⁸⁶ He oversaw the Purana Taskforce’s work as Chair of the Taskforce’s executive management team and was heavily involved in its work; was aware of Ms Gobbo’s representation of Mr McGrath;¹⁸⁷ knew she was providing information in relation to Operation Posse¹⁸⁸ and associates of Mr Tony Mokbel;¹⁸⁹ and was informed about police dealings with Mr Thomas.¹⁹⁰ He told the Commission that he appreciated the legal and ethical issues associated with Ms Gobbo’s use as a human source,¹⁹¹ and that he gave a strict direction that she could not continue to act for people if she was providing information about them.¹⁹²

Mr Overland’s responsive submissions disputed Counsel Assisting’s contentions, including that he knew Ms Gobbo was informing on Mr Thomas, that he should have ensured legal advice was obtained about disclosure and that he should have inquired into and discovered Ms Gobbo’s role.¹⁹³ He claimed Counsel Assisting ignored the legitimate role defence lawyers can and do play regarding prosecution witnesses.¹⁹⁴

For the reasons outlined in Counsel Assisting submissions, the Commission is satisfied that Mr Overland knew or should have known that Ms Gobbo was acting for Mr Thomas and that this required legal advice and the most expert management if it was to continue without interfering in the administration of justice.¹⁹⁵ Reasons include:

• Mr Overland’s interest in, and receipt of updates about, the work of the Purana Taskforce
• his knowledge of Mr Williams’ complaints about Ms Gobbo’s conflict in representing Mr Thomas¹⁹⁶
• his interest in Mr Thomas rolling.¹⁹⁷

Counsel Assisting submissions conceded that there is no direct evidence that Mr Overland was aware Ms Gobbo was informing on Mr Thomas.¹⁹⁸ They asserted with some cogency, however, that such awareness can be inferred; for example, because he knew that Mr Thomas’ lawyer was a human source serving the interests of the Purana Taskforce.¹⁹⁹

Ultimately, the Commission considers it unnecessary to determine whether Mr Overland knew the details of Ms Gobbo’s role as a human source informing on Mr Thomas—given he appreciated the risks posed by her use as a human source, he seems to have failed in his duty by leaving the management of these issues to the SDU. If legal advice was not to be obtained, he should have satisfied himself that Ms Gobbo’s use as a human source was being intensely supervised, to ensure that the risks to her safety and to Victoria Police and the administration of justice were minimised.

Mr Jim O’Brien

Mr O’Brien was the OIC of the Purana Taskforce from mid-September 2005.²⁰⁰ He knew that Ms Gobbo was acting for Mr Thomas²⁰¹ and was also a registered human source providing information to police about him, among other matters.²⁰²

In responsive submissions, Mr O’Brien stated he only became aware that Ms Gobbo was providing some information about Mr Thomas on or around 23 March 2006. He contended that, although she spoke to her handlers from time to time about Mr Thomas, this was generally not disseminated to Mr O’Brien, although there were three occasions when this did occur.²⁰³ Mr O’Brien conceded that this should not have happened.²⁰⁴ He submitted that his training in and understanding of disclosure obligations was limited and, as an Inspector, ensuring disclosure obligations were met was not his job; and further that the SDU was responsible for managing conflicts.²⁰⁵

The Commission accepts, as outlined in Counsel Assisting submissions, that Mr O’Brien received information about Mr Thomas originating from Ms Gobbo in February and March 2006.²⁰⁶ Despite Mr O’Brien’s contentions, the Commission is satisfied that given his experience, seniority and knowledge of Ms Gobbo’s role in relation to Mr Thomas, he should have either addressed or raised with a superior officer or colleagues in the relevant functional areas any risks and issues associated with Ms Gobbo’s conflicts of interest and with police compliance with their disclosure obligations.

Mr Gavan Ryan

Mr Ryan joined the Purana Taskforce as a Detective Senior Sergeant in 2003, and later rose to the rank of Detective Inspector.²⁰⁷ He was aware of Ms Gobbo’s role in relation to Mr McGrath’s statements,²⁰⁸ and by at least December 2005 that Ms Gobbo was a registered human source.²⁰⁹ In February 2006, he briefed Mr Overland, Mr O’Brien and Mr Horgan on the possibility that Mr Thomas may roll.²¹⁰ He was placed in charge of Mr Thomas when he decided to roll.²¹¹

In responsive submissions, Mr Ryan contended that it is not open for the Commission to find that Ms Gobbo made changes to Mr McGrath’s statements, or that he knew she had done so. He contended Ms Gobbo was not informing on Mr Thomas while acting for him, and if she was, he did not know. He also contended that police were not using Ms Gobbo to encourage Mr Thomas to plead, and that there is insufficient evidence to conclude Mr Ryan knew Ms Gobbo was so encouraging him if that were the case.²¹²

The Commission remains satisfied that given his knowledge of Ms Gobbo’s role in relation to Mr Thomas and Mr McGrath, his participation in briefing senior officers on those matters, the importance of Mr Thomas rolling to Purana Taskforce’s broader strategy, combined with his experience and senior, supervisory role within the Taskforce, Mr Ryan knew or should have known of the key events and risks relating to Victoria Police’s use and management of Ms Gobbo as a human source in relation to Mr Thomas.

Mr Stuart Bateson

Mr Bateson transferred to the Purana Taskforce from the Homicide Squad in October 2003. He reported to Mr Ryan, leading a crew of detectives initially focused on Mr Williams’ criminal enterprise, the Moran/Barbaro murders and the murder of other individuals including Mr Mark Moran.²¹³ He was aware that Ms Gobbo was a lawyer acting for Mr Thomas²¹⁴ and was a human source providing information about Mr Thomas.²¹⁵

Mr Bateson’s responsive submissions in relation to evidence he gave in 2004 and 2005 about Mr McGrath’s statements; barristers’ conflicts of interest; the ‘sanitising’ of notes; assurances given to Mr Thomas regarding Ms Gobbo’s honesty; and the provision of transcripts to Ms Gobbo; are dealt with above.

Mr Sandy White (a pseudonym) and officers of the Source Development Unit

Responsive submissions took issue with key elements of Counsel Assisting’s submissions. Former SDU officers submitted that Ms Gobbo acted as Mr Thomas’ lawyer and her intention was to get him the best possible sentence discount, which she achieved.²¹⁶ They also contended she was not ‘informing’ on Mr Thomas, but providing information to the SDU about her movement and activities relevant to her safety.²¹⁷ They asserted that providing the transcript of Purana Taskforce’s discussions with Mr Thomas to Ms Gobbo was only a matter of convenience in that their scheduled meeting with Ms Gobbo provided an opportunity to deliver the transcript. They also asserted there is no basis to find that Mr White was involved in or had knowledge of any efforts by police to encourage or allow Ms Gobbo to advise Mr Thomas to roll.²¹⁸

Counsel Assisting reply submissions set out further ways in which the SDU did not treat Ms Gobbo simply as Mr Thomas’ lawyer.²¹⁹

Summary of conduct

After considering the competing submissions and other evidence, the Commission has concluded that Victoria Police officers with knowledge of Ms Gobbo’s use and management as a human source, especially those with supervisory and leadership responsibilities, seem, in Mr Thomas’ case, to have failed in their obligation to take all necessary steps to ensure that:

• her use and management did not interfere with accused persons’ right to a fair trial
• where there was potential interference with that right, appropriate disclosure was made
• any PII claims were considered by the DPP, the VGSO and if necessary, a court.²²⁰

The Commission concludes that, between 16 September 2005 and around June 2007, Mr O’Brien, Mr Ryan and Mr Bateson from the Purana Taskforce, Mr Overland, who had ultimate responsibility for the Purana Taskforce, and Mr White, as head of the SDU, knew or should have known that:

• Ms Gobbo was a barrister and human source actively pursuing the Purana Taskforce
• she had, as Mr McGrath’s legal representative, encouraged him to refine his statements so that he appeared more truthful, with the effect of bolstering his credit as a witness, strengthening the police case, and improving his chances of a reduced sentence
• she was informing on Mr Thomas while purporting to act as his lawyer
• Mr Thomas was charged with murder and was facing a potential sentence of life imprisonment
• Mr Thomas was entitled to independent legal representation
• Ms Gobbo had a conflict of interest between her role as a human source for Victoria Police and legal representative of Mr Thomas
• she encouraged Mr Thomas to make admissions, enter a plea of guilty and implicate his associates, in circumstances where she was a police agent and Victoria Police used, or at least allowed, her to do this.

The Commission finds that, notwithstanding that the officers named above knew or should have known these matters, they allowed Ms Gobbo to represent Mr Thomas without obtaining legal advice to ensure the propriety of this approach.

The Commission considers that their conduct may have constituted:

• a breach of discipline under section 125 of the Victoria Police Act, or its predecessor, as conduct that was likely to bring Victoria Police into disrepute or diminish public confidence in it, or disgraceful or improper conduct, or negligent or careless conduct in the discharge of each of their duties; and/or
• misconduct under section 166 of the Victoria Police Act, as conduct that was likely to bring Victoria Police into disrepute or diminish public confidence in it, or disgraceful or improper conduct.

While the relevant conduct occurred before the commencement of the Victoria Police Act, the disciplinary and misconduct procedure under this Act seems to apply to any current Victoria Police officers who committed disciplinary offences under the former Police Regulation Act 1958 (Vic) but were not investigated under that Act.²²¹

Although these matters occurred more than a decade ago, it is critical that serving and future police officers have moral clarity about their duties and obligations as police officers. Abuses of those obligations, even in the context of extreme pressure from the community to solve dangerous crimes, cannot be tolerated. If detected, even years later, they will be exposed. The Commission recognises, however, that these officers’ actions must be viewed in the context of the admitted institutional responsibility of Victoria Police for the use of Ms Gobbo as a human source, and that they may have otherwise been of good character with impressive police service records.

Nonetheless, in Chapter 17 the Commission recommends the appointment of a Special Investigator to investigate these matters to determine if there is sufficient evidence to lay disciplinary charges against relevant serving police officers.

Case study: Mr Cooper (a pseudonym)

While there were elements of opportunism in Mr McGrath’s and Mr Thomas’ cooperation with police, in the case of Mr Cooper it was carefully planned. Figure 8.5 outlines the key Victoria Police officers involved in Mr Cooper’s case study.

Figure 8.5: Mr Cooper (a pseudonym) case study—key Victoria Police officers, 2003–09

In 2005, the Purana Taskforce began Operation Posse, which targeted the Mokbel crime syndicate. Ms Gobbo was central to Operation Posse’s plans, given her knowledge of and ability to provide intelligence about the Mokbels.²²²

In his evidence to the Commission, Mr O’Brien confirmed that Operation Posse’s investigation objective was to utilise information provided by human sources, including Ms Gobbo:

COUNSEL ASSISTING: The goal [of Operation Posse] is then identified as being the identification, investigation and complete dismantling of the Mokbel family criminal organisation?

MR O’BRIEN: That’s correct.

COUNSEL ASSISTING: … the objectives [of Operation Posse were] to utilise the continuing information provided by registered human sources?

MR O’BRIEN: Yes.

COUNSEL ASSISTING: Primarily that was Ms Gobbo in respect of Operation Posse, is that right?

MR O’BRIEN: Yes, some of the information, yes.

…

COUNSEL ASSISTING: One of the objectives was to use Ms Gobbo to achieve the goals of Operation Posse?

MR O’BRIEN: Yes.²²³

Additionally, a key step was targeting Mr Cooper’s activities in relation to Mr Mokbel.²²⁴

Victoria Police and Ms Gobbo repeated the now familiar pattern of conflicts of interest and non-disclosure, but this time Ms Gobbo was even more intimately involved in informing on her client, close friend and confidant, Mr Cooper. Officers put aside any misgivings at the prospect of rolling Mr Cooper and arresting the Mokbels, and it seemed a spectacular success. By mid-2006, Mr Cooper had provided over 40 statements that helped police to charge, and ultimately convict, 26 people.

The details of Mr Cooper’s case, outlined in Chapter 7, are only repeated here to the extent necessary to examine police conduct. In summary:

• Ms Gobbo acted as Mr Cooper’s lawyer at various times between 2002 and 2007 when he was facing various major drug manufacturing charges.²²⁵
• She began informing on him immediately upon her registration as a human source, stating at her first meeting with the SDU that he had enough information to bring down Mr Tony Mokbel.²²⁶
• At or around the time of her registration, police officers including Mr White and Mr Smith of the SDU, Mr Rowe and Mr Mansell of the MDID, and Mr O’Brien, Mr Rowe and Mr Dale Flynn of the Purana Taskforce, knew he was her ongoing client.²²⁷
• She provided the SDU, and through them Purana’s Operation Posse, with information about Mr Cooper’s background, circumstances and activities, including phone numbers, associates, places frequented, residential address and finances.²²⁸ The SDU tasked Ms Gobbo on Operation Posse’s behalf to obtain specific information from him,²²⁹ including his drug manufacturing activities.²³⁰ She told them about the types and amounts of chemicals used, profit margins and the dates of ‘cooks’. Much of the information was passed on to Operation Posse investigators.²³¹
• As she often did with clients, Ms Gobbo had a personal and social relationship with Mr Cooper. Her handlers exploited this and encouraged her to get even closer.²³² She organised a party for him and used a police camera to photograph attendees,²³³ identifying attendees for her handlers.²³⁴
• She provided insights into how police could get him to roll,²³⁵ such as targeting him financially,²³⁶ taking a ‘soft’ approach²³⁷ and making him think the Mokbels had been arrested.²³⁸ These tactics were passed on to Mr O’Brien of the Purana Taskforce.²³⁹
• She told police the location of Mr Cooper’s clandestine drug laboratory in Strathmore,²⁴⁰ leading to his arrest on a third set of serious charges and ultimately resulting in him becoming a prosecution witness.

The knowledge of senior officers

Senior officers learned of Ms Gobbo’s potential value to Operation Posse. On 26 September 2005, Mr Overland attended a weekly Purana Taskforce executive management meeting and recorded in his diary that Ms Gobbo needed to be very carefully managed, and that Mr Purton was to be fully involved.²⁴¹ The next day, Mr Purton updated Mr Overland on the information Ms Gobbo gave the SDU in her debriefing, including that Mr Cooper may ‘roll over’. They also discussed the investigation strategy and the need to ensure she was not compromised.²⁴²

Mr Overland received regular updates as Operation Posse focused more on Mr Cooper. On 19 April 2006, Mr Overland and Mr O’Brien spoke to the then DPP, Mr Paul Coghlan, QC, regarding the possibility of adjourning Mr Cooper’s guilty pleas for offences for which he was on bail. Mr Overland told Mr Coghlan this was part of a ‘much bigger picture’.²⁴³ This ‘bigger picture’ may have involved the tactic, discussed by Ms Gobbo and the SDU, to keep Mr Cooper on bail so that he could commit, and be arrested for, further serious drug offences, giving police greater leverage to roll him.²⁴⁴

Mr Cooper was arrested on 22 April 2006, based on information Ms Gobbo provided. Mr Overland was advised of Mr Cooper’s arrest within the hour.²⁴⁵

Even though Ms Gobbo and the SDU, with the encouragement of the Purana Taskforce under the supervision of Mr Overland, were knowing participants in this plan, no-one in Victoria Police obtained legal advice about its propriety. A likely conclusion is that they did not do so, not only because they wanted to protect Ms Gobbo’s identity and safety, but also because they feared legal advice might disrupt their plans.

Concerns about the propriety of Ms Gobbo continuing to act for Mr Cooper

From early on, SDU officers had concerns about issues of conflicts of interest and legal professional privilege, and suggested Ms Gobbo stop representing Mr Cooper. The following exchange on 28 October 2005 between the SDU and Ms Gobbo is illustrative:

MS GOBBO: So you—that’s why you don’t ask as a lawyer. I know you might say it’s turning a blind eye to it, but you don’t ask, and you specifically don’t let them tell you. The [Mr Cooper] thing is gunna cause me big drama, because I can ask him anything and he’ll tell me, but I don’t wanna know his stuff. I mean, I—it might be useful to you but I don’t wanna know it from the point of view of - - -

MR WHITE: Well, you could - - -

MS GOBBO: Pardon?

MR WHITE: - - - you could withdraw from representing him because ... of a conflict like that - - -

MS GOBBO: …

MR WHITE: - - - for the greater good of telling us.

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

MR PETER SMITH: Does he pay?

MS GOBBO: He actually does pay, yeah, his solicitor does. Mm.²⁴⁶

The SDU officers knew that Ms Gobbo could not act in Mr Cooper’s best interests as his lawyer while informing on him to police.²⁴⁷ What became equally clear was that Ms Gobbo had no intention of ceasing to act for him. Despite this legal and ethical maze, the SDU pressed on, perhaps keen to prove itself as an elite unit providing valuable intelligence needed to end the gangland wars and bring down the Mokbels.

The SDU officers’ concerns grew as Mr Cooper’s arrest drew closer. On 9 March 2006, the following exchange took place:

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

MS GOBBO: Yeah.

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

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

MR GREEN: How’s that going to work?

MS GOBBO: What do you mean?

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

MS GOBBO: What do you mean?

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

MS GOBBO: What conflict? He’ll be pleading guilty. What difference does it make? ²⁴⁸

Two days prior to Mr Cooper’s arrest, Ms Gobbo met with the SDU officers and confirmed he would call her for legal advice. Mr White asked, ‘how does that work … if you represent him whilst at the same time you’ve been instrumental in his apprehension?’²⁴⁹ Ms Gobbo thought it no ‘big deal’ as after all, neither she nor the SDU would tell Mr Cooper the truth. Mr White opined, ‘it’s more a problem for you than us’, before the following exchange:

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

MS GOBBO: Yeah.

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

MS GOBBO: Mm’hm.

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

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

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

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

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

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

MR WHITE: Forget it. I’m just - - -

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

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

MS GOBBO: The general ethics of all of this is fucked.²⁵⁰

Mr White, understandably concerned about the situation, wrongly stated the deception was more a problem for Ms Gobbo than for police.

In responsive submissions, former officers of the SDU asserted that this conversation was taken out of context;²⁵¹ however, as outlined in Chapter 7, the Commission considers that the above exchanges suggest that Ms Gobbo and her handlers knew that what they were doing was unethical and unprofessional but they were unwilling to stop.

The next day, the SDU briefed Mr O’Brien of the Purana Taskforce.²⁵² In responsive submissions, Mr O’Brien contended that the SDU did not raise with him the issues discussed with Ms Gobbo.²⁵³ Mr O’Brien submitted that the sole piece of evidence relied on by Counsel Assisting was a diary entry of Mr Smith indicating that Mr O’Brien had been updated about the conversation with Ms Gobbo.²⁵⁴ Additionally, he said that there was no other entry in his diary or the SML to corroborate this; that he was not made aware of the discussion; and that the SDU did not raise the issues with him more generally.²⁵⁵

Mr Cooper arrested and rolls with the assistance of Ms Gobbo

On 22 April 2006, Victoria Police arrested Mr Cooper at his Strathmore drug laboratory. The case against him appeared overwhelming and he was facing a very lengthy prison sentence.

Details surrounding Mr Cooper’s arrest relevant to police conduct included:

• Ms Gobbo had prior notice of the arrest and the SDU thought she would attend the police station to provide advice to Mr Cooper.
• After he arrived at the police station, Mr Flynn and then Detective Sergeant Jason Kelly facilitated his request to speak with Ms Gobbo.
• As she drove to the station, she asked her handler, with some hubris, ‘who’s next?’
• She met with Mr Cooper privately for over an hour and afterwards reported their conversation to her SDU handler.
• Mr O’Brien and Mr Flynn tried to convince Mr Cooper to cooperate. Ms Gobbo returned later that evening when he asked for his lawyer.
• According to Ms Gobbo, Mr Cooper became emotional, and for almost two hours, she and Mr Flynn encouraged him to cooperate with police. Once he agreed, he was interviewed by Mr Flynn and Mr Rowe from 9.00pm until about 11.30pm.
• Later that night, Ms Gobbo met her SDU handlers and said she ‘pushed him over the line’ and had also looked after his interests and asked why no-one was thanking her.²⁵⁶

The deception of Mr Cooper continued beyond his arrest, as police continued to investigate the Mokbel syndicate. While using Mr Cooper to gather evidence, they remained in contact with Ms Gobbo. She told them about her conversations with Mr Cooper and managed communications to prevent others learning that she had helped him roll.²⁵⁷ For the rest of the year, she helped keep him content to ensure his ongoing assistance to police. She described this as a ‘hand-holding’ process involving regular visits, phone calls and financial assistance.²⁵⁸ Mr Cooper told the Commission Ms Gobbo provided reassurance that he was doing the right thing and should see it through.²⁵⁹ They also discussed his statements, although Mr Cooper said Ms Gobbo did not influence their content.²⁶⁰

The views of Victoria Police officers

A brief overview of the views of relevant officers is set out below. The limitations around the Commission’s ability to resolve all contested matters identified in Mr Thomas’ case study also apply here.

Mr Simon Overland

Mr Overland told the Commission that while he was aware of the centrality of Mr Cooper and Ms Gobbo to Operation Posse, he did not believe he knew that Ms Gobbo was acting for Mr Cooper prior to his 22 April 2006 arrest.²⁶¹ More broadly, he said he believed Ms Gobbo was not informing in breach of her professional obligations.²⁶²

The Commission is satisfied, however, consistent with Counsel Assisting submissions, that sometime between September 2005 and March 2006, he knew, or should have known, that Ms Gobbo was both representing and informing on Mr Cooper.²⁶³

For example, Mr Overland knew of and permitted Ms Gobbo’s registration as a human source to target the Mokbel syndicate, knowing she represented several of its members, including Mr Tony Mokbel. He approved the Operation Posse investigation plan and was aware of the strategy to roll Mr Cooper.²⁶⁴ He was aware of the risks associated with a criminal defence barrister acting as a human source, stating that he told Mr Biggin to manage Ms Gobbo carefully and investigators to ensure she did not inform on clients.²⁶⁵ He was aware Ms Gobbo was informing on Mr Cooper.²⁶⁶ He oversaw and was closely engaged in the work of Purana Taskforce and Operation Posse, receiving regular briefings from officers who knew Ms Gobbo was informing on Mr Cooper while representing him.²⁶⁷

The Commission considers that, as Ms Gobbo’s use was a high risk to her safety and to Victoria Police and the administration of justice, having not obtained legal advice, it was incumbent upon Mr Overland to ensure that those very high risks were satisfactorily ameliorated. It seems unlikely that Mr Overland would have been so imprudent as to not keep abreast of Mr Cooper’s progress in becoming a prosecution witness, given the strategy adopted to use him and Ms Gobbo to dismantle the Mokbel syndicate.

Mr Jim O’Brien

From the time Mr O’Brien became the Purana Taskforce’s OIC in mid-September 2005, there was a significant focus on rolling Mr Cooper and the SDU gave Mr O’Brien information provided by Ms Gobbo.²⁶⁸ This continued during January to April 2006, when he was aware Ms Gobbo was both representing and informing on Mr Cooper.²⁶⁹ He was involved in the arrest of Mr Cooper on 22 April 2006 and in the events that followed at the police station.²⁷⁰

In responsive submissions, Mr O’Brien contended he did not identify a conflict in Ms Gobbo acting for Mr Cooper for previous offending while informing on him in relation to new offending.²⁷¹ He submitted that, while Purana Taskforce used background information provided by Ms Gobbo through the SDU, they did not want or need her advice on how to roll Mr Cooper,²⁷² and the deal police offered him was far better than the alternative.²⁷³ He also submitted that he did not know Ms Gobbo would, and did not task her to, advise Mr Cooper; and further, that while troubled by her attendance, he thought the ethical issues were hers to deal with.²⁷⁴

The Commission considers Mr O’Brien most likely knew or at least should have known of Ms Gobbo’s grave conflict issues in acting for, informing on, continuing to act for and continuing to inform on Mr Cooper. He was a very experienced detective, well versed in the fundamentals of the criminal justice system, who could be expected to have some understanding of conflicts.²⁷⁵ He would have known a lawyer informing on a current or former client was unique and there is evidence that more junior officers raised concerns with him.²⁷⁶

Mr Dale Flynn

Prior to commencing with Purana Taskforce in November 2005, Mr Flynn was a Detective Sergeant at the MDID,²⁷⁷ where he was involved in Mr Cooper’s earlier arrest and had dealings with Ms Gobbo as Mr Cooper’s lawyer.²⁷⁸ Mr Flynn was aware that Ms Gobbo was a human source and informing on Mr Cooper while acting for him.²⁷⁹ He was the investigation leader in Mr Cooper’s arrest on 22 April 2006.²⁸⁰ As outlined above, Mr Flynn was closely involved in events following Mr Cooper’s arrest. He knew that she had told police of the crime that led to his arrest.²⁸¹

In his evidence to the Commission, Mr Flynn, to his credit, accepted that Mr Cooper’s arrest could have been handled better and that mistakes were made. He described Ms Gobbo’s attendance at the police station on the afternoon and evening of 22 April 2006 as ‘complex’. He also agreed, at least with the benefit of hindsight, that he could and should have considered other courses of action: raising his concerns with Ms Gobbo, disclosing the matters directly to Mr Cooper, and raising the matter with superior officers or seeking legal advice.²⁸²

In responsive submissions, however, Mr Flynn asserted that:

• he was unaware the SDU officers and Ms Gobbo concluded the general ethics of the situation ‘were fucked’
• he understood the SDU would manage conflicts
• he could not tell Mr Cooper about Ms Gobbo’s status as this would have put her life at risk and violated the terms of her registration
• he could not interfere with Mr Cooper’s right to choose his own lawyer
• he complied with Victoria Police directions on protecting human sources.²⁸³

Some details around when Mr Flynn became aware that Ms Gobbo was a human source and when she was informing on Mr Cooper were contested. It was submitted that he did not understand the conflict issues, was not involved in a plan to have Ms Gobbo roll Mr Cooper, and lacked the training and experience to understand the seriousness of the situation as it unfolded or the options available. He also said that he reasonably placed faith in Ms Gobbo to adhere to her professional obligations, in the SDU to manage conflicts and filter intelligence, and in Mr O’Brien to provide assurance of propriety.²⁸⁴

While accepting there is some merit in these submissions, the Commission considers that, as Ms Gobbo’s use as a human source was so obviously improper, and her conflict so great, given his professional experience in the criminal justice system, Mr Flynn knew or should have known that Ms Gobbo was breaching her professional obligations and that Mr Cooper was not getting independent advice.

The Commission does not accept the submission that Mr Flynn could not refuse Mr Cooper’s request for Ms Gobbo as legal counsel,²⁸⁵ and could not undermine his superior, Mr O’Brien.²⁸⁶ Those matters certainly made his position more difficult, but given his rank, experience and knowledge of the extraordinary situation he was experiencing, he should not have encouraged or enabled Ms Gobbo to act as she did.

Mr Tony Biggin

Between 16 September 2005 and 22 April 2006, Mr Biggin was Superintendent, Covert Support Division. After 1 July 2006, the SDU reported to him.²⁸⁷ Mr Biggin learned Ms Gobbo was a human source around October 2005 and thought this was unusual.²⁸⁸ He suspected in early 2006 that Ms Gobbo was providing information about Mr Cooper.²⁸⁹ Mr Biggin attended the Strathmore drug laboratory when Mr Cooper was arrested²⁹⁰ and was later briefed at the police station by Mr O’Brien, Mr Ryan, and Mr Flynn.²⁹¹ He thought Ms Gobbo’s attendance was normal barrister–client contact, a view that he accepted was naïve.²⁹²

In responsive submissions, Mr Biggin contended that he knew very little about Ms Gobbo’s conduct in relation to Mr Cooper, did not know she was acting for him prior to his arrest, did not know she was providing information to police that led to his arrest, and had no appreciation of the conflict of interest that Ms Gobbo was in when she attended to provide advice to Mr Cooper on 22 April 2006.²⁹³ With the benefit of hindsight, Mr Biggin accepted that there was a potential for conflict associated with the use of a practising barrister as a human source with the clients and personal contacts Ms Gobbo had.²⁹⁴

The Commission considers that Mr Biggin was aware Ms Gobbo was acting for Mr Cooper for some months prior to Mr Cooper’s arrest on 22 April 2006.²⁹⁵ The Commission infers that Mr Biggin was probably aware that Ms Gobbo was providing information and/or assistance to Operation Posse in relation to Mr Cooper after his 16 February 2006 meeting with Mr Overland about the need to protect Ms Gobbo.²⁹⁶ In any case, from the time he conducted his SDU file audit (discussed below) on 27 April 2006, Mr Biggin should have been or made himself aware of Ms Gobbo’s extraordinary role as Mr Cooper’s legal representative and an agent for Victoria Police.

Mr Paul Rowe

Mr Rowe, then Detective Senior Constable in the MDID, was involved in August 2005 discussions with Ms Gobbo that led to her third registration as a human source. He knew Ms Gobbo was acting for Mr Cooper and informing on him from mid-September 2005.²⁹⁷ He, along with Mr Flynn, interviewed Mr Cooper on 22 April 2006 after he agreed to assist police,²⁹⁸ saw Ms Gobbo attend the police station to advise Mr Cooper²⁹⁹ and was involved in ongoing operations in the days after Mr Cooper’s arrest.³⁰⁰

In responsive submissions, Mr Rowe asserted that it is not open on the evidence to find that he understood Ms Gobbo’s conflict between her role as a human source and as Mr Cooper’s legal representative.³⁰¹

Mr Rowe was actively involved in the Cooper matter, but he was a relatively junior officer no doubt expecting guidance from his superior officers. Even so, he indicated he was aware of obvious risks, including risks of conflicts of interest, in using Ms Gobbo as a human source.³⁰² The Commission accepts that Mr Rowe understood that Ms Gobbo was in an impermissible position of conflict, but ignored it and instead prioritised the investigation of criminal offending as part of Operation Posse.

Officers of the Source Development Unit

Former SDU officers commonly asserted that they had a narrow understanding of conflicts of interest, in that they:

• understood Ms Gobbo should not act for people she had informed on, and discharged their obligations by telling her not to
• did not perceive that informing on current clients about ongoing criminal activity gave rise to a conflict of interest
• did not perceive a problem with Ms Gobbo informing on Mr Tony Mokbel while advising him on his federal charges, as they avoided legal professional privilege issues.³⁰³

Responsive submissions of the former SDU officers contended that they sought to understand these conflict issues by discussing them with Ms Gobbo.³⁰⁴ The Commission considers this was an unsatisfactory response. If these experienced officers were uncertain, they were obliged to seek proper advice from their superiors and informed independent lawyers, not from Ms Gobbo.³⁰⁵ This imperative became more compelling over time, as appreciation of the risks to the administration of justice must or should have grown.

It was submitted that officers did not want Ms Gobbo to advise Mr Cooper after his arrest but did not know how to stop her, and further, that they had raised their concerns about the admissibility of Mr Cooper’s confessions with investigators. In the SDU’s view, it was the investigators’ responsibility to determine whether Ms Gobbo would be allowed to see Mr Cooper.³⁰⁶ The SDU officers nevertheless asserted that they believed Ms Gobbo was acting in Mr Cooper’s interests in that he received the ’best deal of the century in terms of a sentence’.³⁰⁷

The Commission is satisfied that SDU officers, led by Mr White, knew from around the time of Mr Cooper’s 22 April 2006 arrest of Ms Gobbo’s involvement in it, and its potential impact on his and other convictions.³⁰⁸ They could and should have taken action to avoid these impacts.

The various roles of the SDU officers, and their knowledge of Ms Gobbo’s role acting for, and informing on, Mr Cooper, are set out in Box 8.1.

Summary of conduct

Counsel Assisting submitted that some police officers fell short of their obligations to take all necessary steps to ensure the proper use and management of Ms Gobbo in relation to Mr Cooper’s case.³¹⁹

On the evidence, the Commission finds that at various times between 16 September 2005 and 22 April 2006, Mr Overland, Mr O’Brien, Mr Flynn, Mr Biggin, Mr Rowe, and officers of the SDU, Mr White, Mr Smith, Mr Black, and Mr Green, knew or should have known that:

• Ms Gobbo was a criminal defence barrister and human source
• she was informing on Mr Cooper while purporting to act for him
• she had a conflict of interest between her role as a human source for Victoria Police and legal representative of Mr Cooper
• it was her informing on him that led to police obtaining evidence against Mr Cooper and arresting him on 22 April 2006
• Victoria Police used or allowed her to encourage Mr Cooper to implicate his associates.

The Commission finds that the conduct of each of the above current and former officers of Victoria Police may have constituted:

• a breach of discipline under section 125 of the Victoria Police Act, as conduct that was likely to bring Victoria Police into disrepute or diminish public confidence in it, or disgraceful or improper conduct, or negligent or careless conduct in the discharge of each of their duties; and/or
• misconduct under section 166 of the Victoria Police Act, as conduct that was likely to bring Victoria Police into disrepute or diminish public confidence in it, or disgraceful or improper conduct.

The Commission has noted the potential application of the Victoria Police Act to matters preceding its commencement and the importance for disciplinary matters to be investigated in the earlier section of this chapter dealing with Mr Thomas. The same observations apply in relation to officers involved with Mr Cooper.

Victoria Police’s understanding of risk

This section examines the evolving understanding within Victoria Police of the safety, ethical and administration of justice risks posed by the ongoing use and management of Ms Gobbo as a human source.

The problems with Ms Gobbo’s use as a human source became better understood and more widely known within Victoria Police over time. The conduct of police officers in the cases of Mr McGrath, Mr Thomas and Mr Cooper cannot be excused, but can to a degree be understood given the contextual factors at play early on, including:

• the pressure to solve the gangland wars
• an SDU eager to succeed
• a complex, enthusiastic and prolific human source
• an organisation that possibly lacked the skills to deal with the grave risks of using a human source like Ms Gobbo
• poor training and procedures around matters such as disclosure and conflicts of interest.

These excuses become less convincing as police became increasingly aware of the risks of using Ms Gobbo. They nonetheless persisted in their plan, without ensuring that they properly mitigated those risks.

Risks to safety

Safety concerns underpinned Victoria Police’s ‘golden rule’ to never reveal the identity of a human source.³²⁰ While protecting the identity of human sources is both legitimate and necessary, evidence before the Commission indicates that Victoria Police officers used the golden rule to justify not obtaining legal advice about using a criminal defence barrister as a human source, an extraordinary situation they knew or should have known to be problematic, and to justify not complying with their obligations to disclose relevant evidence to accused persons.

For Ms Gobbo, safety was critical to her becoming a human source. Initial police approaches followed threats against her.³²¹ Once registered, Ms Gobbo regularly reminded the SDU officers managing her of the risks she faced. At their first meeting, she raised the exemplary protection Purana Taskforce had provided in Mr McGrath’s case.³²² Later, when police action risked exposing her as a human source, she made comments such as, ‘I’ll kill myself now’ and ‘I don’t feel like being dead today’.³²³

Threats against Ms Gobbo escalate

The Victoria Police officers involved with Ms Gobbo knew that the risks to her safety were escalating as time went on.

In early May 2006, Ms Gobbo told the SDU that Mr Horty Mokbel grabbed her by the throat and accused her of being a human source. She thought Mr Mokbel was satisfied with her protests of innocence.³²⁴

From August 2006, Ms Gobbo told SDU handlers of concerns about Mr Williams and his wife, Ms Roberta Williams. These began when Mr Williams made complaints about Ms Gobbo representing Mr Thomas. She said that Mr and Ms Williams were accusing her of being a ‘dog’ and that they boasted they would harm her.³²⁵

On 7 December 2006, Ms Gobbo received, by text message, the first of 16 anonymous threats:

UR FUCKEN DEAD YOU PRO

U FUCKEN BITCH YOU MOLE U FUCKEN PROSTITUTE UR DEAD.³²⁶

In response, Mr Overland directed the Purana Taskforce to ask the SDU if she could be moved out of her role as a human source.³²⁷

Mr Ryan spoke with SDU officer, Mr White, who said he had already begun ‘easing her out’.³²⁸ Mr White advised Mr Ryan that the steps included no longer tasking Ms Gobbo or disseminating her intelligence, and starting a reward process.³²⁹ SDU officers noted Ms Gobbo’s health declining; she had lost 36 kilograms and they were trying to connect her with a psychologist.³³⁰ Nonetheless, they continued to receive information from her and pass it on to investigators.³³¹

Operation Gosford

In February 2007, Victoria Police established Operation Gosford to investigate continuing threats to Ms Gobbo,³³² and together with the SDU, put in place covert measures to protect her. Not all Gosford investigators knew of Ms Gobbo’s history as a human source. She continued receiving abusive texts; for example:

KEEP UR MOUTH SHUT SLUT. FUCKEN DOG

U Fucken Police Informing Dog Shut UR Fucken Mouth.³³³

Mr Ryan told the Commission that in around September 2007, he repeatedly suggested to the SDU that they deregister Ms Gobbo as a human source as he feared she would inevitably be murdered.³³⁴ In October 2007, she reported receiving a sympathy card addressed to ‘Dog Nicola Gobbo’ and containing two bullets and the message:

JUST FOR YOU DOG 1 IN THE HEAD 2 IN THE HEART YOU WONT SEE YOU BIRTHDAY NEXT MONTH

YOU KEEP TALKING TO THE PIGS.³³⁵

In March 2008, at lunch with Mr Domenic (Mick) Gatto and his associates, she learned of rumours, supposedly coming from Mr Williams and Mr Milad Mokbel, that she was a registered human source working for the Purana Taskforce. The following month, she reported that Mr Tony Mokbel had phoned a solicitor, ‘beside himself with anger’, asking if rumours that she was a ‘dog’ were true.³³⁶

Later that month, Ms Gobbo was out for dinner in South Melbourne when her car was fire-bombed.³³⁷ The SDU thought the Mokbels were responsible and that this presented an opportunity for her to sever ties with them. They did not, however, see it as an opportunity to deregister her as a human source.³³⁸ The SDU believed it was managing her exposure risks in upcoming court processes.³³⁹

The Commission is satisfied that the relevant SDU officers were genuinely concerned about Ms Gobbo’s safety but considers that their response to these concerns was wanting. They dealt with these rapidly escalating and concerning risks to Ms Gobbo’s safety through their ongoing risk assessments and mitigation practices consisting of ‘monthly source reviews’. There was no formal risk mitigation process established, aside from the recommendation arising from these reviews, which was generally to the effect that Ms Gobbo’s management continued to be essential.³⁴⁰

In responsive submissions, the former SDU officers asserted it was not Ms Gobbo’s registration as a human source that placed her in grave danger, but her associations with criminals. They noted that those who choose to become human sources necessarily place themselves in danger, and further, that Ms Gobbo’s failure to follow instructions contributed to the dangerous position she was in. They submitted that every significant incident relevant to risk was documented in the ICRs and summarised in the SML, and that the SDU provided Ms Gobbo with a panic alarm so they could monitor her location. They also submitted that, as Ms Gobbo was kept alive, the risk mitigation was not ‘lamentably inadequate’ as contended by Counsel Assisting’.³⁴¹

The failure to mitigate and assess risk

The Commission considers that the circumstances in which Victoria Police recruited, handled and managed Ms Gobbo as a human source placed her in grave danger of being murdered or seriously injured. The SDU’s approach to risk assessment and risk mitigation as evidenced by the formulaic entries in the monthly source reviews was inadequate in the circumstances.

The Commission acknowledges that Mr Overland had raised the prospect of an ‘exit strategy’ for Ms Gobbo with the SDU from May 2006 and revisited this when he learned of serious threats against her later that year. The Commission also appreciates that any overt police protection may have inflamed what were then only rumours of her informing.

Mr Overland’s position, however, that threats to Ms Gobbo were unfortunately not unusual, and in any case a matter for the SDU and Mr Moloney to manage,³⁴² appears most unsatisfactory, particularly after the arson attack on her car. While Mr Moloney undoubtedly had responsibilities for Ms Gobbo’s welfare, Mr Overland’s submissions must however take account of his July 2005 instruction that Mr Moloney would not be briefed on sensitive elements of Purana Taskforce investigations involving the SDU.³⁴³ As outlined in Chapter 9, this meant Mr Moloney was not briefed on various operational matters involving Ms Gobbo, including the way she was being used as a human source. With this came an increased responsibility for Mr Overland to manage known risks to Ms Gobbo.³⁴⁴

In the Commission’s view, Mr Overland’s reaction to Ms Gobbo’s safety after her car was set on fire appears inadequate; the incident should have been reported to the Chief Commissioner with a full briefing on Ms Gobbo’s use by Victoria Police as a human source.

Risks to the administration of justice

While several officers told the Commission that conflicts and other ethical dilemmas were Ms Gobbo’s to manage, they soon learned she was incapable of self-regulation.

Ms Gobbo persistently ignored SDU advice not to inform on past or present clients or represent those charged as a result of her earlier assistance to police. Examples include:

• The case of Mr Ketch (a pseudonym), whom she represented following his arrest by the Purana Taskforce, despite providing past and ongoing intelligence about him, which the SDU passed on to the Taskforce.³⁴⁵
• The ‘Tomato Tins’ drug syndicate cases, where she represented at least 10 of 33 persons charged with offences arising out of various police operations, in circumstances where she had provided information to Victoria Police about a number of them and the importation more broadly.³⁴⁶
• Mr Gatto, whom she represented at an examination while also providing information about him to the SDU.³⁴⁷

Ms Gobbo told the SDU that refusing to act for clients, given her connections with them and their associates, would arouse suspicion and could jeopardise her safety.³⁴⁸

In responsive submissions, SDU officers cited Ms Zaharoula Mokbel’s case to show they were limited in what they could do to prevent Ms Gobbo’s conflicts.³⁴⁹ Later in Ms Gobbo’s registration period, they said she was told that acting for certain people would be a ‘relationship ending event’.³⁵⁰ Mr White, in his responsive submissions, said that, in Ms Mokbel’s case, he could not threaten to expose Ms Gobbo as his overriding concern was to ensure she was not compromised and as a consequence, killed.³⁵¹

Ms Gobbo also spoke openly on more than one occasion with the SDU about breaching legal professional privilege and her unethical behaviour. In July 2006, Ms Gobbo told her handers and controller that ‘repeatedly I’ve chucked ethics out the window, I’ve chucked legal professional privilege out the window’.³⁵² Meeting with her handlers that same month, she said ‘Legal professional privilege between the crooks and me just went out the window’ and it ‘became too hard for me—not saying I can tell you this, but can’t tell you this …’.³⁵³

Time and again, conversations between Ms Gobbo and her handlers record the SDU protesting faintly and then accepting and acting on information she provided. Having failed to obtain the legal advice they should have at the outset, they then failed to ensure potentially privileged and confidential information was not acted on and was either destroyed or securely and separately stored. Consistent with their police oaths and affirmations, they should have taken firm steps to stop these ethical pitfalls and protect the administration of justice.

As noted above, prior to Mr Cooper’s arrest, Mr White asked Ms Gobbo whether a defence barrister could argue, ‘the advice he got prior to participating in the record of interview was not impartial because it was done on behalf of the police by a person that was acting for the police’. Ms Gobbo raised similar concerns with her handers in July of that year:

… I think, ‘God, if some clever barrister worked this out, what a field day they’d have.’ This would be an amazing test case.³⁵⁴

At an SDU meeting on 24 July 2006, Mr Black, one of Ms Gobbo’s many handlers, presciently wrote in his diary ‘Future 3838? v Royal Commission’.³⁵⁵ In his evidence to this Commission, Mr Black said that around this time there were public calls, unrelated to Ms Gobbo, for a royal commission into alleged Victoria Police corruption.³⁵⁶ He could not recall whether he spoke specifically about a royal commission or just an inquiry of some sort, but he may have said ‘this will be subject to a review’³⁵⁷ to investigate allegations of improper conduct, particularly about Mr Cooper.³⁵⁸

In responsive submissions, the former SDU officers contended that there is no basis to suggest that they were aware of improper behaviour warranting a royal commission.³⁵⁹ The only mention of a royal commission was in Mr Black’s diary entry. Mr Richards (a pseudonym) told the Commission it was ‘totally incorrect’ to suggest that there was a consciousness among the SDU officers that they had been doing the wrong thing in the way they were managing Ms Gobbo.³⁶⁰ Additionally, Mr Black said that he had raised the possibility of a ‘review’ but had not necessarily verbalised the words ‘royal commission’.³⁶¹

Given that memories are fallible and that this conversation occurred more than a decade ago, the Commission places considerable weight on Mr Black’s contemporaneous diary note. The SDU officers were thorough and largely accurate record keepers. The Commission also notes the collegiality of the SDU and their willingness to frankly share and discuss challenges, opportunities, concerns and problems with each other.³⁶²

On the basis of Mr Black’s note and his generally supportive recollection, the Commission finds it probable that the SDU discussed the possibility of a royal commission arising from Ms Gobbo continuing to represent clients while informing on them, especially Mr Cooper. Consequently, the Commission is satisfied that SDU officers who attended the meeting on 24 July 2006 likely knew, at least from this date, that Victoria Police’s use of Ms Gobbo as a human source may involve impropriety of sufficient magnitude to warrant a royal commission, or other review.

The following exchange on 3 July 2007 between Ms Gobbo and her controller in relation to the Tomato Tins drug syndicate cases demonstrates the SDU’s growing appreciation of and concern about risks to the administration of justice:

MR WHITE: All right. It’s really important for all of us that you don’t represent anyone.

MS GOBBO: Mm.

MR WHITE: I’d hate to think that ultimately a conviction could be overturned because there was an allegation or suggestion or a bloody inquiry in relation to whether he got completely unbiased uncompromised defence.

MS GOBBO: Who’s ever going to know about that?

MR WHITE: Well - - -

MS GOBBO: And there’s already 20 people in that category.

MR WHITE: I know, I know.

MS GOBBO: Sorry.

MR WHITE: Don’t think we haven’t thought about this day in and day out.³⁶³

In late 2008, the SDU officers, with the endorsement of their superior officers, documented risks associated with a plan to transition Ms Gobbo to become a witness in the Hodson murders case. The resulting strengths, weaknesses, opportunities, threats (SWOT) analysis³⁶⁴ is discussed in detail below, but identified risks including that:

• Ms Gobbo’s long-term relationship with Victoria Police as a human source would be exposed
• there could be an OPI or government review into the legal and/or ethical implications of having used Ms Gobbo, a serving barrister, as a human source
• successful appeals could overturn convictions.³⁶⁵

There is some contention around the fate of the SWOT analysis. It is sufficient to note that the Commission is satisfied that Mr Overland received, read and spoke to it at least at a high level at the Petra Taskforce Board of Management meeting of 5 January 2009.

The issues in the SWOT analysis were again raised with senior officers later in 2009, when there was interest in Ms Gobbo becoming a witness for the Briars Taskforce investigating the murder of Mr Shane Chartres-Abbott (the Chartres-Abbott murder).

It was not until 2011, however, that Victoria Police’s attention was unavoidably drawn to the risks posed to the administration of justice by Ms Gobbo’s use as a human source. As outlined below, Victoria Police obtained legal advice from barrister Mr Gerard Maguire stating that elements of Ms Gobbo’s history as a human source may not be protected by PII, and if so they may need to be disclosed.³⁶⁶ Critically, it advised that if others, such as Mr Tony Mokbel, became aware of her past role, they might challenge their convictions on the basis they were unlawfully obtained.³⁶⁷

Victoria Police was from this point on notice about the significant risks to the administration of justice created by the organisation’s use of Ms Gobbo as a human source.

Missed opportunities

From 2006, there was a series of missed opportunities for Victoria Police officers to take steps to remedy the increasing risks presented by its use of Ms Gobbo as a human source. These are discussed below.

The audits of Ms Gobbo’s human source file

Audits undertaken by Mr Biggin and then Superintendent Lucinda Nolan in 2006 were a missed opportunity for Victoria Police to take control of Ms Gobbo’s use as a human source.

On or around 19 April 2006, then Commander Dannye Moloney directed Mr Biggin to audit Ms Gobbo’s human source file.³⁶⁸ Mr Biggin was well-placed to do this, given his knowledge of the human source management reform work preceding the SDU’s establishment.³⁶⁹ He also knew Ms Gobbo from his MDID experience³⁷⁰ and was aware she was a human source.³⁷¹

There was uncertainty around the audit’s purpose. Mr White thought it was to provide independent oversight of Ms Gobbo’s management, including whether she was ‘too high risk’.³⁷² Mr Biggin considered it a ‘broad overviewing audit’ rather than a full audit of the human source file.³⁷³

Mr Biggin conducted the audit on 27 April 2006. He spoke to Ms Gobbo’s controller and handlers and prepared a report recommending that Victoria Police continue its relationship with Ms Gobbo, whom he described as a ‘valuable asset’ who continued to provide ‘excellent information’ with ‘successful outcomes’.³⁷⁴ He observed that Ms Gobbo’s profile was a risk to her and Victoria Police; that the initial purpose of her assistance to police had been achieved; that her further deployment would need to be carefully planned; and that the number of people within Victoria Police aware of her status was concerning.³⁷⁵

Mr Biggin told the Commission that he was not aware Ms Gobbo was providing information about Mr Cooper or other serious criminal activity until he conducted his audit.³⁷⁶ This was despite knowing she was a human source, his awareness of Operation Posse, the thought having crossed his mind that she may have been providing information used by Operation Posse, and his discussion with Mr Overland about the need to protect Ms Gobbo.³⁷⁷ Mr Biggin conceded that he should have recommended obtaining legal advice about Ms Gobbo’s use as a human source.³⁷⁸

In responsive submissions, Mr Biggin reiterated that there was no evidence to demonstrate he was alive to the issues associated with the use of a defence barrister as a human source, or that he knew Ms Gobbo was providing information to Operation Posse, leading to Mr Cooper’s arrest. He submitted that his mistake, in not obtaining legal advice, was an honest one.³⁷⁹

In conducting his audit, Mr Biggin should have identified the extremely high risk of impropriety arising from Victoria Police’s use of Ms Gobbo, a criminal defence barrister, as a human source, and recommended that legal advice be urgently sought on this matter as a first step in understanding the propriety of the situation. The failure to do so was one of many lost opportunities to obtain informed legal advice about this extraordinary situation.

A month later, Ms Nolan was directed to conduct a ‘procedural, ethical and value for money’ audit of human source files at the SDU.³⁸⁰ Ms Nolan’s audit report on ‘File 3838’ stated, ‘Audit completed by Superintendent Biggin’.³⁸¹ It is curious that only one file—Ms Gobbo’s—was excluded from Ms Nolan’s audit. Both Mr Moloney and Mr Biggin rejected any suggestion that they attempted to conceal the file from her.³⁸² Perhaps it was nothing more sinister than an attempt to limit the number of people aware of Ms Gobbo’s use as a human source so as to protect her safety. Had Ms Nolan discovered 3838’s identity, occupation and activities, she should have identified the extreme risk and need for urgent legal advice. Whatever the reason for excluding Ms Gobbo’s file from her audit, this was another significant missed opportunity to remedy the situation.

Deactivation strategy

As noted above, when Ms Gobbo received death threats in late 2006, Mr White told the Purana Taskforce that processes were in train to ‘ease out’ Ms Gobbo.³⁸³ A monthly source review prepared by the SDU and dated 5 March 2007 recorded Ms Gobbo’s frustration at not being tasked,³⁸⁴ but Mr Biggin and the SDU were intent on deregistering her.³⁸⁵ As part of this process, the SDU and Mr O’Brien hosted a dinner in her honour on 2 May 2007 and presented her with a silver pen for her assistance to the Purana Taskforce.³⁸⁶ The SDU sought advice on her exit plan from a psychologist.³⁸⁷

As the SDU was urging deactivation, both the Petra and Briars Taskforces showed a growing interest in Ms Gobbo. The Petra Taskforce’s interest was twofold; it considered she was valuable both as a witness with potential to corroborate Mr Williams’ statement implicating former police officer, Mr Paul Dale, in the Hodson murders; and as a person of interest possibly involved in disseminating leaked police documents to Mr Tony Mokbel, thought to be connected to the murders.³⁸⁸ Briars Taskforce investigators were interested in Ms Gobbo’s association with former Victoria Police officer Mr David Waters, believing she could assist them with the Chartres-Abbott murder investigation.³⁸⁹

Mr Biggin and Mr White discussed deactivating Ms Gobbo as a human source further with Mr Overland³⁹⁰ but by the 28 May 2007 monthly source review, the SDU’s planned and partially implemented exit strategy was off the table.³⁹¹

Ms Gobbo continued to provide intelligence that the SDU officers felt they could not ignore. On 5 June 2007, she gave her handlers documents entrusted to her by her client, Mr Rabie (Rob) Karam. As discussed in Chapter 7, these documents related to a shipping container of canned tomatoes holding what was then the world’s largest importation of ecstasy.³⁹² Ms Gobbo was also getting closer to Mr Gatto, upon whom the Purana Taskforce was focusing increasing attention.³⁹³

Abandoning the SDU’s deactivation strategy to continue capitalising on the information held and provided by Ms Gobbo was another missed opportunity for Victoria Police.

Absence of legal advice

On 17 July 2007, Mr O’Brien provided a Purana Taskforce briefing to Mr Overland, Mr Blayney and another officer. Mr Blayney raised the need to seek legal advice on the use of Ms Gobbo as a human source.³⁹⁴ Extraordinarily, on the evidence before the Commission, this was the first time a senior officer considered seeking such advice.

Mr Blayney told the Commission that over time, he realised that Ms Gobbo was ‘3838’ and was becoming more concerned about the legal complexities arising from her use as a human source. He considered it could potentially corrupt the court system, with tainted evidence resulting in unfairness to accused persons.³⁹⁵ He raised the need for legal advice in an effort to understand whether anything needed to be done to address such issues.³⁹⁶

On 24 July 2007, representatives of the SDU and the Crime Department met to discuss Mr Blayney’s query about legal advice. Mr Blayney’s notes of the meeting included, ‘Legal issues—considered not appropriate at this stage—poss explore precedents’.³⁹⁷ Mr Biggin’s notes also included, ‘Legal opinion from Judge’.³⁹⁸ In his notes, Mr White wrote, ‘Agreed value of HS as source is outweighed by repercussions and risk to same’ and agreed in his evidence to the Commission that the need for legal advice would have been discussed.³⁹⁹ Mr Overland recalled, without the benefit of notes, that he saw little point in hypothetical advice and that any issues would be addressed via normal discovery processes (that is, the prosecution’s pre-trial disclosure duties).⁴⁰⁰

Mr Blayney told the Commission that he walked away from that meeting with the view that legal advice had been obtained and the SDU was acting in accordance with it in relation to Ms Gobbo’s management, although he could not recall whether he was told this or inferred it from the SDU’s briefing on risk management.⁴⁰¹

The Commission is satisfied that the decision at the meeting on 24 July 2007 not to obtain legal advice, given that those who attended likely discussed concerns about the legality, propriety and consequences of Ms Gobbo’s use as a human source, was another missed opportunity for Victoria Police and those officers to rectify past wrongs and avoid future ones. Such legal advice could have been readily obtained within Victoria Police or through the VGSO.⁴⁰²

The Commission was told the reluctance to seek legal advice was, at least in part, because Victoria Police feared that lawyers giving advice might gossip, revealing Ms Gobbo as a human source and jeopardising her safety.⁴⁰³ The Commission accepts that this was certainly a factor. Another real possibility is that those within Victoria Police who decided not to get legal advice feared it might bring unwelcome news. On the available evidence, however, it is not possible to reach a concluded view on this matter.

Operation Khadi and the Office of Police Integrity

On 5 June 2006, Mr Thomas (Luke) Cornelius, APM, then Assistant Commissioner at the Ethical Standards Department (ESD), and Mr Ashton, then Assistant Director at the OPI, signed a joint agency agreement related to Operation Khadi, established to investigate misconduct allegations at Brighton Police Station.⁴⁰⁴ Ms Gobbo had several connections to Operation Khadi; she had associations with targets and made allegations of theft from a client against an officer based at Brighton.⁴⁰⁵

Operation Khadi investigators planned to summons Ms Gobbo to give evidence in an OPI examination and to monitor her phone calls to obtain more information.⁴⁰⁶ The OPI had already planned to examine her about the 2004 Hodson murders, discussed below.⁴⁰⁷

The telephone intercept applications needed approval from officers including Mr Biggin. As Ms Gobbo was a human source, he told investigators to talk to Mr Overland or Mr Moloney before taking this further.⁴⁰⁸

The details related to these events are contentious. On 6 June 2006, Mr Cornelius and Mr Overland met with Superintendent Phillip Masters (responsible for the ESD surveillance) and Detective Superintendent Rodney (Rod) Wilson, also from the ESD. Evidence before the Commission—including Mr Wilson’s and Mr Master’s diary entries and information conveyed to and recorded by Mr White at the SDU—suggests that Mr Overland told them Ms Gobbo was a human source and they discussed whether they would have her examined by the OPI.⁴⁰⁹

Mr Cornelius accepted that the meeting took place and Ms Gobbo’s planned appearance before the OPI may have been discussed, but was adamant that he was not told she was a human source.⁴¹⁰ Mr Cornelius said this would have struck him as extraordinary and he would have appreciated the implications.⁴¹¹ The diary entries suggesting otherwise, he believed, conflated two meetings; the first involving him and relating to the OPI examination, and the second where Mr Overland told Mr Wilson that Ms Gobbo was a human source.⁴¹²

In responsive submissions, Mr Cornelius rejected the accuracy of the contemporaneous written records. He suggested it was speculative of Counsel Assisting in their submissions to infer that an entry by Mr Masters on 6 June 2006 at 7.30 am, which recorded that he spoke to Mr Cornelius about ‘problems’ with Operation Khadi, referred to Ms Gobbo.⁴¹³ Additionally, it was submitted that the written records of the meeting were inaccurate, and Mr Wilson’s diary entry ‘created a cascade of incorrect records that created an assumption that [Mr] Cornelius knew the extent of Ms Gobbo’s informer status’.⁴¹⁴ Mr Cornelius emphasised his evidence about the possible conflation of two conversations⁴¹⁵ and noted Mr Wilson’s evidence that he remembered Mr Overland briefing him separately about Ms Gobbo being a human source.⁴¹⁶ He also rejected Mr White’s entry in the SML and his diary.⁴¹⁷ Mr Wilson recalled that he was the only one present when Mr Overland told him that Ms Gobbo was a human source.⁴¹⁸

Given the passage of time and the vagaries of memory, the Commission places greater weight on contemporaneous written records than on contrary unsupported recollections, even Mr Cornelius’ adamant assertions about the diary notes. After carefully considering all the evidence and his submissions, however, the Commission considers that, given the written records, it was more likely his memory and evidence was coloured by hindsight and that he inaccurately reconstructed the events of 6 June 2006 to explain his failure to seek legal advice at this time.

The Commission finds that it is more probable than not that Mr Overland made plain to all present at the meeting on 6 June 2006, including Mr Cornelius and Mr Masters, that Ms Gobbo was a human source for Victoria Police.

At around this time, the SDU assured a distressed Ms Gobbo they were trying to ‘head off’ her being questioned at an OPI examination.⁴¹⁹ As a first step, Mr Swindells (then at ESD) and his colleague, Inspector Lindsay Attrill, were to interview her about matters of interest to investigators.⁴²⁰ In arranging this, Mr White provided Mr Wilson and Mr Attrill intelligence provided by Ms Gobbo, including confidential and privileged information provided by her client, Mr Azzam (Adam) Ahmed.⁴²¹

OPI investigators did not want the ESD to meet with Ms Gobbo, as it would remove the element of surprise in their planned examination.⁴²² An agreed list of questions was settled as a compromise, and the meeting took place on 24 July 2006. Ms Gobbo told ESD that in providing them with information obtained as a result of her acting for Mr Ahmed, she had ‘thrown privilege out the door’.⁴²³ In his statement to the Commission, Mr Attrill said he believed that he and Mr Swindells discussed the problem of her providing privileged material with Mr Wilson and that this was one of the reasons why the ESD investigation should have had nothing more to do with Ms Gobbo. In his evidence to the Commission, Mr Wilson agreed that Ms Gobbo providing privileged information to ESD should have rang some alarm bells.⁴²⁴

Mr Attrill and Mr Wilson submitted that the information Ms Gobbo provided about Mr Ahmed was neither confidential nor privileged.⁴²⁵ Mr Wilson also submitted that there was no evidence that Mr Attrill raised concerns about legal professional privilege with him, and rather, that the concerns raised by Mr Attrill and the reason the ESD decided to withdraw her from the investigation related to safety concerns, as set out in the information report (IR) submitted by Mr Attrill.⁴²⁶

Mr Wilson was then a Superintendent in the ESD. Once aware that Ms Gobbo may have been passing on information from her clients to police that was, at least arguably, confidential or privileged, he should have sought legal advice or at least taken steps to ensure that all police officers, including the SDU and investigators, were properly supervised so that they did not use the information in potentially improper, unlawful or unethical ways. This was another significant missed opportunity.

Mr Biggin told Mr White on 26 July 2006 that he had spoken with Mr Overland, who said he would talk to Mr Ashton the following day to request that the OPI take no further action in relation to Ms Gobbo as part of Operation Khadi.⁴²⁷ Again, Mr Wilson’s and Mr White’s contemporaneous diary notes conflict with Mr Cornelius’ recollection as to whether he was briefed on this approach.⁴²⁸ Again, the Commission prefers the written record, which is also consistent with Ms Gobbo’s having no further involvement in Operation Khadi.

On 27 July 2006, Mr Overland and Mr Cornelius met with Mr Ashton. Neither Mr Overland nor Mr Cornelius made any diary entries or other records. Mr Ashton’s notes only recorded information about another operation, Operation Air. In evidence to the Commission, Mr Ashton said this suggested that other matters such as Operation Khadi were not discussed, a view that he put more forcefully in his responsive submissions, where he also contended that he did not have the authority to unilaterally determine whether to call Ms Gobbo to an OPI hearing.⁴²⁹

Mr Ashton also indicated that he could not recall Mr Overland telling him that Ms Gobbo was a human source.⁴³⁰ But nor could he explain why, after this point, Ms Gobbo was no longer a focus of Operation Khadi.⁴³¹ Mr Cornelius’ memory accorded with Mr Ashton’s—Operation Khadi was not discussed, and Mr Overland did not disclose Ms Gobbo’s status as a human source.⁴³² Mr Overland could not recollect any details, but said that if he did raise with Mr Ashton the possibility of OPI not examining Ms Gobbo, it would have been on the basis that it was a matter for the OPI to determine.⁴³³

Submissions made on behalf of Mr Cornelius contended that Counsel Assisting, in their submissions, ignored several pieces of key evidence to assert that Mr Cornelius became aware of Ms Gobbo’s status as a human source during Operation Khadi. Submissions pointed to other evidence, such as Mr Ashton’s diary entry of the meeting, which referred only to Operation Air and not to either Operation Khadi or the OPI hearings; and Mr Ashton’s evidence to the Commission that this entry was a complete record of the topics discussed at the meeting.⁴³⁴

Notwithstanding this evidence, and taking into account Counsel Assisting reply submissions, the Commission considers it probable, given Mr Overland’s and Mr Cornelius’ debriefings to their teams and subsequent actions at the time, that it was agreed or understood at the meeting that Ms Gobbo would not be examined by the OPI in relation to Operation Khadi, given her status as a human source, but would be examined in relation to the Hodson murders.⁴³⁵ The SDU promptly informed Ms Gobbo that she would not be further involved in Operation Khadi, and she was neither examined nor asked to provide a statement.⁴³⁶ The Commission notes, however, that the OPI’s 2007 Operation Khadi report mentioned Ms Gobbo’s name over 100 times and she seemed relevant to many areas of the investigation.⁴³⁷

As explained earlier, the Commission found that Mr Cornelius probably became aware that Ms Gobbo was a human source for Victoria Police in June 2006. The Commission considers Mr Cornelius’ submissions regarding his knowledge of the extent of Ms Gobbo’s informing are misconceived. As Assistant Commissioner, ESD, Mr Cornelius should have insisted on Victoria Police obtaining legal advice and implementing measures to ensure that its use of Ms Gobbo as a human source, and disclosures about it, were ethical and lawful.

The Commission also finds it troubling that Victoria Police’s intervention in this matter may have hampered the OPI’s independent investigation of the matters arising in Operation Khadi—matters in which Ms Gobbo appears to have been an active protagonist. The OPI decision not to examine Ms Gobbo also represented a missed opportunity to scrutinise her role as a human source, understand the arising ethical and legal implications, remedy any past improprieties and damage to the criminal justice system, and prevent future damage.

Inadequate disclosure

As discussed in Chapters 5, 7 and 14 of this final report, in criminal proceedings, police—as part of the prosecution—have a duty to disclose relevant information to prosecuting authorities and the accused person. This includes information that may undermine the prosecution case or help the accused person. The duty of disclosure is well-established in common law and legislation and it is both a standard and enduring feature of criminal prosecutions and essential to an accused person’s right to a fair trial.

In certain circumstances, such as when material relevant to an accused person’s case is subject to PII, it does not have to be disclosed. Typically, though not always, the use of a human source in an investigation to obtain evidence against an accused person will be subject to PII. This is sometimes referred to as ‘informer privilege’. Informer privilege, however, is not absolute. Whether information about a human source is disclosed to an accused person will depend on a balancing of public interests; that is, whether the public interest in keeping the human source’s identity confidential in a particular circumstance outweighs other important public interests (for example, the public interest in disclosing all relevant evidence to the accused person as part of their right to a fair trial). While police can make PII claims, these can only be determined by a court. It is the court’s role, not that of police, to decide whether certain information relevant to an accused person’s case can be withheld from them.

Victoria Police’s failure to adequately meet its disclosure obligations was critical to concealing Ms Gobbo’s status as a human source for so long.

Had Victoria Police met these obligations, Ms Gobbo’s career as a human source would likely have been limited in time and scope. Full and proper disclosure to:

• Ms Gobbo’s clients would likely have caused them to seek new, independent legal advice—this was the unequivocal evidence of one such client, Mr Cooper, to the Commission
• Victoria Police legal advisers would have resulted in advice reflecting that provided by Mr Maguire in 2011, or the VGSO in 2012, as to the need for disclosure
• the DPP would have prompted the obtaining of legal advice and disclosure to convicted or accused persons and the courts, or the withdrawal of prosecutions
• the court would have likely resulted in disclosure to accused persons or the withdrawal of prosecutions or permanent stays of prosecution.

Victoria Police officers’ knowledge of disclosure obligations

In Chapter 9, the Commission acknowledges that Victoria Police officers were let down by inadequate training and procedures about their disclosure obligations and PII claims. But that does not absolve officers from personal responsibility. All officers, especially those with direct responsibility or senior and experienced ones involved in the management, use and oversight of Ms Gobbo, should have appreciated her status and conduct as a human source was disclosable, or at the very least required legal advice, given the extraordinary circumstances. In many cases:

• there was an inherent conflict of interest between Ms Gobbo’s role as a criminal defence barrister and human source for Victoria Police
• Ms Gobbo informed on those she represented, acting as an agent for Victoria Police rather than as an independent legal adviser
• Ms Gobbo encouraged and assisted her clients to roll and become prosecution witnesses, keeping her conduct secret although this information would have materially assisted their defence
• when Ms Gobbo became a prosecution witness, her role and conduct as a human source was disclosable as it was relevant to her credit.

The case studies below exemplify police failures in adequately meeting their disclosure obligations in matters associated with Ms Gobbo.

Case study: Mr Cooper (a pseudonym) as a prosecution witness

Mr Horty Mokbel was arrested on 13 April 2007 on serious drug charges emanating from Operation Posse. He was committed for trial alongside Mr Toreq Bayeh (Mokbel/Bayeh case). The trial took place in September 2008; with Mr Cooper a witness against them. In the lead up to the trial, two defence subpoenas required the Chief Commissioner to produce documents relating to Mr Cooper.⁴³⁸

The way Victoria Police handled these subpoenas is instructive. Victoria Police officers avoided disclosing material they knew, or should have known, was relevant to the defence. They did this first by agreeing to narrow the scope of subpoenas with defence counsel, steering them away from relevant matters and not informing them of key information, and second by ‘sanitising’ notes so the defence could not know relevant facts and where PII claims were in court, not presenting the full facts.

The first subpoena: 12 August 2008

As the police officers involved knew or should have known, the defence was seeking material surrounding any offers, promises, benefits or inducements to Mr Cooper that might cast doubt on his credibility as witness or the propriety of the police investigation.⁴³⁹ Subject to argument about the breadth of the subpoenas or about PII claims over relevant material,⁴⁴⁰ Victoria Police should have produced notes and other materials that would have made clear that Ms Gobbo’s involvement with Mr Cooper was not simply as Mr Cooper’s independent legal adviser.

This did not occur. Instead, Mr Flynn and Detective Senior Constable Tim Johns obtained defence counsel’s agreement to narrow the documentation sought under the subpoena. Mr Flynn’s notes of discussions with defence lawyers suggest they only sought records of meetings not already provided and unedited transcripts of Mr Cooper’s interviews.⁴⁴¹ Mr Johns spoke to them to clarify exactly what they wanted; they stated they were ‘happy with full transcript of interview with Mr Cooper’.⁴⁴² Mr Johns told the Commission that, while he did not have a specific memory, he was of the view he told defence counsel that there was a lot of other potentially relevant material that would answer the subpoena but he could not provide it before the trial.⁴⁴³

It also seems likely that the defence obtained versions of Mr Flynn’s notes of the night of Mr Cooper’s arrest that were ‘sanitised’ so that they did not reveal the full picture, while his notes from a 14 May 2006 meeting, at which both Ms Gobbo and Mr Cooper were present, would have revealed her duplicitous role and were not produced at all.⁴⁴⁴

Responsive submissions asserted that the evidence does not support a finding that Victoria Police should have produced further materials to the court in response to the subpoena⁴⁴⁵, nor that Mr Flynn and Mr Johns acted improperly in securing this agreement,⁴⁴⁶ noting that the narrowing of very broad subpoenas was common practice at the time.⁴⁴⁷

It was also asserted that Mr Flynn did not have improper motives;⁴⁴⁸ he acted so as to not reveal Ms Gobbo’s identity as this was consistent with his training and experience, and with the culture within Victoria Police at the time around not revealing the identity of human sources.⁴⁴⁹ It was submitted that should not be held responsible for adopting the approach he did, as his training and understanding of this issue was the fault of the broader organisation.⁴⁵⁰

On the evidence before the Commission, it is not possible to definitively determine the individual motivations of the various Victoria Police officers in not making proper disclosure. Protecting the safety of Ms Gobbo as a human source was certainly one motive. A lack of training in, and understanding of, their disclosure obligations was also a contributing factor. Another factor may well have been to prevent adverse consequences to pending, current and past prosecutions and to avoid criticism of officers of Victoria Police should their conduct with Ms Gobbo be revealed.

The Commission considers that in response to the 12 August 2008 subpoena, Victoria Police should have produced all relevant notes that revealed communications concerning Ms Gobbo between Mr Flynn and Mr Cooper in the days following the arrest on 22 April 2006. If Victoria Police wished to claim PII, it should have provided all relevant information to the court for determination of any claims. Instead, the investigators, with the assistance of the SDU, improperly redacted notes and ‘agreed’ with defence lawyers to limit the production of materials without informing them of all relevant materials.

The second subpoena: 1 September 2008

The second subpoena sought ‘all information and reports relating to or touching upon [Mr Cooper] and his activities in the period of November 2004 to April 2006’.⁴⁵¹ The defence had previously sought 16 IRs from Victoria Police, but received redacted versions. The subpoena was likely to ensure scrutiny of the redactions by a court hearing a PII claim,⁴⁵² but its terms required the production of much more material held by the Purana Taskforce and the SDU.⁴⁵³

Given concerns that disclosure of the IRs could reveal Ms Gobbo’s status as a human source, Victoria Police engaged barrister Mr Ron Gipp to make a PII claim over the material. When the application came before the court, defence counsel stated he did not want to know the identity of the human source, just the information relevant to his cross-examination of Mr Cooper.⁴⁵⁴ Although Mr Johns and Mr Flynn, present in court, must have known that the identity of the human source was a significant fact in this case, they did not disclose it to Mr Gipp or the court.⁴⁵⁵ The confidential affidavit filed with the 16 IRs attached did not reveal the human source was Ms Gobbo or a criminal defence lawyer.⁴⁵⁶

Without the full facts, the judge allowed the PII claim in relation to all but one of the IRs referring to intelligence provided by Ms Gobbo.⁴⁵⁷

In responsive submissions, Mr Johns stated that he appropriately sought advice from Mr Gipp to comply with the subpoena. He said he was grappling with a conflict in his own mind that, ‘throughout our training, we’re taught to keep an informer’s identity secret’ and if Ms Gobbo’s identity had been revealed, ‘she would have been killed’.⁴⁵⁸ He also stated he was not involved in the investigation of Mr Cooper or aware of Ms Gobbo’s involvement in the events leading up to his arrest or her attendance at the police station. Additionally, he did not appreciate the impropriety of Ms Gobbo’s conduct in relation to Mr Cooper.⁴⁵⁹ He also contended that, as the SDU was managing Ms Gobbo, her role as a lawyer would have been kept separate to that of a human source,⁴⁶⁰ and legally privileged information would be withheld from investigators.⁴⁶¹

The Commission considers that, subject to any argument about the terms of the subpoena and PII, this broad subpoena would have obliged the Chief Commissioner to produce a significant amount of information including police notes, ICRs, IRs, and other SDU and Purana Taskforce documents that would have exposed Ms Gobbo as a human source.⁴⁶² This material was also apt to expose how Victoria Police deployed her to obtain information used to arrest Mr Cooper, her client, and then Mr Horty Mokbel, another client. Mr Flynn and Mr Johns knew or should have known this.

The Commission also considers that Mr Johns, with primary responsibility for responding to the subpoena, should have thought more deeply about the significant issues, raised them with a superior officer, or sought further legal advice from Mr Gipp or others.

The involvement of senior officers

Following the judge’s ruling on this matter, Mr White emailed Mr Biggin stating:

We had a win re the PII issue for 3838 IRs’ regarding re [Mr Cooper]. They have been appropriately sanitised and the defence are satisfied.⁴⁶³

The Commission also notes evidence from Mr White that the SDU was not involved in questions of disclosure or answering subpoenas. At least in this case, however, investigators closely liaised with SDU officers in relation to the subpoenas.⁴⁶⁴ The Commission has concluded that that SDU officers became involved in disclosure applications where there was a risk that Ms Gobbo’s status as a human source might be revealed.⁴⁶⁵

In responsive submissions, Mr White contended that he did not believe there was any impropriety or potential impropriety in the manner in which the SDU had utilised Ms Gobbo as a human source, and that when counsel was engaged to argue PII claims, they were ‘briefed pretty fully’ and he kept officers Mr Andrew Glow and Mr Biggin apprised of matters relating to the 1 September 2008 subpoena. It was also submitted that his conduct was consistent with expectations of his role at the time.⁴⁶⁶

The Commission considers that by this time, Mr White knew of at least the potential impropriety arising from the manner in which the SDU and the Purana Taskforce had utilised Ms Gobbo. As such, he should have advised SDU officers of the need to instruct Mr Johns to apprise Victoria Police’s legal counsel of the full facts, so that the propriety of Victoria Police’s conduct, potentially relevant to the Mokbel/Bayeh case, could be considered.

Case study: Mr Faruk Orman

The circumstances of Mr Orman’s case are outlined in Chapter 7 and in Orman v The Queen.⁴⁶⁷

Ms Gobbo acted for Mr Orman as junior counsel to Mr Robert Richter, QC,⁴⁶⁸ until the OPP raised conflict concerns and Ms Gobbo ceased acting for him.⁴⁶⁹ Ms Gobbo, however, continued to provide legal advice to Mr Orman outside court hearings, while providing information, including about Mr Orman, to the SDU.⁴⁷⁰

Mr Richter told the Commission that the defence was seeking statements, transcripts and other material to attack Mr Thomas’ credibility, having been instructed that his evidence was false.⁴⁷¹ Mr Richter asked Ms Gobbo how they could discredit Mr Thomas.⁴⁷² She of course knew the answer, but had no intention of providing it, although she feared that Mr Thomas might do so under cross-examination. She turned to police to help.⁴⁷³

Ms Gobbo told her SDU handler that Mr Thomas needed to be told to claim legal professional privilege if asked about her influence and involvement with him.⁴⁷⁴ Before his committal hearing, Mr Thomas was briefed on how to respond if asked about the circumstances in which he rolled. Mr Ryan told Mr White that Victoria Police would make a PII claim if the defence pushed the issue. Victoria Police officers Mr Buick and Mr Mark Hatt were to be present in court.⁴⁷⁵ Mr Buick provided updates on the issue to the SDU during the committal.⁴⁷⁶

In responsive submissions, Mr Hatt asserted that his presence at the committal hearing is not evidence that he was aware of an alleged plan to protect Ms Gobbo from exposure; rather, he was there primarily for Mr Thomas’ welfare and to ensure ‘logistics’ were in place. He submitted that he thought Ms Gobbo was not acting for Mr Thomas at this time; and, during the Commission’s inquiry, Counsel Assisting did not ask him about his role in the committal proceedings.⁴⁷⁷

Mr Buick contended in responsive submissions that while it was possible police considered making a PII claim in relation to Ms Gobbo’s representation of Mr Thomas to due safety concerns, this was a legitimate process.⁴⁷⁸

On the available evidence, the Commission considers that Mr Buick knew of arrangements to protect Ms Gobbo from compromise during the committal proceeding. The Commission is unable to reach a conclusion on this matter in respect of Mr Hatt.

Case study: Mr Carl Williams

Mr Williams’ prosecution for the Marshall murder is another instance of inadequate disclosure.

After a 14 August 2006 Supreme Court hearing concerning Mr Williams’ pending trial, Mr Bateson noted in his diary⁴⁷⁹ that the judge reminded Victoria Police that at some point in claiming PII they would need to decide between investigation and prosecution, and that they were required to hand over any material demonstrating that their witness (Mr Thomas or Mr Andrews) was a liar.⁴⁸⁰

Mr O’Brien later spoke to Mr Overland about ‘PII issues’ associated with the Williams trial.⁴⁸¹ The following day they, together with Mr Bateson and another Purana Taskforce officer, met with Mr Coghlan and other representatives of the DPP to discuss PII and related issues in Mr Williams’ trial.⁴⁸² Mr O’Brien and Mr Bateson knew that police held material concerning Ms Gobbo relevant to Mr Williams’ prosecution, over which they would wish to claim PII. They did not, however, inform either the DPP or their own legal advisers of Ms Gobbo’s problematic role as a human source.⁴⁸³

In his evidence, Mr O’Brien told the Commission that police never intended to disclose Ms Gobbo’s role, as ‘in the normal course of events you didn’t disclose an informer’.⁴⁸⁴ Mr O’Brien conceded in responsive submissions that he should have recommended to his superior officer, Mr Overland, that legal advice be obtained on Victoria Police’s disclosure obligations.⁴⁸⁵ He submitted that he would have likely taken this step had he and other officers received adequate training about their duty of disclosure and had there been sufficient policies, structures and systems in place to support officers’ compliance with those obligations.⁴⁸⁶

Mr Bateson submitted that the hearings focused primarily on the statements of Mr Andrews and Mr Thomas and protecting the integrity of ongoing investigations, an entirely separate issue to protecting Ms Gobbo’s status as a human source.⁴⁸⁷ He further submitted that he was not aware that the ICRs were responsive to the subpoena, because he did not know that the SDU officers were speaking to Ms Gobbo about Mr Thomas.⁴⁸⁸

Mr Overland submitted that he had no specific recollection but assumed he was receiving reports throughout July and August 2006 about the progress of Mr Thomas’ statements and preparations for Mr Williams’ trial. He submitted that he was unaware that, in July 2006, Ms Gobbo was provided with Post-it notes and a pen to make comments on Mr Thomas’ statement. He stated, on hearing of that matter in the witness box on 16 December 2019, it ‘causes me some concern’; that, had he been told, he would have ‘made sure that certainly the prosecutor was aware of that’; and that he would also have retained any annotations, notes or comments made by Ms Gobbo with respect to the statements.⁴⁸⁹

Mr Overland accepted that officers needed guidance and training from the outset to ensure they understood their disclosure obligations and that there should be legal support embedded in a unit such as the SDU.⁴⁹⁰ Mr Overland disputed that he had any specific obligation to ensure that a particular piece or pieces of legal advice were obtained. He submitted that he had ‘complete confidence’ in the ‘senior, experienced detectives’ responsible for disclosure,and it was not his responsibility to supervise or ensure compliance.⁴⁹¹ Mr Overland submitted that it was unrealistic to expect this, given he was not involved in day-to-day operational matters.⁴⁹² He also submitted that it was unclear to him what role Ms Gobbo played in informing on Mr Williams such that there was a need for disclosure in his trial for the Marshall murder—noting that Mr Williams was convicted largely on the evidence of Mr McGrath and Mr Andrews, and Ms Gobbo’s only role was as Mr McGrath’s lawyer (well before her registration as a human source), assisting Mr McGrath to cooperate with police.⁴⁹³

Given Ms Gobbo’s dual role as criminal defence barrister and human source, this was anything but the normal course of events. Mr O’Brien and Mr Bateson, as highly experienced investigators, and Mr Overland as then Assistant Commissioner, Crime and legally qualified, knew or should have known that informer privilege is never absolute.

The Commission is satisfied that, in August 2006, Mr Overland, Mr O’Brien and Mr Bateson should have raised with Mr Coghlan, who was prosecuting Mr Williams, Ms Gobbo’s involvement in rolling Mr Thomas, a key prosecution witness. They should also have sought legal advice as to the need for disclosure in all pending prosecutions relying on evidence obtained through intelligence provided by Ms Gobbo as result of her informing to Victoria Police. Their failure to do this effectively usurped the role of the court in determining PII claims concerning Ms Gobbo and conveniently avoided proper court scrutiny of Victoria Police’s use of Ms Gobbo as a human source.

The Commission repeats its earlier conclusions that what was not (but should have been) disclosed was that Ms Gobbo had informed on Mr Thomas and Mr Williams when purporting to act as their independent lawyer. She then encouraged Mr Thomas to roll, without disclosing that she was an agent of Victoria Police; she also did not disclose her involvement in amending Mr McGrath’s statements, as noted earlier in this chapter.

Case study: Mr Zlate Cvetanovski

In April 2008, Mr Zlate Cvetanovski was charged with serious drug offences arising from Operation Posse. He was convicted in July 2011 after his second trial, the first jury having been discharged without a verdict.⁴⁹⁴ Mr Cooper was a key witness against Mr Cvetanovski.⁴⁹⁵

At Mr Cvetanovski’s first trial, his counsel told the judge that he proposed to ask Mr Cooper as a witness whether he and Ms Gobbo collaborated to secure him a favourable sentence.⁴⁹⁶ The prosecutor, Mr John Champion, SC, sought leave to seek instructions from police about this⁴⁹⁷ and met with Purana Taskforce officers, Detective Senior Constable Craig Hayes (the informant) and Mr Flynn, along with SDU officer Mr Pearce (a pseudonym), to ascertain the facts.⁴⁹⁸

Mr Pearce emailed his superior, then Inspector John O’Connor with an update from the meeting, indicating that they discussed assertions by the defence that:

• Ms Gobbo and Mr Cooper collaborated on statements made by him to get a lesser sentence
• Mr Cooper was aware that Ms Gobbo was cooperating with police.⁴⁹⁹

The email also said that Mr Champion expected the defence to paint a picture of a conspiracy to pervert the course of justice by Victoria Police, and that, if this occurred, the options were to ‘ask Cooper, ask Flynn or call Gobbo’.⁵⁰⁰ Mr O’Connor forwarded this email to then Superintendent Paul Sheridan ‘for discussion’. It appears the two met later that day regarding Ms Gobbo and the court matter where she may be called.⁵⁰¹ The issue was not raised again in either of Mr Cvetanosvki’s trials, and police did not disclose relevant information to the defence, DPP or court.

Counsel Assisting suggested that the defence assertion was close to the truth and should have prompted disclosure of Ms Gobbo’s true role, at least to the DPP.

Responsive submissions contested this view:

• Mr Flynn noted that Victoria Police had not provided him with training and instruction on how to navigate these issues, and he did not fully understand the ethical issues and consequences of Ms Gobbo’s involvement in rolling Mr Cooper.⁵⁰²
• Officers Mr Hayes,⁵⁰³ Mr Pearce,⁵⁰⁴ and Mr Richards⁵⁰⁵ asserted that, in raising the issue with their superiors in the chain of command, they did all that was required of them. Mr Pearce and Mr Richards added that to do more without a direction from a superior officer would ignore the chain of command and could amount to a breach of discipline.
• Mr O’Connor and Mr Sheridan said they were not involved in nor responsible for Mr Cvetanovski’s prosecution or disclosure issues. Mr Sheridan added that at the time he knew little about Ms Gobbo’s informing.⁵⁰⁶

The Commission has considered these responsive submissions and the available evidence and considers that Mr O’Connor and Mr Sheridan seek to abrogate the responsibility that goes with their senior positions. Concerns were escalated to them and had they made enquiries they would have found issues of substance going to the fairness of Mr Cvetanovski’s trial and perhaps other trials. As senior officers, they had a duty to investigate these issues or at least refer them up the chain of command to satisfy themselves that Victoria Police’s disclosure obligations were met; they should have at least informed Mr Champion of all relevant facts. The submissions of Mr Flynn, Mr Hayes, Mr Pearce and Mr Richards have merit, but ultimately the Commission is persuaded that all officers were experienced, intelligent investigators who should have understood the criminal justice system and their disclosure obligations.

The Commission finds that officers Mr Flynn, Mr O’Connor, Mr Hayes, Mr Sheridan, Mr Pearce and Mr Richards should have:

• ensured that Ms Gobbo and Victoria Police’s conduct in relation to Mr Cooper’s decision to assist police was disclosed to the prosecutor in Mr Cvetanovski’s trial; or
• ensured that the relevant conduct was otherwise disclosed to the court so that a claim of PII could have been heard and determined.

The Court of Appeal decision in Cvetanovksi v The Queen⁵⁰⁷ and the concessions made by the prosecution highlights further disclosure failures by Victoria Police and its officers.

Case study: Mr Milad Mokbel

During 2006 and 2007, Victoria Police and Ms Gobbo worked together to facilitate a guilty plea by Mr Milad Mokbel to charges arising from Operation Posse. This was motivated at least in part to prevent exposure of Ms Gobbo’s role as a human source and her involvement with Mr Cooper. The Purana Taskforce and the SDU strategised to prevent this information coming out during committal proceedings.

Purana Taskforce investigators arrested Mr Mokbel on 25 April 2006 after he participated in a drug transaction with Mr Cooper, who had by then rolled and was assisting police.⁵⁰⁸ Mr Mokbel wanted Ms Gobbo to represent him. Given her clear conflict of interest, investigators understood the SDU had told her to explain to Mr Mokbel that she could not act for him.⁵⁰⁹ After speaking to Mr Mokbel at the police station following his arrest, however, Ms Gobbo told Mr Flynn that he wanted to plead guilty to serious drugs charges, and Mr Mokbel confirmed this to Mr Rowe and Mr Flynn.⁵¹⁰ In responsive submissions, Mr Rowe contended that it is just as likely that Mr Mokbel came to his own decision to plead guilty in order to dispose with his charges as quickly as possible, without Ms Gobbo’s advice.⁵¹¹

On 5 March 2007, the monthly source review prepared by the SDU noted that court discovery issues in Mr Mokbel’s upcoming committal hearing might cause suspicion regarding Ms Gobbo’s assistance in rolling Mr Cooper. It noted she would be advised that SDU would focus on these discovery issues to manage her protection.⁵¹² The following day, SDU and Purana Taskforce officers met and discussed how Mr Mokbel had approached Ms Gobbo to assist in negotiating a plea.⁵¹³ Her handler was given information for Ms Gobbo about the Purana Taskforce’s requirements for a deal,⁵¹⁴ and two days later, Mr O’Brien met with Ms Gobbo in her chambers to discuss the Taskforce’s expectations for a guilty plea and Mr Mokbel’s case.⁵¹⁵

Mr O’Brien and Mr Flynn (with the benefit of hindsight) both told the Commission they identified the conflict in Ms Gobbo involving herself in representing Mr Mokbel,⁵¹⁶ although Mr O’Brien said while there may have been discussions about this, he did not think Mr Mokbel would plead guilty.⁵¹⁷

Certainly, concerns about conflicts were not raised, even during discussions regarding conflicts in other cases. For example, on 14 March 2007, Mr Flynn and Mr Rowe attended a conference with then DPP, Mr Coghlan, who made it clear that Ms Gobbo was not to represent another client, Mr Bickley (a pseudonym), given her conflict in having previously represented both Mr Tony Mokbel and Mr Cooper.⁵¹⁸ This was a missed opportunity for those officers to raise Ms Gobbo’s conflict in Mr Milad Mokbel’s case with Mr Coghlan, or at least this meeting should have prompted police to take steps to address that conflict themselves.

In tandem with efforts to facilitate a plea, Purana Taskforce and SDU officers met on 13 March 2007 to discuss disclosure issues surrounding Mr Flynn’s notes from the night of Mr Cooper’s arrest.⁵¹⁹ When they met again on 19 March 2007, they agreed that a guilty plea would be the best option, but in any case they would not disclose Mr Flynn’s notes on the basis of relevance and because the defence had not specifically asked for them.⁵²⁰ This was contrary to their disclosure obligations. As the committal approached, the SDU and Purana Taskforce met again and agreed that Mr Flynn’s notes from the night of Mr Cooper’s arrest would be redacted on the basis of both relevance and threats against Ms Gobbo. The SML recorded that they determined that if cross-examined, Mr Flynn would need to reveal that Ms Gobbo had attended to provide legal advice.⁵²¹ No-one sought legal advice about disclosure requirements.⁵²²

The SDU met with Ms Gobbo on 30 March 2007 and discussed disclosure risks. They said that no notes relating to Mr Cooper would be provided; that they would not make a PII claim as the information would not be kept secret; and that the SDU would liaise with investigators about relevant notes. They also discussed her upcoming visit to Mr Milad Mokbel, and how she would advise him in relation to a guilty plea.⁵²³

Over April and May 2007, despite these conflicts and not being the lawyer on the record, Ms Gobbo kept regular contact with Mr Mokbel and continued to negotiate with and provide information to the Purana Taskforce about a possible guilty plea.⁵²⁴ When Ms Gobbo reported these developments to the SDU, they restated that it was not appropriate for her to represent Mr Mokbel.⁵²⁵ On 19 June 2007, however, she told her handler that Mr Mokbel wanted to plead guilty, but his solicitor would not assist until he was paid. Ms Gobbo impressed upon her handler the importance of Mr Mokbel pleading guilty to avoid her exposure and requested he take this up with Mr Flynn.⁵²⁶ Over subsequent days, she told her handler that Mr Mokbel wanted her to act for him on his guilty plea, she was frustrated at the lack of progress and was concerned that, with his solicitor interstate, Mr Mokbel may change his mind about pleading guilty. Her handler suggested she could speak to Mr Mokbel if she thought it would help, adding that she could not represent him (presumably meaning in court).⁵²⁷

When the committal proceeding commenced, Mr Mokbel reserved his plea, his lawyer indicating his intent to negotiate a plea. He was therefore not in court for the committal of his co-accused.⁵²⁸ What occurred provides yet further insight into Victoria Police’s unsatisfactory approach to disclosure:

• When asked about Mr Cooper’s statements, Mr Flynn said they were taken using a computer with changes saved over the previous version. In relation to one of the statements, he said there were no other drafts and otherwise no other records of changes made during the process.⁵²⁹ He told the Commission that he had, however, printed some drafts for Mr O’Brien, and had delivered versions to the SDU for Ms Gobbo’s review, and possibly emailed some to colleagues. He said his evidence at the committal was not misleading because the Purana Taskforce’s process was not to have drafts.⁵³⁰
• Under cross-examination, Mr Flynn said that Mr Cooper had access to Ms Gobbo before his first police interview, but that she was not present for the taking of any statements.⁵³¹ Counsel Assisting, in their submissions, suggested that this was misleading given Ms Gobbo had a conversation with Mr Cooper on 14 May 2006 when police indicated to her concerns about how forthcoming he was being.⁵³² Mr Flynn disagreed, noting statements were not taken while she was there.⁵³³
• In relation to Ms Gobbo’s attendance at the police station on the night of Mr Cooper’s arrest, Mr Flynn said the interview went over several hours and he would have to check if there was more than one call to Ms Gobbo, ‘but that was it basically’.⁵³⁴ He said Ms Gobbo attended the station but he did not believe she remained there over the course of that first interview.⁵³⁵

The Purana Taskforce and SDU officers involved in efforts to avoid adequate disclosure, claimed this was done solely out of concern to protect Ms Gobbo’s safety. Another powerful motivator was likely to be the avoidance of reputational damage, public exposure and judicial criticism of their use of a prominent criminal defence lawyer as a human source, given that this may have put past and future convictions at risk. It also allowed them to continue to receive and use her valuable intelligence and tactical advice.

Petra Taskforce

As outlined in Chapter 6, from 2007 onwards, Ms Gobbo became increasingly involved in, and important to, the work of the Petra Taskforce and the Briars Taskforce. This put her on the path to becoming a witness and her deregistration as a human source in January 2009, when she signed a statement implicating Mr Dale in the Hodson murders.

The Hodson murders and establishment of Petra Taskforce

On 15 or 16 May 2004, Mr Terry and Mrs Christine Hodson, were murdered in their home in Kew.⁵³⁶ Mr Hodson had become a human source in 2002 following his arrest on drug charges by then Detective Senior Constable David Miechel of the MDID, who became his police handler. When Mr Dale joined the MDID in 2002, he became Mr Hodson’s controller.⁵³⁷

In September 2003, Mr Dale, and the officers of the MDID, were targeting large-scale drug manufacturing involving Mr Ahmed, Ms Abbey Haynes and Ms Colleen O’Reilly. Victoria Police were preparing to execute a search warrant at a house in Dublin Street, Oakleigh, thought to contain a large quantity of drugs and cash.⁵³⁸ On 27 September 2003, Mr Miechel and Mr Hodson were apprehended after committing a burglary at the Dublin Street property. Mr Miechel rang his supervisor, Mr Dale, who went to the MDID office soon afterwards and in the following days. Mr Dale maintained that this was in the course of his duties. It was later alleged he took a file containing duplicate IRs relating to intelligence supplied to police by Mr Hodson.⁵³⁹

In the following weeks, Mr Hodson spoke with detectives, implicated both Mr Miechel and Mr Dale in the burglary, and later agreed to give evidence against them.⁵⁴⁰ On 5 December 2003, all three men were arrested and charged with the burglary.⁵⁴¹

Shortly before the Hodson murders, a newspaper published information from a Victoria Police IR (also known as ‘IR44’) that made clear Mr Hodson was a human source.⁵⁴² By the end of May 2004, further media reports suggested that IR44, or at least part of it, had been seen by, and may be in possession of, journalists, criminals or others.⁵⁴³ It is commonly understood that the Hodson murders were motivated by Mr Hodson’s informing.⁵⁴⁴

Operation Loris was established on 17 May 2004 by the Homicide Squad to investigate the Hodson murders. There were several suspects, including Mr Dale, Mr Williams, Mr Tony Mokbel and other gangland figures.⁵⁴⁵ The OPI engaged the Honourable Gerald Edward (Tony) Fitzgerald, AC, QC to probe the leaking of the IR. Mr Fitzgerald found Mr Dale was an obvious suspect in the theft of that document.⁵⁴⁶

From late 2006, Victoria Police was in discussions with Mr Williams’ lawyers regarding the possible resolution of multiple murder charges and his potential assistance with the Hodson murders.⁵⁴⁷ In early March 2007, Purana Taskforce investigators took a ‘can say’ statement from Mr Williams in relation to these matters, in which he implicated Mr Dale in the Hodson murders.⁵⁴⁸ Mr Williams signed the statement on 24 April 2007 and, at a plea hearing three days later, gave an undertaking to give evidence in accordance with it.⁵⁴⁹

After discussions between senior Victoria Police officers and the OPI,⁵⁵⁰ on 3 April 2007, Ms Nixon approved the establishment of the Petra Taskforce to investigate the Hodson murders. Joint management arrangements with the OPI included a Board of Management consisting of a Deputy Commissioner, Assistant Commissioner, the ESD, the Crime Department Operations Superintendent and an OPI representative.⁵⁵¹ The Petra Taskforce was initially led by Mr Ryan, with Mr Shane O’Connell as the lead investigator. Mr Sol Solomon and Mr Cameron Davey were seconded to the Petra Taskforce in April 2007. Mr Steven Smith commenced as Inspector in charge of the investigation in mid-2008 after Mr Ryan’s retirement.⁵⁵²

Ms Gobbo’s connections to Petra Taskforce

Ms Gobbo’s connections with people and events associated with the Hodson murders were complex, reflective of her entanglements with organised crime figures and police. As discussed in Chapter 6, key elements were as follows:

• Prior to their arrests, Ms Gobbo dealt with Mr Miechel and Mr Dale as investigators in various drug cases in which she was briefed.
• Ms Gobbo represented Mr Ahmed, Ms Haynes and Ms O’Reilly following their arrests (on the same night as the burglary) for involvement in the drug activity at the Dublin Street house.
• Following the burglary, the ESD contacted Mr Terry Hodson through Ms Gobbo and she represented him in relation to the Dublin Street charges.
• Mr Hodson told the ESD he thought Ms Gobbo was sleeping with Mr Dale.
• Mr Dale rang Ms Gobbo for advice after his arrest on 5 December 2003, and she made two professional visits to him in custody; he gave her written instructions to pass to his solicitor, which she copied and years later gave to the SDU.
• In early 2004, Ms Gobbo and Mr Dale communicated by phones registered in fictitious names, and Ms Gobbo facilitated communication between Mr Williams and Mr Dale.
• Upon finding his parents’ bodies after their murder in May 2004, Mr Andrew Hodson’s first call was to Ms Gobbo to facilitate contact with the ESD.
• On 1 July 2004, Ms Gobbo was interviewed by the Homicide Squad in relation to the murders; they specifically questioned her about several clients and whether she had discussed Mr Terry Hodson and his status as a human source with them.
• Ms Gobbo was examined by the OPI in relation to IR44 relating to Mr Hodson, and whether she was a conduit between Mr Tony Mokbel, Mr Williams and Mr Dale in relation to the leak, leading to the murders.⁵⁵³

Ms Gobbo was identified early in the investigation as a person of interest, given her connection with key players.⁵⁵⁴ By February 2008, the Petra Taskforce believed she may have knowledge about the planning of the murders⁵⁵⁵ and interviewed her in three meetings from 26 February to 5 March 2008.⁵⁵⁶

Ms Gobbo becomes a witness

On 30 November 2008, Mr Dale contacted Ms Gobbo and they arranged to meet the following weekend.⁵⁵⁷

On 3 December 2008, Ms Gobbo told the SDU handlers she had met with investigators who said they would do everything in their power to use her as a witness and discussed recording her upcoming meeting with Mr Dale.⁵⁵⁸ Ms Gobbo told the SDU handlers that she was concerned about being a witness; she feared death threats and having to leave Victoria.⁵⁵⁹ Late that afternoon, her concerned handlers, Mr White, Mr Smith and Mr Green, spoke with Mr O’Connell, who confirmed that the Petra Taskforce wanted to use her as a witness to corroborate Mr Williams’ corrupt relationship with Mr Dale and to record her upcoming meeting with him.⁵⁶⁰ The SDU officers warned the Petra Taskforce that Ms Gobbo’s value as a witness had to be balanced against the risk of exposure. Mr O’Connell said this was a decision for ‘a person with higher authority and knowledge of all the facts’.⁵⁶¹ Mr Overland accepted that he was probably this person.⁵⁶²

On 5 December 2008, the SDU officers raised their concerns directly with Mr Overland. Before the meeting, Mr Black briefed Mr White on the risks of Ms Gobbo becoming witness. An ICR recording this conversation read:

• Risk of [Ms Gobbo’s] exposure as a Source
• Risk to organisation if long term Source role is exposed = perception of Source passing on privileged information and Police using same
• Risk of Royal Commission into Source Handling by the SDU as a result of above
• Threat to [Ms Gobbo’s] personal safety if gives evidence
• … If target Dale is charged will call [Ms Gobbo] as legal counsel in the first instance
• Target Dale will claim that all previous conversations with [Ms Gobbo] were privileged
• … Jeopardise future prosecutions if [Ms Gobbo’s] role divulged (mostly Mokbel and spin offs)
• Leave previous convictions open to claims of being unsafe [because] of [Ms Gobbo’s] involvement/privilege
• Duty of care to [Ms Gobbo’s] mental [and] physical health for proven assistance of long term—has touched on suicide on several occasions.⁵⁶³

Mr White told the Commission that he recalled all the risks listed in the briefing were raised with Mr Overland, but that Mr Overland said Ms Gobbo was potentially useful in the very serious corruption investigation into Mr Dale, and ‘corruption trumps everything’.⁵⁶⁴ Mr Black told the Commission that Mr Overland said words to the effect that while he had listened to the SDU’s concerns, Ms Gobbo would become a witness.⁵⁶⁵

Mr Overland told the Commission he did not decide Ms Gobbo would be a Petra Taskforce witness until after she recorded her conversation with Mr Dale; this was ‘the clincher’, as Mr Dale’s comments supported aspects of Mr Williams’ statement.⁵⁶⁶ He did recall the SDU’s strong views about not wanting Ms Gobbo to give evidence.

The Commission accepts the evidence of Mr White, supported by the evidence of Mr Black and their contemporaneous notes, that these matters were discussed. This is also supported by some of the strategies developed to deal with the risks that they said were discussed.⁵⁶⁷

In expressing the view that ‘corruption trumps everything’, Mr Overland perhaps did not appreciate the irony that he may be fighting one form of suspected police corruption—police providing confidential information to criminals—with another—police using a lawyer as a human source against her own client.

Following Mr Overland’s instruction that Ms Gobbo would become a witness, Mr White recorded in the SML that the Petra Taskforce was to take over management of Ms Gobbo. He described it as a ‘barrier/break [between] SDU management and witness management’⁵⁶⁸ and noted in his diary:

… agree deployment of [Ms Gobbo] to be done by Petra to isolate re Dale from SDU in order to protect historical relationship with SDU and discovery should [Ms Gobbo] become witness against Dale.⁵⁶⁹

Ms Gobbo records Mr Paul Dale

On the afternoon of 5 December 2008, Ms Gobbo’s SDU handler told her she was to deal with Petra Taskforce investigators who wanted her to provide a statement and record a meeting with Mr Dale. Ms Gobbo again outlined her concerns at becoming a witness, including the prospect of overturned convictions.⁵⁷⁰ On 7 December 2008, however, she recorded her meeting with Mr Dale.⁵⁷¹ On 9 December 2008, Mr O’Connell told Ms Gobbo’s handler that the Petra Taskforce wanted to use her as a witness as her taped conversation with Mr Dale supported aspects of Mr Williams’ statement.⁵⁷²

On 11 December 2008, Ms Gobbo met with Petra Taskforce investigators for over two hours. She reported to her SDU handlers that they told her that Mr Dale could not be charged or convicted without her evidence. Ms Gobbo did not want to go into witness protection, but said she was told ‘there is nothing that Simon Overland would not do for [her]’, and that he regarded this to be ‘the most significant prosecution’ for Victoria Police.⁵⁷³

The following day, Ms Gobbo told her handler that she was stressed and referred to suicide.⁵⁷⁴ She told her handler that if Mr Dale was charged, then she wanted to be a witness as she did not want the defence to allege she was somehow involved in the murders. Her handler noted this was ‘bizarre’. When questioned further, Ms Gobbo said that Mr Dale would likely want her as a witness in any case.⁵⁷⁵

Mr White told the Commission that on 19 December 2008 he met with Mr Biggin, who directed him to convince Ms Gobbo to become a witness.⁵⁷⁶

‘The evidence is gold but it comes at a price’

On 30 December 2008, Ms Gobbo raised compensation with her SDU handler and she said she would make a list of matters to be addressed before she signed a statement.⁵⁷⁷ On 1 and 2 January 2009, she provided her statement to Petra Taskforce investigators but, ignoring their pressure, she did not sign it.⁵⁷⁸ She again spoke to her handler about compensation and said ‘this evidence is gold but it comes at a price’.⁵⁷⁹

Later, her handler recorded her saying, ‘I do not want to have to sue them in a year’s time, if I don’t get what I need’. Ms Gobbo was concerned that Mr O’Connell was giving her standard assurances about being looked after.⁵⁸⁰ She wanted him to know her history as a human source⁵⁸¹ and to avoid all possibility of ‘the informer side coming out, ever’.⁵⁸²

Source Development Unit concerns about Ms Gobbo’s transition to witness

From March 2006 until August 2010, Superintendent Mark Porter was in charge of the State Intelligence Division, within the then Intelligence and Covert Services Department, and was the Local Source Registrar (LSR) for the HSMU. He was also the Central Source Registrar (CSR),⁵⁸³ which involved overseeing Victoria Police’s state-wide register of human sources, including the SDU’s sources, and making final decisions on disagreements about the management of individual human sources.⁵⁸⁴

Mr Biggin told the Commission that he directed the SDU to prepare a SWOT analysis so the consequences of deciding to make Ms Gobbo a witness were fully identified, properly documented and flagged with the executive group. On 2 January 2009, he submitted it with an Issue Cover Sheet (a Victoria Police internal briefing note) to Mr Porter, recommending it be sent to Mr Moloney, who since November 2008 had been the Assistant Commissioner, Crime.⁵⁸⁵ The Issue Cover Sheet, referred to below as the ‘Biggin memo’, noted that:

• Ms Gobbo had been placed in contact with Mr O’Connell of the Petra Taskforce.⁵⁸⁶
• She had been registered as a human source since 16 September 2005.⁵⁸⁷
• Her registration number had been changed because of concerns arising as to disclosure in court proceedings.⁵⁸⁸
• Attached was a briefing paper setting out a strategic analysis based upon a SWOT analysis.⁵⁸⁹
• If Ms Gobbo ultimately signed a statement and became a witness, it was a matter for her and the investigators.⁵⁹⁰
• She had been a very productive human source; she was responsible for a number of investigations and was due a reward as a result.⁵⁹¹
• She was highly needy and would be resource intensive.⁵⁹²
• There were organisational risks that the SDU was prepared to expand upon to the Petra Taskforce Board of Management.⁵⁹³
• The purpose of the paper was to ensure that decision makers were in possession of relevant information to allow proper decisions to be made.⁵⁹⁴
• Decisions made today may have long term implications for Victoria Police.⁵⁹⁵

The SWOT analysis referred to possible implications of transitioning Ms Gobbo to the role of a witness, including:

• her exposure as a long-term human source with Victoria Police⁵⁹⁶
• an OPI or government review into the legal and/or ethical implications of the use of a criminal defence barrister as a human source to Victoria Police⁵⁹⁷
• judicial review of police action in tasking and deploying a criminal defence barrister as a human source⁵⁹⁸
• the disclosure of ICRs and covert recordings⁵⁹⁹
• PII claims and resulting issues⁶⁰⁰
• successful appeals by former clients⁶⁰¹
• the potential to jeopardise current prosecutions, such as against Mr Tony Mokbel⁶⁰²
• the revelation of her prior inconsistent statements to the SDU about her relationship with Mr Dale and her failure to disclose the mobile phone numbers she used to contact him⁶⁰³
• concerns as to her questionable motivation⁶⁰⁴
• costs to Victoria Police, which could be substantial because of:⁶⁰⁵
  • Ms Gobbo’s loss of income as a result of being unlikely to continue working as a lawyer
  • her relocation if the extent of her role became known
• the risk to her safety, including death or serious injury, as she did not want to enter the full Witness Protection Program⁶⁰⁶
• concerns about her physical and mental health.⁶⁰⁷

Mr Porter signed off on the Biggin memo on 5 January 2009. Mr Biggin collected it and delivered it to Mr Buick, then Mr Moloney’s staff officer.⁶⁰⁸ Mr Moloney agreed in evidence to the Commission that the SWOT analysis raised very major concerns for Victoria Police and major risks for Ms Gobbo’s transition to a witness. For that reason, he said he took the document to Mr Overland with the intention that it be tabled for consideration at the Petra Taskforce Board of Management meeting,⁶⁰⁹ scheduled for 4.00pm that day.⁶¹⁰ Mr Buick documented this in the correspondence log.⁶¹¹

Mr Overland told the Commission he could not recall the 5 January 2009 Board of Management meeting or seeing the Biggin memo or SWOT analysis, but accepted that the evidence suggested he did receive it.⁶¹² He understood that these were general concerns about Victoria Police having used a barrister as a human source, and that he had always thought this could be an issue at trial.⁶¹³ He claimed that he did not know that Ms Gobbo’s role as a human source had not previously been disclosed to a court.⁶¹⁴ He thought he discussed the issues with Mr Ashton but could not recall the detail.⁶¹⁵

Counsel Assisting put to Mr Overland that the SWOT analysis should have immediately been provided to the OPI. He responded that if it was taken to the Board of Management, Mr Ashton would have seen it.⁶¹⁶ He also did not consider it necessary to brief Ms Nixon, this being an operational matter,⁶¹⁷ even after Counsel Assisting pointed out that the SWOT analysis raised broader matters of concern to a Chief Commissioner, such as OPI or government inquiries being undertaken or verdicts beingoverturned.⁶¹⁸ Mr Overland did not accept that the SWOT analysis warranted analysis or investigation to determine if there was substance to the concerns it raised.⁶¹⁹

In his responsive submissions, Mr Overland did not accept Counsel Assisting’s proposition that it would be clear to anyone reading the SWOT analysis that Ms Gobbo’s role had not previously been disclosed to a court. He said risks relating to OPI review, appeals and unsafe verdicts were related to criminal defence barristers defending matters vigorously, including making suggestions of improper police conduct.⁶²⁰ He highlighted his evidence to the Commission that while he could not recall seeing the SWOT analysis, he was aware of the risks, thought they were being managed, and considered that transitioning Ms Gobbo from human source to witness and getting her into witness protection was the sensible thing to do.⁶²¹

Mr Moloney told the Commission that he recalled attending the 5 January 2009 Petra Taskforce Board of Management meeting. He thought the Biggin memo and SWOT analysis were tabled and the issues they raised discussed by Mr Overland, Mr Ashton and him.⁶²² He said he had a recollection of Mr Overland speaking generally to the content of the documents and saying words to the effect that he was aware of the issues raised, but they only came from one perspective. He could not remember the issue of a possible OPI review being raised, or whether Mr Ashton read the document.⁶²³ He recalled that there was no real consideration of the documents beyond Mr Overland reading them and making comments.⁶²⁴ Mr Moloney said that to the best of his recollection Mr Overland, as head of the Petra Taskforce, made the decision for Ms Gobbo to become a witness, after discussion with the Board of Management.⁶²⁵ Mr Moloney said he did not consider that this evinced a governance problem: Mr Overland was entitled to make this decision.⁶²⁶

In responsive submissions, Mr Moloney asserted that it cannot be inferred he had adequate time to consider the contents of the SWOT analysis to the level of detail assumed; he reviewed it only in sufficient detail to recognise the issues raised warranted consideration by the Petra Taskforce Board of Management.⁶²⁷ He said that as a relatively new member of the Board, he had limited knowledge of Ms Gobbo’s informing, did not know that the Purana Taskforce used her intelligence, and was not involved in discussions about non-disclosure of her history—he considered this a risk to be considered in relation to her becoming a witness.⁶²⁸

Mr Ashton’s evidence to the Commission was that, while aware of the SDU’s resistance to Ms Gobbo becoming a witness based on safety concerns, he did not recall the 5 January 2009 meeting⁶²⁹ and nor did he recall having read the Biggin memo or the SWOT analysis. He said that as the SWOT analysis referred to the OPI, this was something he would have remembered;⁶³⁰ that as the then Assistant Director of the OPI, he would have questioned what was going on with the human source that could make it necessary for the OPI to conduct a review;⁶³¹ that he should have been shown the document;⁶³² that relevant officers would have had an obligation to notify the OPI; and that he believed the document should also have been provided to the Chief Commissioner.⁶³³

Mr Ashton’s responsive submissions stated that he did not receive or read the SWOT analysis, and that the evidence is unequivocal that its contents were not read out to or addressed at the meeting. Mr Ashton submitted that any suggestion he should have reacted as if he had seen it should be rejected for being based on incorrect hypotheses: that he knew Ms Gobbo was a human source in 2006; and that he learned of the nature of her relationship with police through attendance at Petra and Briars Taskforce meetings.⁶³⁴

Summary of conduct

Having considered the evidence and relevant responsive submissions, the Commission is satisfied that Mr Overland was given the Biggin memo and SWOT analysis, noting Mr Moloney’s account and supporting documentary evidence.

The Commission finds that it would or should have been clear to anyone who read the SWOT analysis, or knew of the concerns raised therein, that Ms Gobbo’s role as a human source had not previously been disclosed in court proceedings. The Commission is not persuaded by Mr Overland’s responsive submissions on this matter and considers that if her use had been condoned by the courts, many of the risks identified would already have been dealt with.

Given the senior roles Mr Overland and Mr Moloney held within Victoria Police and the serious matters raised in the SWOT analysis and Biggin memo, the Commission considers that they should have, but did not: seek legal advice; follow up with Mr Biggin or the SDU as to the serious concerns raised in the documents; or report the matter to the OPI or the Chief Commissioner.The Commission finds that these were serious failings on the part of Mr Overland and Mr Moloney.

The Commission considers that, on the evidence before the Commission, the SWOT analysis and Biggin memo were not shown to Mr Ashton, given his evidence and that of Mr Moloney, who could not recall Mr Ashton reading the documents. The Commission is not persuaded that not showing the documents to Mr Ashton in his OPI role was a deliberate decision on the part of Mr Overland and Mr Moloney.

Mr Ashton also submitted that ‘no comment or finding’ and, in particular, no ‘adverse finding’ should be made about his conduct while at the OPI.⁶³⁵ As Mr Ashton has rightly acknowledged, however, matters that came to his attention while he was an OPI officer may be relevant both to his subsequent conduct as a Victoria Police officer (from December 2009 until June 2020); and may be otherwise relevant to the Commission’s terms of reference.⁶³⁶

While the Commission is not empowered to inquire into the OPI,⁶³⁷ as is the case with the Briars Taskforce outlined below, Mr Ashton’s conduct on the Petra Taskforce Board of Management is clearly relevant to, and intertwined with, the conduct of Victoria Police and potentially affected cases. What can be said is that these events throw doubt on the wisdom of the combined operations between Victoria Police and the OPI at this time, given the OPI’s primary role as an independent police oversight and anti-corruption body.

Mr Ashton may not have known the full extent of Ms Gobbo’s duplicitous role, but from earlier discussions regarding Operation Khadi outlined above, he knew she was a criminal defence barrister who had operated for an extended period as a Victoria Police human source under the supervision of the SDU. He should have known that this inherently problematic situation warranted urgent legal advice as to its propriety and that it may very well raise issues requiring the OPI’s investigation and oversight. Mr Ashton’s omission to investigate the propriety of Ms Gobbo’s use as a human source was a lost opportunity for the OPI to perform its independent oversight function.

Ms Gobbo signs her witness statement

On 7 January 2009, Ms Gobbo signed her statement.⁶³⁸ Prior to signing, she told Mr O’Connell about her history with Victoria Police.⁶³⁹ She said she had been in close contact with the SDU since September 2005, and while originally she was only to provide information on the Mokbel family, this developed much further. She told Mr O’Connell:

Just snowballed, um, in a massive way and then things fell into my lap. Um, all of a sudden there were people telling me about murders … you name it. And it just, what I thought was going to finished in a certain period of time just went on and on and on. When a number of families kind of, you known, from celebrated all the MOKBELs were locked up and all of a sudden Mick [Gatto] started ringing me and that was like, well, how can we ignore, um, my instructions [from Ms Gobbo’s handlers] kind of changed to stop asking those people questions to stop trying to find things out just didn’t work. And even doing that, Shane, they’re still, um, the information I was getting was still sufficiently valuable.⁶⁴⁰

She told him that she had represented many people where she had a conflict of interest, including the Mokbels, Mr Cooper, Mr Thomas, Mr Gatto, Mr Orman and clients involved in the Tomato Tins drug syndicate cases. She spoke of her fears that disclosure subpoenas and cross-examination might result in revealing her human source status. Concerningly, Mr O’Connell said they might need to work on structuring an answer for cross-examination that left things vague and open.⁶⁴¹ They also spoke about Ms Gobbo’s dealings with the SDU in relation to Mr Dale, including her providing a copy of Mr Dale’s instructions to Mr Ryan through the SDU.⁶⁴²

In his evidence to the Commission, Mr O’Connell agreed that Ms Gobbo had told him concerning things but did not feel he needed to consider these matters further before she signed her statement.⁶⁴³ When asked why he did not take these concerns to his superiors, he said he understood that senior officers on the Petra Taskforce Board of Management knew of Ms Gobbo’s role, and he believed that it was being dealt with elsewhere.⁶⁴⁴ On 1 February 2009, Ms Gobbo told him she initially tried to limit the information she provided to police to non-privileged material but over time it became too hard to tell half the story. Mr O’Connell could not recall that conversation but repeated his view that others were dealing with it.⁶⁴⁵

Counsel Assisting put to Mr O’Connell that, if this information from Ms Gobbo was disclosed to the defence, it would have seriously compromised the case against Mr Dale. He said it was ultimately a decision for a senior Crown Prosecutor to assess the strength of the evidence and added that he could not recall if he provided the material to the DPP.⁶⁴⁶

The Commission considers that Mr O’Connell should have ensured the concerning information Ms Gobbo told him was given to the DPP, or at least his superior officers, to consider whether it needed to be disclosed to the defence.

Ms Gobbo deregistered as a human source and Mr Dale charged

On 12 January 2009, Ms Gobbo met with her SDU controller and handlers for the last time.⁶⁴⁷ She told them that she signed the statement for the Petra Taskforce because she had received all the promises she wanted from Mr O’Connell.⁶⁴⁸ Mr O’Connell later refuted her assertion in her civil proceedings against Victoria Police that he had said words to the effect that she ‘would be looked after’ or ‘would be no worse off financially’.⁶⁴⁹

On 13 January 2009, Ms Gobbo was finally deregistered as a human source.⁶⁵⁰

Mr Cornelius told the Commission that, upon his return from leave, he was told nothing of the process that had occurred for Ms Gobbo to become a witness; nor was he aware of any resistance to it. He said he would have been interested in a debate on the merits of Ms Gobbo’s transition to witness and that he would have wanted a risk assessment.⁶⁵¹ It is unclear whether Mr Cornelius sought any update on the deliberations of the Board of Management or on significant documents tabled in his absence.

Mr Dale was arrested on 13 February 2009 and charged with the Hodson murders.⁶⁵²

On 31 March 2009, Mr Overland chaired the Petra Taskforce Board of Management meeting for the last time, having been appointed Chief Commissioner of Victoria Police on 2 March 2009. Mr Cornelius took over as Chair.⁶⁵³

Witness protection and civil litigation

At its 22 January 2009 meeting, the Petra Taskforce Board of Management was informed that Ms Gobbo’s application was submitted to the Witness Security Unit and she had written a letter outlining her needs and requirements for participation in the Witness Protection Program.⁶⁵⁴ She provided documentation to support her claims that she had lost the chance of ‘becoming a QC and being appointed to a Court in a few years’ time’.⁶⁵⁵

Mr Findlay (Fin) McRae, Executive Director of Legal Services, engaged the VGSO on behalf of Victoria Police on 23 January 2009 to assist with negotiations.⁶⁵⁶

Discussions about her entering the Witness Protection Program continued between Victoria Police and Ms Gobbo, with Mr Overland kept informed of progress; or rather, the lack of it.⁶⁵⁷

On 4 June 2009, then Deputy Commissioner Kieran Walshe signed a letter to Ms Gobbo, prepared by the VGSO and reviewed by Mr McRae and Inspector Geoffrey Always of the Witness Security Unit, that insisted she enter the Witness Protection Program, listing threats to her and her family and the high risk to their safety. It required her to first enter a memorandum of understanding detailing the protection and assistance to be provided.⁶⁵⁸ Mr McRae and Mr Wilson delivered the letter to Ms Gobbo the next day. Mr McRae told the Commission he had the impression she would never enter witness protection.⁶⁵⁹

At around this time, advice was sought from barrister Mr Peter Hanks, QC regarding potential payments to Ms Gobbo and whether PII could prevent disclosure of this.⁶⁶⁰ On 5 August 2009, the VGSO emailed the Witness Security Unit and Mr McRae with Mr Hanks’ advice, which indicated that PII could not prevent disclosure of the terms of financial assistance during cross-examination.⁶⁶¹

An extraordinary ‘urgent’ meeting, of the Petra Taskforce Board of Management was called later that morning.⁶⁶² Mr Steven Smith noted Ms Gobbo was ‘refusing to budge’ on her demands regarding entering witness protection and was ‘making noises’ about not giving evidence on medical grounds.⁶⁶³ They also discussed compensation and Mr Hanks’ advice.⁶⁶⁴

On 26 August 2009, Mr Walshe signed a second letter seeking Ms Gobbo’s urgent acceptance of an offer to participate in the Witness Protection Program.⁶⁶⁵ It was delivered the next day and offered financial assistance of $1,000 per week towards her living expenses.⁶⁶⁶

On 7 September 2009, at the start of a Petra Taskforce Board of Management meeting, Mr Steven Smith gave Mr Cornelius a copy of a letter from Ms Gobbo to Mr Overland⁶⁶⁷ threatening legal action by 14 September 2009.⁶⁶⁸ The letter asserted that:

• Ms Gobbo had provided unprecedented assistance to Victoria Police from 2005 to 2009, leading to the prosecution of numerous organised crime figures.
• She was concerned that a PII claim would expose her as a human source.
• She was concerned that her previous and current assistance to Victoria Police should not be disclosed.

Mr Overland, Mr Cornelius and Mr Smith were, at least by 7 September 2009, clearly on notice of the nature and extent of Ms Gobbo’s assistance to Victoria Police. Armed with this information, and taking into account their ranks and responsibilities, their failure to explore and address the obvious issues and risks raised—which in their evidence they often said ‘would be’ of concern—seems grossly unsatisfactory.

Mr Overland told the Commission that he would have seen this letter and was cognisant of the length of time Ms Gobbo had been informing and the cases in which she had been involved. He thought it inevitable her role would be discovered if it had not been already.⁶⁶⁹ In his responsive submissions, however, he disagreed with the proposition that upon reading the letter he would have been aware that Ms Gobbo’s role had not been disclosed previously during legal proceedings. He noted he was very busy as Chief Commissioner and that it had been referred to Mr McRae to deal with and could be read consistently with disclosure having been properly made.⁶⁷⁰

Mr Cornelius told the Commission he did not have time to read Ms Gobbo’s letter of 7 September 2009 because he received it just before the Petra Taskforce Board of Management meeting.⁶⁷¹ He recalled Mr Smith briefing the Board on the content of the letter, and agreeing that Mr McRae would prepare a response. He claimed not to remember reading the letter after the meeting and agreed that the matters referred to in it would have ‘leapt out at him’.⁶⁷² He did not recall any detailed involvement in developing the response, relying on Mr McRae and the VGSO for this.⁶⁷³ Mr Cornelius raised similar issues in his responsive submissions.⁶⁷⁴

Given Mr Cornelius’ senior role, it is likely he read and understood the effect of the letter, particularly as he attended meetings at the Chief Commissioner’s office the next day,⁶⁷⁵ the VGSO the following day,⁶⁷⁶ and on 14 September 2009 another meeting with Mr McRae, Mr Smith and the Witness Security Unit,⁶⁷⁷ the same day Mr Walshe signed Victoria Police’s third letter to Ms Gobbo.⁶⁷⁸

The Commission is satisfied Mr Cornelius probably read the letter, and if he did not, he should have.

Given the letter’s terms, Mr Cornelius’ experience, his position as head of the ESD and his legal qualifications, the Commission is satisfied he must or should have appreciated that Ms Gobbo’s role as a human source had not then been exposed during any legal proceedings. He should have immediately ensured that proper measures had been or were taken, so that Victoria Police met all disclosure obligations to those whose cases required it. At a minimum, he should have obtained legal advice, easily accessible through his regular contact with Mr McRae and the VGSO.

Mr McRae told the Commission he made hand-written annotations on the letter and scanned it with a view to understanding why Ms Gobbo was threatening to sue Victoria Police but did not read it ‘word for word’.⁶⁷⁹ He claimed not to recall reading the references to her ‘previous unprecedented assistance (2005–09)’ at this time; if he did, he said he ascribed no significance to it. He understood that Ms Gobbo’s assistance was limited to her role as a Petra Taskforce witness and had been told she had a tendency to exaggerate.⁶⁸⁰ In responsive submissions, Mr McRae raised similar issues, adding that the meeting on 9 September 2009 with Mr Cornelius, VGSO and others to discuss how to respond to the letter, was focused on her safety.⁶⁸¹

As Victoria Police’s most senior in-house lawyer involved in drafting the response to Ms Gobbo’s letter and given his annotations on the letter and its astonishing content, the Commission is satisfied Mr McRae probably read the letter carefully and sought instructions about her claim of giving ‘previous unprecedented assistance’ from 2005 to 2009. If he did not, he should have.

During October and November 2009, negotiations with Ms Gobbo about the Witness Protection Program continued. On 9 October 2009, Mr Wilson and Mr Smith agreed with Ms Gobbo and her lawyer to negotiate her loss of earnings claim.⁶⁸² Later that month, she provided a draft memorandum of agreement that referred to her assisting Victoria Police beyond the Petra Taskforce⁶⁸³ and her agreement to give evidence in the prosecution of the Chartres-Abbott murder, and perhaps other investigations.⁶⁸⁴

On 16 November 2009, Mr McRae, Mr Cornelius, Mr Smith and a VGSO lawyer discussed this draft memorandum of agreement.⁶⁸⁵ The VGSO file note from the meeting recorded discussion about her other assistance; and that Mr Cornelius made a phone call about her assistance in other matters and instructed them to amend the agreement to refer only to the major matter.⁶⁸⁶ Mr Cornelius told the Commission he could not recall who he had phoned, and that the reference to broader assistance did not trigger further enquiries as he considered it irrelevant to the Witness Protection Program.⁶⁸⁷

Counsel Assisting suggested to Mr McRae that the draft memorandum of agreement indicated that Ms Gobbo’s relationship with Victoria Police was not simply as a witness against Mr Dale. He responded that he was told Ms Gobbo was ‘prone to having discussions with police’.⁶⁸⁸ Asked whether he enquired about what other assistance she was providing, he replied that Mr Cornelius had ‘nipped it in the bud’, confining the draft agreement back to the major matter.⁶⁸⁹ Mr McRae told the Commission that the situation of getting this information was a ‘jigsaw puzzle’, where ‘everyone has a part of the puzzle’:

The VGSO are dealing with bits and pieces of public interest immunity applications. The investigators are dealing with their parts in the investigation and it seems that no one is across everything, even Luke [Cornelius], who to me just is incredible, has an incredible capacity to keep across things, takes copious notes and is very particular.⁶⁹⁰

On 16 December 2009, the VGSO drew Mr McRae’s attention to a recent decision in R v Moti,⁶⁹¹ where the court granted a permanent stay of proceedings because AFP payments to members of the alleged victim’s family, who were prosecution witnesses, had brought the administration of justice into disrepute.⁶⁹² Mr McRae wanted to ensure that Mr Overland and Mr Ashton were aware of the similarities between the conduct explored in R v Moti and payments to Ms Gobbo, and perhaps others, such as those made to Mr Williams.⁶⁹³

Mr McRae conferred with the then DPP, Mr Jeremy Rapke, QC, on the R v Moti issue, and also received advice from Mr Hanks.⁶⁹⁴ Mr McRae told Ms Gobbo’s lawyers on 4 January 2010 that Victoria Police could not progress discussions regarding final compensation for Ms Gobbo’s loss of income while she was a witness, but would continue to provide a ‘retainer’ ($1,000 a month living expenses).

On 20 January 2010, Mr Cornelius and Mr McRae met with Mr Rapke, who advised that the only acceptable payments to witnesses were to cover subsistence living expenses and Ms Gobbo should be told to enter the Witness Protection Program on Victoria Police’s terms or not at all.⁶⁹⁵

Mr Paul Dale’s subpoena

On 27 January 2010, Mr Dale served a subpoena on the Chief Commissioner requiring the production of all documents concerning Ms Gobbo and any agreement with police to provide inducements to her giving evidence.⁶⁹⁶ The VGSO and Mr Gipp thought the broadly cast subpoena would likely capture documents about payments and witness protection negotiations, and advised to claim PII on yet undefined grounds.⁶⁹⁷ On 8 February 2010, Ms Gobbo’s solicitors wrote to the VGSO demanding a copy of the Dale subpoena.⁶⁹⁸

Over the following weeks, Victoria Police, with involvement of Mr McRae and Mr Cornelius, negotiated with Mr Dale’s lawyer about the subpoena.⁶⁹⁹ Police foreshadowed PII claims over many documents.⁷⁰⁰ On 19 February 2010, Mr Gipp told Mr Dale’s lawyer he anticipated the defence would receive only one folder of additional documents. Mr Dale’s lawyer was surprised and concerned about the police redactions. Mr Gipp said he had instructed police to be circumspect and only make genuine claims, and that if there was a dispute, the magistrate would be provided with the material. With Ms Gobbo’s credit as a very live issue, Mr Dale’s lawyer foreshadowed debate about redactions.⁷⁰¹

On 26 February 2010, Ms Gobbo’s lawyers, equally concerned about disclosure, wrote to:

• the OPP stating that she was medically unfit to give evidence⁷⁰²
• the VGSO, stating that she no longer wanted to participate in the Witness Protection Program and demanded Victoria Police pay her the promised compensation.⁷⁰³

Mr Cornelius was concerned that these demands may impact on her credit as a witness in Mr Dale’s upcoming committal,⁷⁰⁴ and on 1 March 2010 he, Mr McRae and Mr Smith met with the DPP. Mr Cornelius told the Commission he could not recall any discussion about Ms Gobbo’s identity as a human source.⁷⁰⁵

The Commission considers that Mr Cornelius and Mr Smith knew that there was a more significant issue relating to Ms Gobbo’s credit than compensation. This was an opportunity that neither officer took to fully disclose to the DPP and VGSO Ms Gobbo’s broader involvement with Victoria Police or to obtain advice about what disclosure needed to be made to other people affected by it.

Concerns about disclosure

Mr Dale’s lawyer wrote to the VGSO on 1 March 2010, querying the paucity of material in response to the subpoena, the substantial redactions and unproduced documents, particularly letters from Ms Gobbo to the VGSO. He confirmed the credit of Ms Gobbo and Mr Williams were central issues for the defence, who would be seeking every document relating to discussions and negotiations between Ms Gobbo and Victoria Police regarding the Dale investigation and her agreeing to give evidence.⁷⁰⁶

The VGSO sent the letter to Mr Gipp, who forwarded it to Mr Davey of the Petra Taskforce to coordinate a response, expressing concern that if there were documents Victoria Police had not told him about, it would look like Victoria Police was hiding material from the defence.⁷⁰⁷ Mr Davey sent it to Mr Steven Smith noting Mr Gipp’s concerns, and querying whether Mr Overland may have notes regarding negotiations with the Australian Taxation Office (a specific matter in contention).⁷⁰⁸ Mr Davey’s email reached, among others, Mr Overland, who replied that he had no documents fitting that description.⁷⁰⁹

In his responsive submissions, Mr Overland contended that he was not ‘very aware’ of other relevant documents in the form of letters from Ms Gobbo regarding negotiations that should have been provided to Mr Gipp.⁷¹⁰

While Mr Overland may have read this query as being limited to Australian Taxation Office documents, the email and attached letter made clear that Mr Dale was seeking a much wider category of documents and that Mr Gipp wanted all relevant material. Mr Overland was certainly aware of other documents highly relevant to Ms Gobbo’s credit, including Ms Gobbo’s correspondence with him about her negotiations with Victoria Police. Mr Overland should have provided these and the other relevant documentation concerning Ms Gobbo in the possession of Victoria Police to Mr Gipp for PII assessment. Had he provided this material, it is likely that Ms Gobbo’s role with Victoria Police as a human source would have been exposed and dealt with earlier.

Having considered those submissions, given Mr Overland’s then role as Chief Commissioner with ultimate responsibility for complying with disclosure subpoenas, his considerable knowledge of and involvement in the matter, and his legal training, the Commission finds that he failed in ensuring Victoria Police met its disclosure obligations.

Committal commences and human source file sought

On 9 March 2010, the committal for Mr Dale and his co-accused, Mr Rodney Collins, commenced.⁷¹¹ The Magistrate stood the matter down for the parties to negotiate an outcome on PII claims based on witness safety and informer privilege.⁷¹² Mr Gipp told the Court that agreement had been reached on some things and they would attempt to further narrow the materials subject to PII claims and produce those documents with a confidential affidavit.⁷¹³

On 10 March 2010, after consulting Victoria Police policies, Mr Dale’s lawyer told Mr Gipp that, as Victoria Police was relying on informer privilege in their PII claims over relevant material, Ms Gobbo must have a human source file. Mr O’Connell told Mr Gipp she been a registered human source beforehand and there was probably a source file, but that those matters were not relevant to Mr Dale’s prosecution. Mr Gipp asked Mr O’Connell to check whether there was a human source file.⁷¹⁴

In responsive submissions, Mr O’Connell stated that he responded to Mr Gipp’s questions quickly and efficiently and having identified that the file existed and contained relevant material, he immediately told Mr Gipp and sought his advice.⁷¹⁵ The Commission notes, however, that Mr O’Connell had spoken to Ms Gobbo about her history on 7 January 2009; he should have known then that there could be material highly relevant to Ms Gobbo’s credit, and discussed this with Mr Gipp earlier.

Following his discussion with Mr Gipp, Mr O’Connell met with Mr White and Mr Steven Smith on 10 March 2010. Mr White’s diary entry noted his view that if Ms Gobbo was not planning to give evidence due to health concerns (which she had raised), discussing PII issues was a waste of time. Nonetheless, Mr Steven Smith was to make a written request to Mr Porter, and the SDU would search for references to Mr Dale.⁷¹⁶ It also noted that the defence was entitled to know if she made prior inconsistent statements and that:

Revealing fact that HS was a HS several years prior to involvement with Petra will compromise same and confirm her police assistance at the time of the MOKBEL investigation.⁷¹⁷

Mr O’Connell’s diary note of the meeting included ‘Insist on non-disclosure of all material re PII—identify F’ (Ms Gobbo).⁷¹⁸

Mr Gipp later rang Mr Dale’s lawyer and told him that further documents had been identified but did not confirm that a human source file had been located.⁷¹⁹

On 11 March 2010, Mr Steven Smith emailed Mr Porter, Superintendent of the HSMU, copying in Mr O’Connell, explaining the situation, and requesting access to Ms Gobbo’s human source file so that the Petra Taskforce could negotiate any production, redacted or otherwise, indicating he would bring it to the attention of the ‘Steering Committee’.⁷²⁰

Mr Steven Smith’s diary recorded later that day he spoke to and updated Mr Cornelius on matters including the human source file.⁷²¹ In his evidence to the Commission, he said he would have told Mr Cornelius about the defence request for the file and that he had spoken with Mr White and the HSMU about it.⁷²² The following day, Mr Smith met with Mr Cornelius and Mr McRae to update them on the Dale committal, subpoena and a suppression order application regarding Ms Gobbo. He told the Commission they were aware that Ms Gobbo had been a registered human source and that this may have an impact on her evidence. He accepted that his meeting with Mr White showed there had been no effort before the committal to obtain relevant documents from the SDU.⁷²³ He recalled that during this period, there was discussion about whether Ms Gobbo’s human source status needed to be disclosed, possibly at the Petra Taskforce Board of Management meeting.⁷²⁴

Mr Cornelius said he had no recollection or records of an issue relating to Ms Gobbo’s human source file being raised with him.⁷²⁵

At the end of March 2010, barrister Ms Lucia Bolkus, who police had retained to assist with the matter, reminded Mr O’Connell of Victoria Police’s disclosure obligations. In response to an email from Mr O’Connell stating that police do not comment on the existence of a human source file and asking her to contact Mr Dale’s lawyer to ascertain exactly what type of material he was looking for,⁷²⁶ Ms Bolkus replied:

Shane and Greg

Any conversations between [Ms Gobbo] and police relevant to “any disclosures made by [Ms Gobbo] in relation to Paul Dale and the Hodson murders” do come within the terms of the subpoena.

That is what the defence are entitled to.

Lucia.⁷²⁷

On 31 March 2010, Mr White told Mr O’Connell the SDU material was ready for PII assessment by the Petra Taskforce. Mr O’Connell responded that the SDU’s material was not currently required as the defence had been directed to specify exactly what they wanted in new subpoenas. He thought there was a possibility that records relating to only Ms Gobbo’s witness management might satisfy the new request.⁷²⁸ Mr O’Connell told the Commission he could not recall the meeting with Mr White.⁷²⁹

This exchange reflects Mr O’Connell’s and Victoria Police’s unsatisfactory approach to their disclosure obligations, despite being given clear and recent advice by Ms Bolkus as to what was required.

The committal proceedings against Mr Dale and Mr Collins recommenced on 12 April 2010, but on 19 April 2010, the prosecution’s star witness, Mr Williams, was murdered.⁷³⁰ On 7 June 2010, the murder charges against Mr Dale and Mr Collins were formally withdrawn.⁷³¹

Mr Dale’s legal representatives had come close to exposing some of the truth about Ms Gobbo’s relationship with Victoria Police. The Commission considers that, had Mr Dale’s committal proceeding continued, disclosure arguments about Ms Gobbo’s role as a human source with Victoria Police would have been raised, at least with Victoria Police’s lawyers and the court. The disclosure issues ultimately decided by the AB v CD proceedings may have been determined in 2010 rather than 2018.⁷³²

Briars Taskforce

In 2007, Ms Gobbo was also involved in another high-profile investigation involving allegations of police corruption, the Briars Taskforce, as discussed below.

On 4 June 2003, Mr Shane Chartres-Abbott was murdered as he left his home to attend court. He was facing serious charges of sexual violence. The media had labelled Mr Chartres-Abbott the ‘vampire gigolo’ because of the details of his alleged offending.⁷³³

Around May 2006, convicted gangland murderer, Mr Gregory (a pseudonym), told police he shot Mr Chartres-Abbott and implicated others, including Mr Evangelos Goussis, Mr Warren Shea and Mr Mark Perry, the boyfriend of Chartres-Abbott’s alleged victim.⁷³⁴ In early 2007, he also implicated former police officer, Mr Waters, and serving officer, then Detective Sergeant Peter Lalor, alleging:

• Mr Lalor gave him Mr Chartres-Abbott’s address through Mr Waters
• Mr Waters and Mr Lalor knew he intended to kill Mr Chartres-Abbott when they provided the information
• Mr Lalor executed a search warrant on him on the day of the murder to provide him with an alibi.⁷³⁵

Investigators would have known they needed persuasive corroboration of Mr Gregory’s statements, as he was a career criminal with a reputation for being manipulative.⁷³⁶

Ms Gobbo had social and professional relationships with key players in the investigation. On 1 April 2007, she told the SDU she had met Mr Waters at the South Melbourne Anglers Club and he expressed concern about what Mr Gregory was saying.⁷³⁷

Establishment of Briars Taskforce

Before any suggestion of police involvement in the Chartres-Abbott murder, the Purana Taskforce was investigating it through Operation Clonk.⁷³⁸ Over January and February 2007, Victoria Police assembled the Briars Taskforce. Ms Nixon raised the need for it to have access to legal advice and Mr McRae briefed the VGSO.⁷³⁹ This suggested that, consistent with her evidence, had Ms Nixon known of the risks posed by police’s use of Ms Gobbo as a human source, she would also have sought legal advice.⁷⁴⁰

The question whether Mr Overland told Ms Nixon that Ms Gobbo was a human source was contested. Ms Nixon told the Commission she did not recall knowing that Ms Gobbo was a human source until it was made public.⁷⁴¹ Mr Overland initially agreed he did not tell her about Ms Gobbo’s role as a human source but when his missing diaries emerged, he found a diary note of 29 September 2005, which recorded that he told Ms Nixon about ‘3838’; he therefore thought he did tell her.⁷⁴² The Commission accepts the accuracy of the diary entry, but it reveals only that they had a conversation about 3838. It is not possible to conclude whether Mr Overland told her the identity of 3838 or that they were a criminal defence barrister, although it would seem likely that Ms Nixon would have recalled such an extraordinary revelation.

Once police involvement was alleged, the OPI and Victoria Police discussed a joint operation to investigate this matter.⁷⁴³ On 26 February 2007, Ms Nixon, Mr Overland and Mr Cornelius met with the then Director of the OPI, Mr George Brouwer, and Assistant Director of the OPI, Mr Ashton, and agreed to take a joint approach to the investigation.⁷⁴⁴

On 22 March 2007, Mr Cornelius and Mr Ashton signed the Briars Taskforce Joint Agency Agreement on behalf of Victoria Police and the OPI. It included a Board of Management comprising Mr Overland, Mr Cornelius and Mr Ashton, that was to meet weekly and coordinate the operation, enhance cooperation and monitor results.⁷⁴⁵

Mr Ashton stopped keeping a contemporaneous hand-written diary from 21 February 2007 until 2 July 2008. He outlined his reasoning:

In light of recognition of weaknesses in OPI subpoena provisions. I took a decision not to retain an official diary until the matter was clarified. That was done on 1 July ’08. Now that OPI has adequate subpoena protection I will resume my official diary. For matters in the intervening period I refer to correspondence and my electronic diary.⁷⁴⁶

As Mr Ashton stated, in 2008 the law was changed to address the concerns about OPI subpoena provisions. The Commission notes, however, that the Minister’s second reading speech to the amending legislation stated that the OPI could claim common law PII; consequently, the OPI was not without protection.⁷⁴⁷ There was no evidence before the Commission that other OPI officers involved in the Briars Taskforce stopped making contemporaneous notes and/or a handwritten diary.⁷⁴⁸

In responsive submissions, Mr Ashton contended that the gaps in the legislative framework before the 2008 amendments were a ‘good reason’ to stop keeping a diary.⁷⁴⁹ While he accepted that a PII claim could have been made under the common law, he said the fact that the legislation was amended demonstrates that there was a reasonable and rational basis for his conduct,⁷⁵⁰ and that he was acting in good faith when he stopped keeping a diary.⁷⁵¹

Mr Ashton also claimed that his decision not to keep a diary during this period fell outside the Commission’s terms of reference.⁷⁵² As noted above, the Commission cannot inquire into or exercise its coercive powers over the OPI or its former officers.⁷⁵³ Mr Ashton’s conduct as part of the Briars Taskforce Board of Management, however, is highly relevant to, and intertwined with, the conduct of Victoria Police officers and the use and management of Ms Gobbo as a human source. This is because the decisions made by the Briars Taskforce Board of Management involved senior Victoria Police officers and directed the conduct of the many officers who reported to it.

After considering Mr Ashton’s submissions and evidence,⁷⁵⁴ the Commission concludes that his contemporaneous notes and electronic diary during this period concerning the Briars Taskforce Board of Management did not always amount to adequate record keeping. His important office required him, in the interests of accountability and transparency, to accurately record his actions in a timely way so that he could later properly report on them. It would be for a court to determine whether disclosure of those diary notes was contrary to the public interest. It appears to the Commission that Mr Ashton was not justified in ceasing to keep contemporaneous diary notes concerning an ongoing investigation that he was overseeing. This is regrettable, as it may have meant that matters that should have been disclosed were not, even to a court determining PII claims.

The tasking of Ms Gobbo

The Briars Taskforce’s interest in Ms Gobbo began in April 2007 when Detective Inspector Stephen (Steve) Waddell discovered she was in contact with Mr Waters.⁷⁵⁵ At this stage, the SDU was looking to ease her out.⁷⁵⁶ In July 2007, Mr White and Detective Senior Sergeant Ronald (Ron) Iddles, OAM, APM discussed the viability of tasking her to give Mr Waters information.⁷⁵⁷

In early September 2007, SDU and Briars Taskforce officers further discussed plans to use Ms Gobbo to pass information to Mr Waters.⁷⁵⁸ Around this time, Ms Gobbo and Mr Waters were in contact, first at Ms Gobbo’s and then at Mr Waters’ instigation regarding his summons to an OPI examination the following week.⁷⁵⁹ Ms Gobbo suspected that he would seek her advice after the hearing.⁷⁶⁰ On 10 September 2007, following further discussions, Mr Iddles emailed Mr White requesting that Ms Gobbo pass on to Mr Waters information that Mr Gregory:

• would be charged with a murder related to a ‘vampire’
• made a statement implicating Mr Waters and Mr Lalor in preparing for the murder
• mentioned something about Mr Waters and Mr Lalor providing him with an address, and investigators were confident of charging them if they found the computer database source.⁷⁶¹

The SDU tasked Ms Gobbo on 12 September 2007⁷⁶² and she reported the next day that she had passed on the information.⁷⁶³ Further tasking occurred in October 2007.⁷⁶⁴ This included Ms Gobbo telling Mr Waters that investigators met with Mr Gregory at least once a fortnight.⁷⁶⁵

At the end of October 2007, Ms Gobbo told her handler that Mr Waters was thinking of preparing a statement to read out if he was interviewed.⁷⁶⁶ Ms Gobbo reviewed Mr Waters’ ‘full denial’ statement, first in-person and then on 7 November 2007 when he emailed it to her marked, ‘CONFIDENTIAL!!!!!!’.⁷⁶⁷ The SDU officers told her that they did not want a copy of this document and they would not pass it on to investigators as it could form part of Mr Waters’ defence, wisely rejecting her claim that he gave it to her only as a friend.⁷⁶⁸

Media leaks

In 2007, the Briars Taskforce investigation was burdened by various unwanted leaks to the media. An OPI investigation determined that these occurred when the then Media Director of Victoria Police, Mr Stephen Linnell, passed confidential information to Assistant Commissioner Noel Ashby, APM, who provided it to fellow officer and Secretary of The Police Association, Paul Mullett, APM.⁷⁶⁹

The OPI informally interviewed Mr Overland and Mr Cornelius about these leaks⁷⁷⁰ but was not told that Ms Gobbo was a human source or that she had been tasked by the Briars Taskforce to leak what might otherwise be regarded as confidential information to Mr Waters.⁷⁷¹

Briars Taskforce speaks with Ms Gobbo

On 25 January 2008, Ms Gobbo reported to her SDU handler that Mr Waters had spoken to her about his prospective interview with the Homicide Squad, and that if charged, he would ring her for legal representation.⁷⁷² Despite Ms Gobbo’s earlier insistence she was his friend not his lawyer, this should have indicated to the SDU that Mr Waters seemed to regard Ms Gobbo as a lawyer who would provide him with legal advice.⁷⁷³

By late 2008, the Briars Taskforce investigation had largely petered out⁷⁷⁴ but on 16 March 2009, its Board of Management reconvened because a potential witness had come forward.⁷⁷⁵ In March 2009, Mr Waddell contacted Mr O’Connell (who was now managing Ms Gobbo for the Petra Taskforce) about the Briars Taskforce obtaining a statement from her. Mr O’Connell said this would occur at the appropriate time.⁷⁷⁶

Mr Waddell presented an updated Briars Taskforce investigation plan to the Board of Management meeting on 6 April 2009.⁷⁷⁷ In developing the plan, he spoke with Mr White, who emphasised the SDU did not want any link back to Mr Gobbo’s ‘historical activities’ as ‘it obviously opens up a whole can of worms’.⁷⁷⁸

During March and April 2009, Mr Waddell met with the SDU officers regarding access to their holdings on Ms Gobbo’s contact with Mr Waters.⁷⁷⁹ On 24 April 2009, they gave him a 43-page document containing all references to Mr Waters in Ms Gobbo’s ICRs.⁷⁸⁰ On 5 May 2009, Mr Cornelius recorded in the Petra Taskforce Board of Management meeting notes that the Briars Taskforce statement had been ‘pencilled in’ at a ‘neutral venue’.⁷⁸¹ On 20 May 2009, Mr Cornelius approved Mr Waddell and Mr Iddles travelling to Bali, where Ms Gobbo was holidaying, to take the statement.⁷⁸²

They took Ms Gobbo through information she provided in January 2008 and, with this and the 43-page SDU document, drafted a statement.⁷⁸³ One section was problematic. In 2008, Ms Gobbo had claimed that Mr Valos told her he had heard that that Mr Lee Perry confessed to the murder,⁷⁸⁴ a contention the investigators had largely debunked. By contrast, in May 2009 in Bali she told Mr Iddles and Mr Waddell that she herself heard Mr Perry confess.⁷⁸⁵ On 27 May 2009, Mr Cornelius was advised that Ms Gobbo’s statement was gaining strength and that she had received three death threats by text over the past 24 hours from a SIM card in a false name.⁷⁸⁶ Mr Cornelius briefed Mr Overland, Mr Wilson and Mr McRae.⁷⁸⁷

Mr Waddell and Mr Iddles were concerned that, if Ms Gobbo became a witness, her role as a human source would be exposed in court proceedings. They sought advice from the Briars Taskforce Superintendent Mr Wilson, who instructed Mr Waddell to take the statement, explaining that this direction came from Mr Overland.⁷⁸⁸ While Mr Waddell was expressing his concerns to Mr Wilson, Ms Gobbo told Mr Iddles about her extensive assistance to Victoria Police, including solving the gangland murders and the seizing of $63 million of Mokbel assets.⁷⁸⁹ Mr Iddles thought that if they took her statement and her role was exposed, there was a ‘possibility of it all blowing up and ending in a Royal Commission’.⁷⁹⁰

Source Development Unit concerns about exposing Ms Gobbo

On his return to Melbourne on 29 May 2009, Mr Iddles met with Ms Gobbo’s handler, Mr Black, whose diary note recorded they discussed Ms Gobbo’s likely exposure as a human source if she became a witness⁷⁹¹ and the concerns that ‘disclosure’ would ‘initiate a Royal Commission with perceived unsafe verdicts’ and that ‘current arrests HS involved with may be subject to review’.⁷⁹²

No such alarm bells were ringing for Mr Cornelius. His notes from the 1 June 2009 Briars Taskforce Board of Management meeting included that Ms Gobbo’s statement, while containing sufficient evidence to charge both Mr Perry and Mr Waters, had issues. Her latest version differed from her initial version. He noted that Mr Waddell wanted access to further SDU holdings before the statement could be settled.⁷⁹³ Mr Waddell emailed Mr Cornelius that night, referring to the vast quantity of material provided by this source and seeking further filtering by specific names and locations.⁷⁹⁴ Mr Cornelius, who told the Commission that at this time he thought Ms Gobbo’s assistance was limited to the Briars Taskforce, said this did not raise any concern that she might have provided information beyond this.⁷⁹⁵

Mr Black raised concerns about the consequences of Ms Gobbo’s exposure as a human source should she become a witness for the Briars Taskforce with his Inspector, Mr Glow, on 2 June 2009.⁷⁹⁶ Concerns grew when they learned further SDU holdings were to be provided to the Taskforce.⁷⁹⁷

On 9 June 2009, Mr Porter discussed these matters with Mr Moloney to ensure the executive group understood the implications of their proposed course of action with Ms Gobbo.⁷⁹⁸ They agreed to elevate the discussion and the following day senior officers for the Briars Taskforce and the HSMU met.⁷⁹⁹ Mr Porter told the Commission that he spoke to a document, prepared by Mr Black, which raised similar issues to the earlier Petra Taskforce SWOT analysis.⁸⁰⁰

On 15 June 2009, Mr Porter and Mr Biggin met with SDU officers, with Mr Biggin recording that Mr Porter would persuade the Briars Taskforce Board of Management that Ms Gobbo making a statement was ‘a dangerous decision’ that could bring ‘potential harm’ to Victoria Police and that any ‘PII application would probably fail given the circumstances surrounding’ Ms Gobbo.⁸⁰¹

In responsive submissions, Mr Porter stated he was involved in discussions between 2 and 15 June 2009 regarding the prospect of Ms Gobbo giving a statement to the Briars Taskforce and wanted to convey his concern about her being a witness to those making decisions about the Taskforce. He also contended that he briefed the Briars Taskforce about his concerns for Ms Gobbo’s safety. Mr Porter was disappointed that his recommendation was not accepted.⁸⁰² He emphasised he was not aware of the specific information being provided by Ms Gobbo to the SDU and was satisfied the SDU was cognisant of and managing risks. Mr Porter said he had no reason to reconsider Ms Gobbo’s initial risk assessment or to think that due process had not been followed. Further, he submitted that he had no oversight of Purana Taskforce investigations and the sterile corridor prevented him from obtaining information that was not within his line control.⁸⁰³

After considering the available evidence and Mr Porter’s responsive submissions, the Commission is satisfied that by June 2009, he was aware that Ms Gobbo was a criminal defence barrister acting as a human source for Victoria Police, of his responsibilities to Ms Gobbo as the LSR of the HSMU and the CSR, andof the extraordinary risks associated with her role with Victoria Police.

It follows that Mr Porter understood or should have understood that past convictions may have been obtained on evidence gathered from information provided by Ms Gobbo as a human source and that a court informed of all relevant facts may rule this evidence inadmissible if it rejected Victoria Police PII claims. He should also have understood that these issues had not yet been disclosed to, and therefore had not yet been determined by, a court.

Having considered the evidence, the Commission considers that Mr Porter seems to have failed in his duty as LSR of the HSMU and as CSR to appropriately oversee the SDU’s management of Ms Gobbo as a human source.

The Commission recognises that Mr Porter reported his concerns to his superior officers, but it is not possible on the evidence before the Commission to determine the details of that reporting. The information in those briefings may limit Mr Porter’s responsibility, and similar or more serious findings may be open against those officers.

Legal advice not acted upon

In July 2009, barrister Mr Maguire appeared for Victoria Police in the Supreme Court in relation to a subpoena issued on behalf of Mr Tony Mokbel for another matter, but which may have captured Ms Gobbo’s draft statement to Briars.⁸⁰⁴ The judge rejected the police argument that the identities of potential witnesses in the Chartres-Abbott murder investigation (Mr Gregory, Ms Gobbo and another) were too sensitive to reveal, even to the court.⁸⁰⁵ Victoria Police did not disclose that one of these potential witnesses was a criminal defence barrister acting as a human source. The matter was adjourned.

In early July 2009, Mr White gave Mr Waddell the additional SDU holdings⁸⁰⁶ and Mr Waddell produced a document outlining issues arising from that material. This included grave credibility issues arising from the differences in Ms Gobbo’s accounts between January 2008 and her May 2009 draft statement; whether Ms Gobbo was acting as Mr Waters’ lawyer; her eagerness to assist police; and the risk of exaggeration.⁸⁰⁷

Mr Cornelius approved Mr Waddell’s request to brief Mr Maguire for advice on the admissibility of aspects of Ms Gobbo’s statement, including in relation to questions of legal professional privilege.⁸⁰⁸ It appears advice was also sought on the prospect of protecting Ms Gobbo’s identity in her draft statement from disclosure in the Briars and Petra Taskforce matters, should they not be relied on.⁸⁰⁹

The update for the Briars Taskforce Board of Management of 21 September 2009 included:

Current advice from [Mr Maguire] is that witness past will probably be declared to the court at a minimum in prosecution of Dale.

If Perry is charged with murder it is probable that extent of witness assistance will be known.⁸¹⁰

In its responsive submissions, Victoria Police contended that there is no evidence as to the content of Mr Maguire’s advice and that it does not appear to have been provided in writing.⁸¹¹ It submitted that it could therefore not be accepted that the effect of Mr Maguire’s advice was that disclosure of Ms Gobbo’s statement, at a minimum, was required in the prosecution of Mr Dale.

That may be so, but Victoria Police appeared to make no attempts to follow up with Mr Maguire as to what disclosure was required given his view that the ‘extent of witness assistance will be known’, even though:

• Mr Moloney knew of Ms Gobbo’s role assisting the Purana, Briars and Petra Taskforces
• Mr Ashton knew that her assistance was not limited to the Petra and Briars Taskforces, given his agreement that she would not be called in OPI’s Operation Khadi
• Mr Cornelius knew or should have known that her assistance to Victoria Police extended not only to the Petra and Briars Taskforces but also to Purana Taskforce (Mr Cornelius’ knowledge and actions are examined earlier in this chapter).

As noted above, in September 2009, Victoria Police briefed Mr Gipp in relation to subpoenas in the Petra Taskforce’s prosecution of Mr Dale and Mr Collins.⁸¹² The co-informants, Mr Solomon and Mr Davey, then handled most day-to-day processes in relation to those subpoenas.⁸¹³ As neither officer knew of Ms Gobbo’s human source history, perhaps conveniently for some, they could not provide meaningful instructions to Mr Gipp.⁸¹⁴ Further, the evidence before the Commission does not indicate that Mr Gipp was ever apprised of Ms Gobbo’s Briars Taskforce statement or of Mr Maguire’s advice about it.⁸¹⁵

The Commission considers that Victoria Police’s lack of candour, from the SDU officers and supervisors through to the Boards of Management of the Briars and Petra Taskforces (whether deliberate or inept, and whether to protect Ms Gobbo, themselves or both) in not informing their own legal representatives, the DPP and the court of all potentially relevant disclosure matters arising from the issuing of subpoenas in the Petra and Briars Taskforce’s prosecutions, was a failure to discharge their duties. Had they done as they should, Victoria Police’s past mistakes would have been exposed and corrected, future mistakes avoided, and the resulting institutional damage more confined.

Civil litigation with Ms Gobbo

On 29 April 2010, Ms Gobbo filed civil proceedings in the Supreme Court against the State of Victoria, Mr Overland and Ms Nixon.⁸¹⁶ The claim related only to her role as a Petra Taskforce witness, not her broader history with Victoria Police as a human source.⁸¹⁷

Victoria Police’s management of these civil proceedings increased the number of people who knew of her role and gave others a deeper understanding of it, including the Victoria Police executive group. Rather than addressing the obvious risks resulting from her use as a human source, those involved seem to have made considerable efforts to conceal her duplicitous role.

Victoria Police confronts its use of Ms Gobbo

Ms Gobbo had threatened legal action in a 7 September 2009 letter to Mr Overland.⁸¹⁸ In addition to her assistance in relation to Mr Dale, this letter referred to her previous unprecedented assistance from 2005, ‘including but not limited to the successful prosecution of numerous significant organised crime figures’.⁸¹⁹ She also stated ‘I need not remind you of the difficulties that Victoria Police may encounter if some or any of my past assistance comes out in the prosecution of Dale’.⁸²⁰ The threat of exposing ‘the difficulties that Victoria Police may encounter’ became a key tactic of Ms Gobbo as civil litigant against police.

Mr Overland instructed the SDU to compile a chronology of its dealings with Ms Gobbo.⁸²¹ SDU officers explained to Mr O’Connor, their new OIC, that the SML contained this information as well as the risks to Ms Gobbo and the SDU were it to be disclosed; in their view it was imperative to limit the number of people who knew she was a human source.⁸²² Mr O’Connor read the SML and appreciated the risk to Ms Gobbo’s safety should her role be exposed.⁸²³

On 5 May 2010, Mr McRae, Superintendent Peter Lardner and Mr Stuart McKenzie, all from the Victoria Police Legal Services Department, formed a steering committee to manage the civil litigation.⁸²⁴ Detective Senior Sergeant Andrew Bona also attended the first meeting, at which they discussed Ms Gobbo’s role as a human source and the need to speak with Mr White.⁸²⁵

On 21 May 2010, Mr Lardner emailed Mr Moloney stating that he required someone with an understanding of the Petra, Briars and Purana Taskforces to fully brief counsel. Mr Moloney, copying in Mr Cornelius, replied that Mr Cornelius was aware of Ms Gobbo’s involvement with the Petra and Briars Taskforces, but not Purana Taskforce.⁸²⁶ Further emails were exchanged, suggesting Mr Lardner meet with Mr Biggin ‘in relation to the covert side of the matter’ and to arrange a meeting between Mr Lardner, Mr Moloney and Mr Cornelius ‘to address the wider issue and get an insight into the history’.⁸²⁷

Mr Cornelius gave evidence to the Commission that he was not concerned at being excluded from knowledge of Ms Gobbo’s involvement with the Purana Taskforce, and that the communications suggesting a criminal defence barrister was assisting Victoria Police in matters where she was representing people did not ring alarm bells.⁸²⁸ This contrasted with Mr Cornelius’ assertions to the Commission that if he had known of such things he would have pulled at the ‘loose thread’ until all the issues were understood.⁸²⁹

In responsive submissions, Mr Cornelius contended that he did not know Ms Gobbo was assisting police in relation to the Purana Taskforce and that he was only aware of Ms Gobbo’s involvement as a witness.⁸³⁰

While that may have been the theoretical intention, given Mr Cornelius’ involvement set out earlier in this chapter, the Commission is unable to accept this contention. Mr Cornelius knew or should have known well before this stage that Purana Taskforce had used Ms Gobbo as a human source. The Commission is not persuaded he deliberately gave false testimony. It may be that he justified his position on the basis of an artificial construct based on his role, what he was required to know and what he did not need to know. In reality, as an experienced officer with legal training, he knew enough to clearly put him on notice of something remarkable—that Ms Gobbo, a criminal defence barrister, was a human source. Knowing this and given his role in ESD, the Commission considers he should have made enquiries to ensure Victoria Police’s use of Ms Gobbo was lawful and ethical.⁸³¹

Meanwhile, concern about the SML was growing. Mr White met with Mr Sheridan and Mr O’Connor. They agreed the SML should not be produced in court, but considered Ms Gobbo may waive informer privilege, potentially leaving insufficient basis for a PII claim.⁸³²

On 27 May 2010, Mr O’Connor emailed Mr McRae and Mr Lardner explaining that the SML contained significant detail as to how several high-profile criminal networks had been brought to justice over a three to four-year period using intelligence from Ms Gobbo.⁸³³ Later that morning, together with Mr Bona, they agreed to meet again in June 2010 when everyone had read the SML.⁸³⁴ Mr Lardner told the Commission that Mr Bona securely stored the SML and he did not recall Mr McRae reviewing it.⁸³⁵

On 3 June 2010, Mr McRae and Mr Lardner briefed Mr Overland and then Deputy Commissioner Sir Kenneth (Ken) Jones, QPM on Ms Gobbo’s civil litigation, noting:

• Ms Gobbo was registered as a human source from 2005.
• There were 225 hours of recorded conversations between Ms Gobbo and her handlers, significantly more than the 48 hours relating to the Dale prosecution.
• Issues included legal professional privilege, discovery, Ms Gobbo’s role in other investigations and OPI review.⁸³⁶

Mr Overland told the Commission that he was concerned that it might be ‘unethical’ and ’not consistent with model litigant principles’ to use the fact that Ms Gobbo was a human source against her in civil proceedings.⁸³⁷ Mr McRae told the Commission that he was prepared to run the matter, that Mr Overland wanted to defend it, and there was no pressure to settle.⁸³⁸

On 24 June 2010, the civil litigation steering committee was advised the defence was drafted broadly so that Ms Gobbo’s history with police could be brought up at trial if necessary, and agreed to attempt to finalise the matter without releasing too much information.⁸³⁹

On 28 July 2010, the VGSO advised Mr Lardner that the State was obliged to make all reasonable efforts to settle the proceeding for a reasonable sum based on counsel’s clear advice the State was probably liable and must act as a model litigant. The VGSO gave advice on a reasonable settlement option.⁸⁴⁰ They recommended an additional sum to avoid exposing sensitive information—scrutiny of Victoria Police procedures for dealing with human sources and associated publicity could be damaging to the organisation and the administration of the criminal justice system, divert resources and incur significant legal costs.⁸⁴¹ The same day, Mr Overland, Mr Cornelius, Mr McRae and Assistant Commissioner Stephen Leane agreed the financial settlement cap.⁸⁴² Because of the quantum, authorisation had to be sought from the Minister for Police and Emergency Services.

Proposed settlement

On 5 August 2010, Mr McRae attended a meeting with the Victorian Government Solicitor, Mr John Cain, and Mr Michael Strong, Director, OPI and Mr Paul Jevtovic, Deputy Director, OPI to discuss the mediation strategy and proposed settlement with Ms Gobbo. Mr McRae said he did this because of the comparatively high value of the settlement and the fact that a barrister was involved; it was not his normal practice to brief the OPI on civil litigation matters.⁸⁴³ Mr McRae took the writ, the defence and the VGSO advice to the briefing; only the advice contained information about Ms Gobbo providing intelligence as a human source. His file note stated that the OPI retained two documents, but he could not recall which two.⁸⁴⁴

In responsive submissions, Mr McRae asserted that all the documents were provided to, and retained by, the OPI, and even if they were not, the purpose of the Victorian Government Solicitor’s attendance was so he could speak to the VGSO’s advice. He noted that while it was not a comprehensive briefing on Ms Gobbo’s history as a human source (which was beyond his knowledge), it was to alert the OPI to Ms Gobbo’s highly irregular status.⁸⁴⁵

On the evidence before the Commission, it is not possible to know exactly what Mr Strong and Mr Jevtovic were told of Ms Gobbo’s role with Victoria Police. Had they been accurately and comprehensively informed of the contents of the advice, it would have been surprising, as the leaders of Victoria Police’s oversight body, if they did not ask for more information and enquire further into Ms Gobbo’s extraordinary dual role as criminal defence barrister and human source. Mr McRae told the Commission the meeting was about settling Ms Gobbo’s litigation, so it is likely that the OPI’s primary concern was to know that there was sound independent legal advice supporting the settlement range proposed.⁸⁴⁶ It is certainly regrettable that Victoria Police, at least by this time, did not squarely and comprehensively brief the OPI about the many serious risks they knew had arisen from Victoria Police’s relationship with Ms Gobbo.

The OPI’s relationship with Victoria Police and Ms Gobbo was complicated and arguably compromised by the joint Petra and Briars operations it had entered into with Victoria Police, both of which involved Ms Gobbo. The participation of the then OPI Deputy Director, Mr Ashton, on the Petra Taskforce Board of Management, which had oversight of decisions ultimately relevant to aspects of the civil litigation, gave rise to at least a perception that the OPI may have been hampered in its ability to provide independent scrutiny of this matter.

The Minister approves the settlement

On 9 August 2010, the Minister for Police and Emergency Services, the Hon Bob Cameron, MP was given a confidential briefing note with Mr McRae’s signature block but signed by Mr Lardner. It referred to Ms Gobbo’s role in relation to Mr Dale, but made no mention of her status and history as a registered human source.⁸⁴⁷ Mr McRae told the Commission he believed that Mr Cain was to facilitate independent advice to the Minister on Ms Gobbo’s human source status; however, Mr Cain provided a sworn statement to the Commission that he was not aware of that status until 2015.⁸⁴⁸

On 10 August, Mr Overland wrote to the Minister seeking authorisation to settle the litigation up to a proposed cap, referring to the confidential briefing note that was supported by advice from senior counsel.⁸⁴⁹ The Minister approved the instrument of authorisation the following day, and the terms of settlement were signed by Ms Gobbo and Victorian Government Solicitor on that same day. The settlement only referred to Ms Gobbo’s status in relation to Mr Dale, not her history as a human source. It included a term that Victoria Police no longer proposed to call her to give evidence in any proceeding and that Petra Taskforce members would not contact her.⁸⁵⁰

In approving the settlement, the Minister asked Mr Overland to advise him of Victoria Police’s strategies to mitigate the risk of such an issue arising again.⁸⁵¹ Mr Overland replied that while there was a ‘complex history to this matter and due to operational and security concerns you will appreciate that I am unable to brief you fully as to the detail’, he would do ‘everything possible to ensure that there was no repeat of such a claim against Victoria Police’.⁸⁵² He noted the appointment of then Assistant Commissioner Jeffrey (Jeff) Pope, Intelligence and Covert Support, to review processes around such high risk undertakings,⁸⁵³ adding that ‘the primary intention at all times had been to ensure the safety of Ms Gobbo’.⁸⁵⁴

In his responsive submission, Mr Overland emphasised that the Minister was more than adequately informed by a briefing paper by the Victoria Police Director of Legal Services, which was supported by senior counsel.⁸⁵⁵ Further, he submitted that the proposition that he did not inform the Minister of the risk posed by the relationship with Ms Gobbo was far greater than that represented by the settlement figure was not put to him in the hearing.⁸⁵⁶

The Commission considers Mr Overland’s response unsatisfactory. While operational and safety concerns are rightly front of mind for a Chief Commissioner, they should not be used to deflect scrutiny by the responsible Minister.

The Minister was asked to approve a significant settlement paid for by the taxpayers of Victoria. A component of that was directed to avoiding adverse publicity for Victoria Police. He specifically asked for more detail on how like exposure could be avoided in the future. It was not sufficient for Mr Overland to hide behind ’operational and security concerns’. The Commission considers that principles of transparency and accountability required Mr Overland to fully brief the Minister on Ms Gobbo’s long history with Victoria Police and the resulting grave risks, not just to her safety but also to the organisation, the administration of justice and the Government. The Minister seems to have been let down by his Chief Commissioner.

The 2011 Maguire advice

When Victoria Police disbanded the Petra Taskforce following the murder of Mr Williams in April 2010, its investigations were taken over by the Driver Taskforce established by Sir Ken Jones to investigate the circumstances surrounding Mr Williams’ death.⁸⁵⁷ In early 2011, following Sir Ken’s departure from Victoria Police, the Driver Taskforce Steering Committee comprised of officers Mr Ashton (now Assistant Commissioner, Crime, Victoria Police), Mr Pope, Deputy Commissioner Emmett Dunne, Superintendent Doug Fryer and Inspector Michael (Mick) Frewen.⁸⁵⁸

Mr Dale’s Australian Crime Commission prosecution

Before the Petra Taskforce was disbanded, Mr Solomon submitted a brief of evidence to the Commonwealth Director of Public Prosecutions (CDPP), recommending charges against Mr Dale for offences against the Australian Crime Commission Act 2002 (Cth).⁸⁵⁹ The prosecution relied on Ms Gobbo’s 2009 statement to the Petra Taskforce and the recorded conversation with Mr Dale.⁸⁶⁰

On 20 December 2010, the CDPP met with Sir Ken and others from Victoria Police. The CDPP considered the case against Mr Dale was strong and should proceed.⁸⁶¹ Sir Ken raised the civil litigation settlement agreement that she would not be called as a witness, but it was agreed that could be overcome.⁸⁶² He did not tell those at the meeting that Ms Gobbo had been a human source and that this could be relevant to her credit, explaining to the Commission he wanted to investigate how broad and deep the issue went before dealing with disclosure.⁸⁶³

Mr Dale was charged with the Commonwealth offences on 15 February 2011.⁸⁶⁴

Concern about disclosure in the ‘Tomato Tins’ cases

On 24 August 2011, Ms Gobbo, Mr Buick and Detective Sergeant Jason Lebusque and Ms Gobbo met with the Deputy Director of the CDPP, Mr Shane Kirne and solicitors Ms Krista Breckweg and Ms Vicki Argitis to discuss prosecutions emanating from the ‘Tomato Tins’ drug syndicate cases.

Mr Buick recorded the meeting, unbeknown to the attendees. Ms Gobbo raised matters that she said made it difficult for her to give evidence, referencing the Tomato Tins prosecution indirectly:

MS BRECKWEG: If they do issue a subpoena—

MS GOBBO: I don’t want to talk cryptically, but it’s maybe a conversation for another day. But it affects matters that are being prosecuted by your office at the moment.

MS BRECKWEG: Okay.

MS GOBBO: Very significant matters.

MS BRECKWEG: I think I know what you’re talking about, just a rough guess—your view is that it’s not just the threat from Dale … it’s the threat from other people.

MS GOBBO: Yeah.

…

MS BRECKWEG: Well, that’s something we have to take very seriously.⁸⁶⁵

Ms Gobbo spoke more plainly with Mr Buick after the meeting:

MR BUICK: —I’m not as clever as, you know, the rest of you. What’s the current prosecution that is—is the issue?

MS GOBBO: World’s biggest ever importation of ecstasy.

MR BUICK: And who’s up on that?

MS GOBBO: Higgs, Karam, Barbaro. The highest level of organised crime dealers.

MR BUICK: So they’ve all-—

MS GOBBO: Now, yo —I can tell you, you—you, being the ACC, and VicPol and the AFP didn’t have a clue about that. I actually had the shipping documents. I got my hands on ‘em and that’s how you found the world’s biggest ever single seizure of ecstasy in the world. Now you think I’m going to risk those people… finding out? No fucking way.⁸⁶⁶

Legal advice sought about disclosure

At the end of August 2011, Mr Buick raised the need for legal advice in relation to anticipated subpoenas in Mr Dale’s prosecution and concerns this might expose Ms Gobbo’s history as a human source.⁸⁶⁷ Ms Gobbo also stressed these matters in conversations with the CDPP and mistakenly believed entry to the Witness Protection Program and the Witness Protection Act 1991 (Vic) (Witness Protection Act) would save her from such questioning.⁸⁶⁸ The VGSO later told Mr Buick that the Witness Protection Act would not assist Ms Gobbo in this way.⁸⁶⁹

Mr Buick told Ms Gobbo he had suggested she be withdrawn as a witness but the CDPP, unaware of Ms Gobbo’s full relationship with Victoria Police, understandably wanted to proceed with its strongest case.⁸⁷⁰ Mr Buick told the Commission that he was discussing withdrawing the matter with Mr Frewen, Mr Fryer and Mr Ashton.⁸⁷¹

Mr Buick frankly conceded in his evidence to the Commission that those attending a meeting on 13 September 2011 between Mr Buick and Mr Frewen from Victoria Police, Mr Maguire and Ms Louise Jarrett of the VGSO realised that Ms Gobbo’s role as a human source may have led to convictions based on material that might have been inadmissible.⁸⁷² Ms Jarrett’s notes included ‘the need to protect the organisation [Victoria Police]—may jeopardise other proceedings/ convictions’.⁸⁷³

In responsive submissions, Victoria Police asserted that Counsel Assisting submissions do not refer to the fact that those at the meeting were primarily concerned about Ms Gobbo’s safety, instead focusing on Ms Jarrett’s note about disclosure. Victoria Police submitted this misconstrues the evidence.⁸⁷⁴ Mr Buick confirmed in his oral evidence that the safety of Ms Gobbo was his primary concern.⁸⁷⁵ Victoria Police pointed to the evidence of Mr Maguire that there was a significant concern about Ms Gobbo’s safety in the event that her role as a human source was revealed. In reference to the ‘need to protect the organisation’, Victoria Police submitted that there was no evidence that Victoria Police or the VGSO thought, as at September 2011, that Ms Gobbo’s informing may have compromised convictions. Mr Buick gave evidence that his understanding was that Ms Gobbo had not breached legal professional privilege as a human source. Additionally, Mr Buick followed his usual process with respect to disclosure.⁸⁷⁶

On 15 September 2011, Mr Maguire and Ms Jarrett met with Mr Lardner and Mr Bona.⁸⁷⁷ Ms Jarrett’s notes included that ‘problem may be if she has been involved in informing on clients of hers—crims will appeal sentences’, and ‘need to know what problem we are facing based on the extent of her involvement with police’.⁸⁷⁸ This was sensible, astute, and obvious legal advice that Victoria Police should have obtained years earlier, before Ms Gobbo’s registration as a human source.

On 21 September 2011, Mr Maguire, representatives from the CDPP and the VGSO met with officers of the SDU, the Briars and Driver Taskforces and the Legal Services Department about PII issues and subpoena matters.⁸⁷⁹ The CDPP’s Ms Breckweg noted, ‘Informer and liar’ and ‘All issues to credit’.⁸⁸⁰ Ms Jarrett recorded, ‘Serial liar, dobber’, ‘Dobbed on clients’, and ‘This will be their tactic’.⁸⁸¹ Mr Maguire said he would need to look at the SML and asked if this would indicate who was being investigated and if Ms Gobbo was representing them.⁸⁸² Ms Jarrett recorded that Ms Breckweg responded, ‘at least one’, perhaps a reference to Mr Karam and the Tomato Tins drug syndicate cases.⁸⁸³ At the end of September, Victoria Police raised the prospect of withdrawing Ms Gobbo as a witness if it appeared the PII argument would be lost.⁸⁸⁴

Towards the end of September 2011, Mr Maguire read the SML.⁸⁸⁵ At around the same time, Mr Frewen reported to Mr Ashton, Mr McRae and Mr Fryer about a meeting with Ms Breckweg, where he raised the prospect of Ms Gobbo being withdrawn as a witness and her evidence given in other ways, if it appeared the PII argument would be lost. Mr Frewen opined that the risk to Ms Gobbo and other high-risk individuals and police methodologies would be too great;⁸⁸⁶ Ms Breckweg said it would likely need sign-off from the CDPP in Canberra.⁸⁸⁷

Mr Maguire, having read the SML,⁸⁸⁸ provided advice on 4 October 2011, including that:

• Disclosure may need to be made of Ms Gobbo’s dealings with the SDU in relation to Mr Dale.
• At the very least, the CDPP would need to consider this material.
• A PII claim may fail in that the court might find that the public interest in protecting the identity of a human source was outweighed by the public interest in disclosing material that would assist accused persons in establishing their innocence.
• Once disclosure was made and Ms Gobbo identified as a human source, the defence would likely press to obtain documents relating to other dealings between her and Victoria Police to show she was providing legal services and advice at the same time as providing information to police.
• If this occurred and Ms Gobbo’s role were fully exposed, there was a possibility that people like Mr Tony Mokbel would seek to challenge their convictions on the basis that they were improperly obtained, with a potential collateral effect on hissentences.⁸⁸⁹

Mr Maguire presented his final advice (Maguire advice), at a meeting with Victoria Police and the VGSO on 4 October 2011.⁸⁹⁰ The meeting noted the next step was to elevate the issue to Mr Ashton and Mr Pope for them to provide instructions about disclosure. Acting Deputy Commissioner, Crime Timothy (Tim) Cartwright, APM, Mr Ashton, Mr Pope and Mr McRae met on 11 October 2011 and agreed to wait to see if the CDPP was proceeding with Ms Gobbo as a witness; if so, Victoria Police would again encourage her to enter the Witness Protection Program.⁸⁹¹

Victoria Police contended in responsive submissions that, although the advice was received by the office of the Executive Director of Legal Services on 5 October 2011, Mr McRae did not recall reading it until 3 November 2011.⁸⁹² Victoria Police submitted that it was regrettable that the advice was not provided to Mr McRae immediately.⁸⁹³ Although advice of this nature would have usually come to him directly from the VGSO with a proper briefing on the issues, the advice was not addressed to him. It was addressed to Mr Buick and given to him by Mr Ashton on 3 November 2011. This was consistent with practice at the time, which was for the matter to be dealt with by criminal investigators directly, and not through the Legal Services Department.⁸⁹⁴ The Commission therefore accepts that on this material, Mr McRae probably did not receive the advice until 3 November 2011.⁸⁹⁵

The Commonwealth Director of Public Prosecutions presses for disclosure

In late October, the CDPP reminded Victoria Police that any potential agreement to limit subpoenas did not abrogate responsibility to make disclosure of all documents relevant to Mr Dale’s defence, noting disclosure should include:

• documents that informed Mr Dale of the prosecution’s case against him⁸⁹⁶
• any information affecting the credibility of any prosecution witness⁸⁹⁷
• any material not sought to be relied upon by the prosecution, but that may run counter to its case or may assist Mr Dale in advancing a defence.⁸⁹⁸

Ms Breckweg emailed Ms Jarrett, Mr Buick and Mr Frewen asking for a list and copies of all these documents to be provided to the CDPP urgently, adding that this material must be made available to the defence unless Victoria Police made a claim of PII or legal professional privilege.⁸⁹⁹ Mr Fryer forwarded this to Mr Ashton, adding:

… the Gobbo witness issues are heating up with the [C]DPP—if the below is correct it would appear ALL needs to be declared re her history—this is a problem. For discussion please.⁹⁰⁰

Discussion of the Maguire advice

On 3 November 2011, Mr Cartwright, Mr Ashton and Mr McRae met to discuss the Maguire advice.

Mr Cartwright’s note of the meeting contained two action items:

• He was to discuss with Mr Pope how to ensure appropriate governance where a human source was a legal practitioner.
• Mr McRae was to consider disclosure requirements in the AFP prosecutions for the Tomato Tins cases.⁹⁰¹

It appears they did not discuss disclosure obligations to Mr Tony Mokbel or his associates, despite Mr Mokbel having applied to change his plea to not guilty.⁹⁰² And despite the action item recorded by Mr Cartwright, Mr McRae did not consider disclosure requirements in the Tomato Tins case.⁹⁰³

Victoria Police submitted that all three attendees had varying degrees of knowledge of Ms Gobbo’s involvement with Victoria Police, including in relation to Mr Mokbel and the Tomato Tins prosecution. The three attendees’ evidence to the Commission indicated that each diverged in terms of what was agreed at the meeting. Matters that were significant to one attendee did not necessarily carry the same weight with the others.⁹⁰⁴

The views of Victoria Police officers

Mr Fin McRae

In responsive submissions, Mr McRae contended that there was no evidence to suggest he was aware, prior to this meeting, of concerns that Ms Gobbo had acted in a position of conflict by representing clients and, at the same time, informing on them, or that her exposure as a human source might put other criminal cases and prosecutions in jeopardy.⁹⁰⁵ He submitted that disclosure would have required him to have information he did not have—specific knowledge of the matters to be disclosed.⁹⁰⁶ Mr McRae, in his evidence to the Commission, said he had not been tasked to do anything regarding disclosure in Mr Tony Mokbel’s⁹⁰⁷ or the Tomato Tins cases;⁹⁰⁸ had he been, he would have recorded action items. He accepted that there should have been disclosure to the CDPP, but not by him as he did not have ‘line of sight’ following the meeting.⁹⁰⁹

Mr McRae asserted that: no-one at the meeting had sufficient knowledge of the matters at the time of the meeting to make disclosure; in relation to Mr Mokbel, disclosure was made to the DPP in September 2012 (discussed below); the CDPP was given access to the SML on the day of the meeting; and the meeting led to a review undertaken by former Chief Commissioner Neil Comrie, AO, APM (Comrie Review), an appropriate next step to take.⁹¹⁰

Mr Graham Ashton

Mr Ashton told the Commission that he discharged his obligation to deal with potential disclosure to Mr Mokbel by notifying his superior officer, Mr Cartwright, and Mr McRae.⁹¹¹ He said it was Mr Cartwright’s role, not his, to check that relevant disclosure information was passed to the CDPP regarding the Tomato Tins case.⁹¹² Further, he recommended a review as the first step to learn what they were dealing with.⁹¹³ He considered the steps he took as to disclosure were adequate.⁹¹⁴ In his responsive submissions, Mr Ashton asserted there was no basis to conclude he failed to take reasonable steps to ensure these matters were properly investigated and examined, largely for the reasons set out above.⁹¹⁵

Mr Tim Cartwright

Mr Cartwright accepted that no one had made a clear action item to deal with the issue raised in the Maguire advice regarding Mr Tony Mokbel following the 3 November meeting.⁹¹⁶ He told the Commission he could not explain why, but suggested it may have been because he believed that the Comrie Review would deal with it.⁹¹⁷

In relation to disclosure in the Tomato Tins cases, Mr Cartwright said he tasked Mr McRae to consider the matter and whether any further disclosure was required.⁹¹⁸ This was an ongoing issue that should have been dealt with by Mr Ashton and Mr McRae.⁹¹⁹

In responsive submissions, Mr Cartwright asserted that he took appropriate actions given he was new to the role and his level of knowledge at the time of matters that were potentially disclosable.⁹²⁰ He also contended that he was unaware of Mr Karam’s case before reviewing the Maguire advice. He thought that Mr McRae was tasked to ‘consider the requirements’ for disclosure in the context of the Tomato Tins cases but this was not communicated, for which he acknowledged responsibility. He mistakenly understood that Mr McRae would report back to him if there was any particular difficulty.⁹²¹

Summary of conduct

Given the Maguire advice, the seniority of those attending and the recorded terms of their discussion, the Commission considers that by the end of the meeting on 3 November 2011, Mr Cartwright, Mr Ashton and Mr McRae knew or should have known:

• The prosecutions of Mr Mokbel and those associated with the Tomato Tins cases may have been adversely affected by the conduct of Ms Gobbo as a human source and/or of police officers who managed her.
• This information had probably not been brought to the attention of the relevant defence legal representatives or prosecuting authorities.
• It was necessary to urgently take all reasonable steps to ensure that the concerns set out above were properly investigated and then considered by Victoria Police’s fully briefed, competent and independent legal advisers and/or immediately brought to the attention of the DPP and CDPP.
• As these prosecutions were ongoing, it was necessary to urgently communicate these concerns to the relevant office of public prosecutions.⁹²²

Given the seriousness of these matters, and noting the seniority, general experience and various duties, obligations and functional responsibilities of those involved, the Commission finds that Mr Cartwright, Mr Ashton and Mr McRae should have satisfied themselves that the concerns raised in the 3 November meeting were appropriately addressed: each seems to have failed in their duty to do so.⁹²³

The O’Connor document

Also on 3 November 2011, the CDPP’s Ms Breckweg and Mr Beale read the SML, or at least portions of it.⁹²⁴ The CDPP outlined to Mr O’Connor the type of documents that needed to be disclosed and it was agreed Victoria Police would prepare a document broadly describing contact with Ms Gobbo, which Mr Ashton would review.⁹²⁵ Mr O’Connor, assisted by the SDU, prepared this document (O’Connor document) and sent it to Mr Sheridan, who gave it to Mr Ashton on 7 November 2011.⁹²⁶ Mr Ashton told the Commission he was shocked by the O’Connor document,⁹²⁷ which identified:

• Ms Gobbo had been an active human source managed by the SDU between 16 September 2005 and 14 January 2009 and 319 IRs had been disseminated to investigators based on information she supplied, with 172 ICRs varying in length from two to 30 pages.⁹²⁸
• Most documents related to Ms Gobbo’s contact with 164 criminals, solicitors or former police officers (whose names were listed in the document); the SDU believed that, in the main, contact with them was driven by the fact that she was a practising lawyer and that her counsel was sought, formally or informally, about the legal status of those involved; for example, pending charges, negotiations with investigating police, plea opportunities and so on.⁹²⁹
• Ms Gobbo was suspected of being involved on the periphery of criminal matters, but nothing was ever proven.⁹³⁰
• Ms Gobbo failed to disclose to the SDU that she had acted as a conduit for communications between Mr Dale and Mr Williams and, in November 2008, had admitted to the Petra Taskforce that she knew about the use of false phones.⁹³¹

The next day, Mr Ashton decided that Ms Gobbo should be withdrawn as a witness,⁹³² told the CDPP and updated Mr Cartwright and Mr McRae.⁹³³ Despite initial reluctance, Mr Kirne told Mr Ashton later that day that the CDPP would not call Ms Gobbo as a witness.⁹³⁴ The CDPP subsequently withdrew a number of charges.⁹³⁵ Senior Victoria Police officers congratulated Mr Ashton and Mr Cartwright noted, ‘as always the protection of life is paramount in decision making’.⁹³⁶

Noting Mr Ashton’s receipt of, and shock at, the O’Connor document, his seniority, previous policing experience and past contact with and knowledge of Ms Gobbo, the Commission accepts that he knew, or at least should have known, that: ⁹³⁷

• Potentially many more cases than those discussed in the 3 November 2011 meeting with Mr McRae and Mr Cartwright may have been adversely affected by the conduct of Ms Gobbo as a human source, and/or the conduct of Victoria Police officers who handled or managed her.
• It was unlikely the information in the O’Connor document had been brought to the attention of relevant defence legal representatives or prosecuting authorities.
• It was necessary to take all reasonable steps to ensure concerns raised in the O’Connor document were immediately and thoroughly investigated and considered by competent, independent legal advisers comprehensively briefed with all necessary information.

Mr Ashton’s diary for 22 November 2011 recorded that the prosecutor in Mr Mokbel’s case, Mr Peter Kidd, QC, suggested that Victoria Police needed separate representation in Mr Mokbel’s change of plea application and that Mr Coghlan QC, the then DPP, would telephone Mr Ashton about this.⁹³⁸ Mr Ashton’s responsive submissions asserted that this did not mean he had the opportunity to raise the Mokbel/Gobbo issues with Mr Coghlan on that day; the diary entry related to irregularly sworn affidavits and did not establish he even spoke to Mr Coghlan.⁹³⁹

Given Mr Ashton’s knowledge of these issues after the meeting of 3 November and receipt of the O’Connor document, the Commission considers that Mr Ashton should have raised the concerns aired in the meeting and in the O’Connor document with Mr Coghlan. It seems most likely from Mr Ashton’s diary note that Mr Coghlan rang Mr Ashton and they discussed the case but if he did not, Mr Ashton should have contacted him to do so. These disclosure concerns were highly relevant to the critical issue for the court to determine in Mr Mokbel’s application to change his plea. Mr Ashton seems to have failed in his duty to disclose this information to the DPP.

Addressing conduct: reluctantly coming clean

The 3 November 2011 meeting of Mr Cartwright, Mr Ashton and Mr McRae was the catalyst for the Comrie Review.⁹⁴⁰

The Comrie Review

Mr McRae told the Commission that the Comrie Review was intended to be a largely desktop exercise, providing an independent assessment of the adequacy of Victoria Police’s policy, procedures, guidelines and processes relating to human sources such as Ms Gobbo.⁹⁴¹

Unfortunately, it did not directly consider whether disclosure had affected past or pending cases.⁹⁴² Mr McRae conceded that if, instead, someone like Mr Maguire had been asked to review relevant cases, it might have brought forward disclosure to the DPP by nine months.⁹⁴³

Mr Comrie finalised his review on 30 July 2012 and noted:

Entries contained in the 3838 ICRs, taken at face value, indicate that on many occasions 3838, in providing information to police handlers about 3838’s clients, has disregarded legal professional privilege. Furthermore, in some instances, it is open to interpret that such conduct may have potentially interfered with the right to a fair trial for those concerned. In the absence of any apparent active discouragement from the police handlers for 3838 to desist with furnishing information on such matters, the handlers remain vulnerable to perceptions that they may have actually been inducing or encouraging the provision of such information. These concerns are heightened in instances where handlers have passed on such information to other police case managers, presumably so that they may make use of it.⁹⁴⁴

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

On 31 August 2012, Superintendent Stephen Gleeson, who supported Mr Comrie in the conduct of the review, and Mr McRae briefed the OPI on some issues raised in the Comrie Review and provided it with copies of the VGSO advice and Interpose information in relation to conflict issues identified by Mr Gleeson.⁹⁴⁵

Source Development Unit criticisms of the Comrie Review

The SDU officers suggested that Mr Comrie was a ‘rubber stamp’ to give Mr Gleeson’s work the air of independence, citing a bill issued by Mr Comrie for conducting the review for only five days’ work.⁹⁴⁶ Mr McRae rejected that suggestion, stating that Mr Gleeson drafted the report section by section, discussing them with Mr Comrie as they were written, with Mr Comrie assessing and finalising the report as a whole.⁹⁴⁷ He said Mr Comrie’s fee was ‘almost embarrassing’ for such a comprehensive report.⁹⁴⁸

The SDU emphasised that they were not consulted during the Comrie Review.⁹⁴⁹ Mr McRae said this was because it was a ‘desktop exercise’, with Mr Gleeson noting it was not intended to be a forensic investigation of what occurred.⁹⁵⁰ Mr Gleeson told the Commission that he did not think it appropriate to talk to any particular SDU officer once he had read the written material, which, in his view, could potentially give rise to disciplinary or criminal proceedings. He said he:

... was acutely aware that … interviewing members about serious issues in the context of a limited review and in the absence of all relevant material could have compromised any future investigations or proceedings. Extensive investigations and personal interviews were also well beyond the scope of this systems and process focused review.⁹⁵¹

Mr Gleeson reports on ‘out of scope matters’

As the Comrie Review proceeded, Mr Comrie and Mr Gleeson identified problems that went beyond the terms of reference, some of which may have required reporting to the OPI.⁹⁵²

On 4 June 2012, Mr Gleeson raised these issues with Mr McRae, noting they appeared to have been communicated in the January 2009 Biggin memo and SWOT analysis to Mr Overland, Mr Cornelius, Mr Moloney and Mr Ashton, but nothing was done.⁹⁵³ Still concerned about this issue two weeks later, he discussed the possibility with Mr McRae and Mr Pope of referring the matter to the OPI and Victorian Ombudsman, given the seniority of the members involved.⁹⁵⁴ On 13 June 2012, Mr Gleeson also raised concerns with Mr McRae about the Petra Taskforce Board of Management knowing at least some details of Ms Gobbo’s informing to Victoria Police and the potential risks.⁹⁵⁵ At around this time, Mr Gleeson told the Chief Commissioner that he would produce a separate report addressing matters that may require OPI investigation.⁹⁵⁶

On 6 June 2012, Mr Gleeson received legal advice requested from the VGSO during the Comrie Review to the effect that:⁹⁵⁷

• Lawyers’ duties to their clients and the court are likely to significantly limit the use Victoria Police could make of a legal practitioner as a human source.
• Subject to limited exceptions, a human source would be under a duty not to disclose information subject to legal professional privilege to Victoria Police.
• It would be ethically repugnant for:
  • a human source who was a lawyer to assist police in securing a conviction by providing confidential information obtained from a client in the course of seeking legal advice
  • a human source who was a lawyer to review a police brief of evidence against their client for the forensic benefit of Victoria Police
  • Victoria Police to receive information from a human source that it knew was subject to legal professional privilege.

On 22 June 2012, Mr Gleeson finalised his ‘out of scope’ report and sent it to Mr Pope.⁹⁵⁸ He pointed out:

• the January 2009 Biggin memo and SWOT analysis
• that there were no minutes of the Petra Taskforce Board of Management meeting and no indication of who attended or whether the documents were circulated, considered or discussed⁹⁵⁹
• Ms Gobbo informing on clients and defence tactics, providing commentary on shortcomings in prosecution briefs and witness statements and tactics for interviewing clients
• Interpose examples of Ms Gobbo providing information to police handlers about her clients and disregarding legal professional privilege
• that Ms Gobbo’s conduct may have compromised rights to a fair trial
• there was no recorded discouragement from her handlers for Ms Gobbo to stop informing on clients, leaving them open to perceptions they may have induced this conduct (especially as information was passed on to investigators)
• concerns that Ms Gobbo’s and Victoria Police’s conduct could suggest they had undermined the justice system.

Despite the many senior Victoria Police officers, some with law degrees, who had been aware at least since early 2009, through the Biggin memo and the SWOT analysis, of the risks arising from Ms Gobbo’s role as a human source, Mr Gleeson, no doubt with the encouragement of Mr Comrie, seems to have been the first officer to act appropriately on these serious issues.

Upon receiving Mr Gleeson’s report on 12 July 2012 and discussing it with Mr Pope, Mr Kenneth (Ken) Lay, AO, APM resolved to brief the OPI as a matter of priority, meeting with its Acting Director, Mr Ron Bonighton, on 20 July 2012. He followed up with a letter and a copy of Mr Gleeson’s report.⁹⁶⁰

Operation Loricated and disclosure

Early discussions with the Director of Public Prosecutions

Ms Gobbo’s lawyers wrote to the then DPP, Mr Champion, offering assistance in the investigation of the Hodson murders a number of times, including in late September 2011⁹⁶¹ and again on 27 February 2012.⁹⁶² In May 2012, the DPP received two further items of correspondence between Victoria Police and Ms Gobbo:

• a letter from Mr Walshe to Ms Gobbo dated 26 April 2012 stating that the history in Ms Gobbo’s letter ‘does not necessarily accord with the history from the perspective of Victoria Police’⁹⁶³
• a letter from Ms Gobbo to Mr Walshe dated 20 May 2012, in which she stated, ‘I remind you the facts speak for themselves and they can be referenced in hundreds of hours of covert recordings made by your members each time they met with me’.⁹⁶⁴

The current DPP, Ms Kerri Judd, QC, noted in material she provided to the Commission that in May 2012 neither the DPP, nor those advising him, knew of any facts to explain why Victoria Police had ‘hundreds of hours of covert recordings’ with Ms Gobbo.⁹⁶⁵

On 1 June 2012, Mr McRae and Mr Fryer met with the DPP and Mr Bruce Gardner from the OPP about Ms Gobbo’s correspondence.⁹⁶⁶ Mr Fryer told Mr Champion Ms Gobbo had ‘been a source for a long time’ and they discussed safety concerns.⁹⁶⁷ Neither Mr McRae nor Mr Fryer raised the issues discussed in the Maguire advice, Comrie Review or Mr Gleeson’s report.⁹⁶⁸

In August 2012, Mr McRae met with Mr Gleeson, Mr Ashton and Mr Pope to further discuss disclosure to the DPP.⁹⁶⁹ Mr McRae again met with the DPP and Mr Gardner on 4 September 2012, with Mr Gardner’s notes of the meeting stating that:

Fin advised us today that upon a review of internal Vicpol intelligence material/HSMU material etc, there may be a suggestion that [Ms Gobbo] was providing information to Vicpol about persons she then professionally represented, including [Mr] Mokbel.

Possibly suggested that [Ms Gobbo] provided information to Vicpol which enabled Vicpol to detect and then arrest [Mr Mokbel] in Greece, which then led to his extradition.

Query whether [Ms Gobbo] in fact acted for [Mr Mokbel]. Query whether [Ms Gobbo] provided data to Vicpol re her own client (in breach of LPP).

…

Issue—does OPP have duty of disclosure now, to [Mr Mokbel], re [Ms Gobbo] “information”?? ⁹⁷⁰

Mr McRae recalled that he and Mr Gleeson updated the DPP and Mr Gardner about the Comrie Review, including potential conflicts of interest and, in the case of Mr Tony Mokbel’s extradition, the use of potentially privileged information that had been identified in source holdings.⁹⁷¹ They also discussed what the duty of disclosure entailed and, again according to Mr McRae’s recollection, Mr Gleeson noted that Victoria Police was preparing to review intelligence holdings to determine whether disclosure was required, and the DPP said he would wait for the outcome of that process.⁹⁷² In responsive submissions, Mr McRae contended that it was open to the DPP to seek further information but they did not do so.⁹⁷³

Ms Judd, however, advised the Commission that the OPP does not have evidence of any further substantive information from Victoria Police about Ms Gobbo’s activities until early 2014.⁹⁷⁴ As explained below, Victoria Police did not provide the DPP with a further update until 1 April 2014, after the ‘Lawyer X’ story broke in the Herald Sun.⁹⁷⁵

On 17 October 2012, the DPP and Mr Gardner met with Mr Tom Gyorffy, SC, who was appearing on behalf of the DPP in Mr Tony Mokbel’s appeal proceedings in the High Court. Mr Gardner’s file note included:

• All agree—even if true, could not affect appeal issues
• Nor is it clear or certain enough to require disclosure
• may not involve any breach of LPP anyway.⁹⁷⁶

Mr Gardner recalled that ‘appeal issues’ referred to technical arguments around Mr Tony Mokbel’s extradition from Greece.⁹⁷⁷ The disclosure reference related to the lack of clarity and specificity around what Victoria Police had said Ms Gobbo may have said about Mr Tony Mokbel’s matter.⁹⁷⁸ ‘LPP’ referred to the fact that, on the information police provided to the DPP, it was not clear that Ms Gobbo had provided information about any of her clients that was subject to legal professional privilege.⁹⁷⁹ Ms Judd informed the Commission that, at this time, Victoria Police had only provided the OPP with the information discussed in the meetings outlined above.⁹⁸⁰

Establishment of Operation Loricated and Operation Bendigo

Operation Loricated was established in January 2013⁹⁸¹ to implement Recommendation 1 of the Comrie Review (that is, to construct a complete record of Ms Gobbo’s use as a human source).⁹⁸²

The Commission is troubled that it took Victoria Police almost six months after the finalising of the Comrie Review to establish Operation Loricated, a key objective of which was to identify relevant issues warranting further investigation,⁹⁸³ and by its glacial progress since, given:

• Ms Gobbo’s use as a human source was a problem of its own making, which required immediate and urgent attention
• Ms Gobbo’s informing may have affected the trials of many people serving lengthy custodial sentences.

Six months after it started, the Operation Loricated Steering Committee finally identified key emerging risks and instructed that the material be properly analysed and presented to the DPP or IBAC for appropriate action and notified immediately if clear and serious issues arose.⁹⁸⁴ The Steering Committee identified that legal issues, including past trials conducted unfairly, were the greatest risk.⁹⁸⁵ The minutes recorded that Mr McRae and Mr Fryer had already briefed the DPP on the issue, something disputed by the DPP.⁹⁸⁶

In September 2013, Mr McRae told the Steering Committee about his 2012 meeting with the DPP who had requested that Victoria Police report back on instances where a conflict of interest between Ms Gobbo and a client was identified.⁹⁸⁷ By this time, Victoria Police had known a great deal about Ms Gobbo’s many conflicts between her roles as both human source and lawyer for years and disclosed almost none of it. But progress remained slow, as Mr McRae⁹⁸⁸ and Mr Cartwright conceded.⁹⁸⁹

The Commission finds that Victoria Police’s unacceptable delay in complying with its lawful disclosure obligations, while in large part to protect Ms Gobbo’s safety, was also to keep hidden the highly questionable conduct of some officers, to protect their reputations and that of Victoria Police, and to avoid the risk of convictions being challenged and overturned. Ms Gobbo’s safety concerns, though genuine, provided a convenient ‘smoke screen’ to conceal these deeply troubling matters, while those who may have been wrongly convicted were serving lengthy prison sentences.

That changed on 31 March 2014, when the Herald Sun broke the Lawyer X story with the article, ‘Underworld Lawyer a Secret Police Informer’.⁹⁹⁰ The article reported that Victoria Police had recruited a prominent lawyer as a human source who gave them ‘unprecedented access to information on some of Australia’s biggest drug barons and hitmen, including alleged corrupt police and others involved in Melbourne’s gangland war’.⁹⁹¹ Victoria Police sought and obtained a suppression order, but not before some copies of the paper containing the article had been circulated.⁹⁹²

On 1 April 2014, Mr McRae and Mr Stephen Leane, who had recently been appointed as Assistant Commissioner, Professional Standards Command (formerly ESD), met with the DPP and Mr Gardner as a belated follow up to Mr McRae’s September 2012 meeting.⁹⁹³

Mr McRae’s file note of the meeting included:

‘At present there is no information that indicates there has been a miscarriage of justice and there are a number of avenues open for these issues to be raised.’ ⁹⁹⁴

Mr Leane told the Commission the purpose of the meeting was to ‘make full disclosure to the DPP of the circumstances—as Victoria Police currently understood them—surrounding Ms Gobbo and her use as an informer’.⁹⁹⁵ Mr Leane said they outlined the steps being taken by Victoria Police, particularly reporting to IBAC which would occur later that day.⁹⁹⁶ Mr Gardner’s file note also included some surprising entries given the information before this inquiry: for example, ‘Fin [McRae] doesn’t yet know if NG [Nicola Gobbo] did give police data re a person who was then a client. Query if she informed on own client’.⁹⁹⁷ In responsive submissions, Mr McRae stated that during this meeting, the prospect of Ms Gobbo having informed on her clients was the very thing that Mr McRae and Mr Leane discussed with the DPP and Mr Gardner at this meeting.⁹⁹⁸ The potential for miscarriages of justice was also discussed.⁹⁹⁹

On 3 April 2014, the DPP met with Chief Crown Prosecutor Mr Gavin Silbert, QC, Solicitor for Public Prosecutions, Mr Craig Hyland and Mr Gardner to discuss any disclosure obligations stemming from Ms Gobbo’s role as a human source.¹⁰⁰⁰ Mr Gardner’s file note of that meeting included ‘Not appropriate to ask VicPol for data’, which the DPP told the Commission referred to the fact that Victoria Police had a very large volume of material that would be difficult for the DPP to interpret and Victoria Police and IBAC were already attempting to analyse it.¹⁰⁰¹ The Commission considers this was a reasonable approach to take, particularly given Mr McRae wrote to the DPP on 7 April 2014 stating:

As indicated at our previous meeting we will provide any information that arises that may warrant consideration of your office in regard to the running of criminal prosecutions. I can confirm that at this time I have not received information that has necessitated your consideration.

As you are aware our focus has been on safety issues in regard to the risk of the identification of this person. That safety risk is our primary concern at present.¹⁰⁰²

Mr McRae told the Commission he had not at that stage reviewed the IRs or formed a view that there had been any miscarriages of justice.¹⁰⁰³

Victoria Police submitted that the statement in the letter that Mr McRae had not received information that necessitated the DPP’s consideration should be understood in the context of the meeting held on 1 April 2014 and the DPP’s stated preference to wait until Victoria Police had completed its review of the data. If the DPP had said that he wanted to review the information that Victoria Police had identified at that point, then it would have been made available.¹⁰⁰⁴ The Commission considers that Mr McRae should have confirmed in his 7 April 2014 letter that he had not reviewed the potentially highly relevant IRs to which he referred.¹⁰⁰⁵ Given Victoria Police’s filtered and arguably disingenuous approach to briefing the DPP on matters of potential disclosure, the DPP’s decision to await further information was not unreasonable, although with hindsight it was regrettable that they were not more proactive.

On 8 April 2014, Victoria Police established yet another investigation, Operation Bendigo, to consider issues including any potential legal conflict identified by Operation Loricated but that was outside its scope.¹⁰⁰⁶ Mr McRae told the Commission that, in light of discussions with the DPP and IBAC, he considered case studies were required to identify specific instances of conflict; if necessary these could be provided to the DPP and IBAC.¹⁰⁰⁷ Five case studies were completed between September and November 2014; a potential miscarriage of justice requiring disclosure was identified in one case only.¹⁰⁰⁸ Mr McRae told the Commission he did not accept these findings as the information in the case studies left unanswered questions.¹⁰⁰⁹

On 25 November 2014, Mr McRae and Mr Leane met with the DPP and Mr Gardner, Mr McRae having emailed Mr Gardner the previous day a ‘Legal Conflict Report’ providing the five ‘examples’, which were no more than names without any substantial information.¹⁰¹⁰ Mr McRae and Mr Leane told the Commission they intended to provide the case studies to the DPP during the meeting but this did not occur. Mr McRae’s statement to the Commission said the DPP declined to accept them.¹⁰¹¹ Mr Leane, however, told the Commission he thought ‘refusal’ was stronger than he thought applicable to the circumstance.¹⁰¹² Mr McRae’s file notes included ‘there [was] no evidence of a deliberate attempt to pervert the course of justice or orchestrate court outcomes’.¹⁰¹³ On 11 December, Mr Gardner emailed Mr McRae, stating that the matter had been considered by the Director’s Committee; there was not sufficient information to invoke the Miscarriage of Justice Policy;and the position may change depending on the outcome of the IBAC investigation (outlined below).¹⁰¹⁴

Mr McRae’s responsive submissions asserted that he was an important driving force behind Victoria Police disclosure to external agencies of issues relating to Ms Gobbo.¹⁰¹⁵ Mr McRae’s specific contentions around his involvement in responding to the Comrie Review with Operation Loricated and then Operation Bendigo, along with meetings with the DPP and OPI, are outlined above. He also told the Commission his concern was always to protect Ms Gobbo’s safety,¹⁰¹⁶ and that he ‘work[ed] for’ the Chief Commissioner.¹⁰¹⁷

Those matters did not absolve him from his legal professional obligations to the administration of justice and the court. This required him to inform the DPP of the extent of Ms Gobbo’s relationship with Victoria Police to enable the DPP to meet ongoing disclosure obligations in past, current and pending cases. He seems to have persistently failed in his duty to do so.

It is regrettable that, from his June 2012 meeting with the DPP, Mr McRae, an experienced and senior Victoria Police lawyer, did not clearly and unequivocally inform the DPP about what he and Victoria Police had learned through the Biggin memo and SWOT analysis, the Maguire advice, the Comrie Review and Mr Gleeson’s report. The Commission notes that while safety concerns were no doubt real, informing the DPP of relevant disclosure matters could not seriously be considered a security risk.

Having regard to the evidence and responsive submissions, Mr McRae’s handling of Victoria Police’s disclosure to the DPP, along with Ms Gobbo’s civil litigation, fell short of the Commission’s expectations of the most senior lawyer in Victoria Police. The Commission considers that, he should have ensured that adequate disclosure was made to the DPP much earlier and much more comprehensively than it was.

Pursuant to section 44 of the Inquiries Act, the Commission has referred Mr McRae’s conduct to the Victorian Legal Services Board and Commissioner for consideration, along with a copy of relevant parts of Counsel Assisting submissions, Mr McRae’s evidence, responsive submissions and extracts of this final report.

Closure of the Source Development Unit

In March 2012, Mr Pope commenced the Covert Services Review.¹⁰¹⁸ On 24 June 2012, Mr Sheridan emailed Mr Pope suggesting the winding up of the SDU, explaining:

What really tips the scales for me is that the handling of Witness F [Ms Gobbo] has been undertaken and managed by the best trained human source personnel within the Force. These individuals have travelled the world and been training and educated by the best and yet they still lost their way! In short our best people in this area must be able to ensure that we do not make these mistakes in future.¹⁰¹⁹

On 5 July 2012, Mr Sheridan gave Mr Pope a report concluding that the SDU was resistant to managerial intervention, its practices had diminished, a culture of peer selection had developed, and controllers were too involved in source strategy.¹⁰²⁰

Mr Sheridan’s views clearly resonated with Mr Pope, as on 24 August 2012, he emailed Mr Lay, stating that the SDU should be closed for reasons related to culture and, following the Comrie Review, the need to uphold the reputation of Victoria Police and the confidence of the community and judiciary.¹⁰²¹ The SDU was formally closed in 2013.

The SDU officers contended before the Commission that they were ‘sacked’ to senior police from taking responsibility for their own mismanagement of Ms Gobbo.¹⁰²² As Counsel Assisting submitted, the evidence unequivocally established that no SDU officer was sacked. But the unit was permanently closed and all personnel transferred to other roles.¹⁰²³

On the evidence before the Commission, the contention of the former SDU officers that their unit was closed only to protect senior management in Victoria Police must be rejected. So too must their suggestions that the Comrie Review, the Kellam Report and the AB v CD litigation culminating in the High Court’s decision, were all based on falsehoods and flawed reasoning. The decision to close the SDU was based on a range of factors, including the conclusions of the Comrie Review and SDU failings in Ms Gobbo’s management. The evidence presented to the Commission indicated that the closure of the SDU was rational and defensible on the grounds provided to Mr Lay.

That is not to say, however, that the contentions of the SDU officers were entirely unmeritorious. The decision may well have provided budgetary savings and Victoria Police probably recognised it was in its interests to be seen to have done something to ward off likely future criticism of its use of Ms Gobbo as a human source. Its position was improved if the secret unit dealing with her had been disbanded—this may have added legitimacy to any claim that the events constituted an aberration that would never be repeated. Officers outside the SDU certainly shared in their culpability, together with Victoria Police institutionally, as its recent apology demonstrates.

As Counsel Assisting submitted in respect of Mr White’s evidence, however, if senior management hoped that closing the SDU would divert blame and dampen future criticism of Victoria Police, they must have been sorely disappointed. The failure in leadership that allowed Ms Gobbo to act as a human source for so long went far beyond the Senior Sergeant and Inspector in charge of the SDU. Senior Victoria Police officers, including Mr Overland and others on the Petra and Briars Taskforces Boards of Management, were, or should have been, aware of the grave risks involved in the SDU’s management of a criminal defence barrister as a human source and did nothing. Rather, they were content to tolerate the many risks involved while the SDU was delivering such ‘positive’ results where traditional policing methods had not.

Notification to IBAC and the Kellam inquiry

On 10 April 2014, Mr Lay responded to a letter from the IBAC Commissioner, dated 3 April 2014, seeking clarification of matters discussed at a 1 April 2014 meeting (about the ‘Lawyer X’ Herald Sun article).¹⁰²⁴

Mr Lay’s letter provided a high-level chronology of Ms Gobbo’s role as a human source for Victoria Police and stated:

There are a number of aspects of this investigation and peripheral issues that cause me significant concerns. I am of the view that the allegations require an investigation independent of Victoria Police. This view was formed after considering:

• The very real potential of a witness being murdered as a result of possible leaks from Victoria Police;
• The extraordinarily high level of media and public interest in this matter, and
• The additional investigative tools that are open to IBAC, specifically, coercive hearings.¹⁰²⁵

In May 2014, IBAC then engaged the Honourable Murray Kellam, AO, QC, to undertake a review of Victoria Police’s use of Ms Gobbo as a human source. On 6 February 2015, Mr Kellam completed his confidential report into Victoria Police’s handling of Ms Gobbo as a human source, finding negligence of a high order,¹⁰²⁶ endorsing the 27 recommendations in the Comrie Review and making 16 further recommendations (Kellam Report).¹⁰²⁷

The Kellam Report identified nine individuals convicted of serious offences who received, or possibly received, legal advice from Ms Gobbo while she was informing on them to police.¹⁰²⁸

The Kellam Report and the implementation of its recommendations are discussed in Chapter 11.

The Champion Report and court proceedings

Recommendation 12 of the Kellam Report obliged the DPP to consider whether there were miscarriages of justice in relation to those nine individuals.¹⁰²⁹

The DPP produced a confidential report in February 2016 (Champion Report).¹⁰³⁰ In his report, he was unable to conclude whether any miscarriages of justice had occurred, and noted that his examination was limited as he did not have knowledge of, or access to, the necessary information that was likely still held by Victoria Police.¹⁰³¹ He concluded that six of the nine individuals identified in the Kellam Report were in, or potentially in, a lawyer–client relationship with Ms Gobbo.¹⁰³²

As discussed in Chapter 1 of this final report, the Champion Report found that the prosecution had a duty to make disclosures about Ms Gobbo’s conduct to these six individuals, because their convictions may have been tainted. It stated that the DPP was compelled, and intended, to disclose some of the information about which it had become aware to these individuals.¹⁰³³

Following the completion of his report, the DPP wrote to then Chief Commissioner Mr Ashton enclosing a copy of the draft disclosure letter he intended to send to the six individuals named in the Kellam Report, and one other individual whom the DPP had later identified as being potentially affected (Mr Cvetanovski).¹⁰³⁴

On 10 June 2016, the Chief Commissioner initiated proceedings in the Supreme Court seeking to restrain the DPP from making those disclosures, claiming PII as disclosing Ms Gobbo’s identity would put her and her children at extreme risk of death or other harm.¹⁰³⁵ Ms Gobbo joined as a party to proceedings and commenced her own separate proceeding.¹⁰³⁶

The matters were heard in closed court between November 2016 and March 2017, with the interests of the seven individuals, who knew nothing of the proceedings, represented only by amicus curiae.¹⁰³⁷ The Court dismissed the proceeding, finding that the public interest in disclosing the information outweighed the public interest in protecting Ms Gobbo.¹⁰³⁸ The Court recognised that the risk to Ms Gobbo was a powerful reason to restrain disclosure, but found that it was outweighed by the assistance the information would provide to the seven individuals in potentially having their convictions overturned, and in maintaining public confidence in the integrity of the criminal justice system.¹⁰³⁹

The Chief Commissioner and Ms Gobbo unsuccessfully appealed the Supreme Court’s decision to the Court of Appeal¹⁰⁴⁰ and then to the High Court.¹⁰⁴¹

The proceedings in the Supreme Court, Court of Appeal and High Court focused on the period of Ms Gobbo’s use as a human source between September 2005 and January 2009.

Counsel Assisting submitted that at no stage did the Chief Commissioner, through his legal representatives, make any attempt to correct the record of facts before the High Court so as to make clear that Ms Gobbo had been formally registered prior to 2005. The fact of these earlier registrations would have contradicted the Chief Commissioner’s submission that Ms Gobbo had become a human source only because of ‘assurances’ made to her in 2002 and 2003.¹⁰⁴²

Victoria Police’s responsive submissions stated that neither the 1995 nor 1999 registration was hidden. It submitted that the 1995 registration was not identified by Victoria Police until 2018, and that the Commission was notified as soon as its significance was understood. Victoria Police further submitted that the 1999 registration was disclosed to IBAC in 2014 and referred to extensively in hearings held as part of the Kellam inquiry. While not referred to in the body of the Kellam Report, it submitted that the existence of the 1999 registration is frequently referred to in the report’s annexures, such that a reader would have no doubt Ms Gobbo had previously been registered as a human source. In any case, Victoria Police asserted these earlier registrations were not relevant to the proceedings in question, which focused on disclosure to the seven named individuals only.¹⁰⁴³

The Commission accepts Victoria Police’s submission that the 1995 registration was not found by officers until June 2018, but disagrees that it was not relevant to the High Court proceedings that were then underway. It was of relevance, even if only peripherally. The submission that the 1999 registration was disclosed to the Supreme Court and thus to the High Court through the annexures to the Kellam Report is not accepted, as the annexures tendered made only oblique references to it and it was not easily identifiable.

The Commission is satisfied that Victoria Police failed to inform the High Court of Ms Gobbo’s previous registrations as a human source in 1995 and 1999. In particular, the non-disclosure of the 1995 registration to the High Court when it was located by Victoria Police in June 2018 raises questions about its desire and ability to comply with its disclosure obligations.

Conclusions and recommendations

Police officers perform a vital and difficult role in our society. Their efforts to detect, disrupt and prevent criminal activity help to keep the community safe, hold wrongdoers to account and bring about justice for victims. In undertaking this work, they are entrusted with significant powers and authority, and their actions can have a direct impact on whether the criminal justice system as a whole operates fairly, effectively and in line with individual rights and community expectations. Consequently, when police officers fail to uphold their duties and obligations faithfully and according to law, it can have detrimental consequences—for individuals, victims, the policing organisation and its other officers, the broader community, and the integrity of the criminal justice system.

This debacle began when Ms Gobbo, a law student with a propensity for deception and a fascination with criminals and police officers, committed offences that led to her first registration as a human source by Victoria Police. A decade or so later, when Ms Gobbo had developed an extensive professional and social network of organised crime figures as a criminal defence barrister, and the Victorian community was on edge over the gangland wars, astute detectives sensed an opportunity. They knew of Ms Gobbo’s potentially useful criminal connections and also of certain vulnerabilities—she had recently suffered a stroke, and her own clients were threatening her. Despite the obvious risks, Victoria Police registered Ms Gobbo as a human source for the third time and went on to collect vast amounts of information from her to help secure the convictions of organised crime figures.

The Commission is satisfied that some police involved were aware that it was a precarious legal and ethical situation for a criminal defence lawyer to assist police contrary to the interests of her own clients. Putting these reservations aside and without obtaining legal advice, Victoria Police and its officers enabled and at times encouraged Ms Gobbo to breach her professional duties, disregarded their disclosure obligations, and corrupted the prosecutions of those people identified by the High Court and perhaps many more.

For years, Victoria Police ignored opportunities to seek legal advice about the situation or to take other steps to remedy the increasingly compromised situation. They worked to keep their conduct secret from the prosecution, accused persons and the courts—in part to protect Ms Gobbo’s safety, but also to protect their own reputations and their hard-earned convictions. They showed contempt for a fundamental human right and premise of our democracy, the rule of law—that everyone, no matter their identity or reputation, the severity of their alleged crime or the strength of the prosecution case, is entitled to a fair trial according to law.

The Commission acknowledges the various organisational conditions and factors that allowed this conduct to occur—poor governance and leadership, a jigsaw of reporting arrangements resulting in dispersed accountability, deficient supervision of the officers working directly with Ms Gobbo, and a substandard policy framework and training. These issues are discussed further in Chapter 9.

But whatever organisational factors may be relevant, they do not absolve officers of individual responsibility. It may be that certain officers did not have the full and complete picture of Victoria Police’s engagement with and use of Ms Gobbo at the time—but they knew enough about what was occurring to require them, consistent with their duties to uphold the law and serve the community, to take a different course.

Similarly, the Commission rejects the assertion of some Victoria Police officers that they were not responsible for certain matters related to Ms Gobbo’s use and management and the information she provided as a human source because this was not within their chain of command.

In the main, these were senior, experienced officers with a comprehensive understanding of the workings of the criminal justice system, the rights of individuals within that system, and the very real possibility that dispensing with the rules of legal professional responsibility, evidence or disclosure may lead to a failed prosecution. It is a convenient but untenable excuse to suggest that they could not intervene when they had the opportunity, ability and responsibility to do so.

In Chapter 12 of this final report, the Commission has made recommendations to reform Victoria Police’s human source management framework, to ensure these events will not be repeated. But even the best systems can be undermined by deliberate or grossly negligent conduct. The independent external oversight regime recommended in Chapter 13 should ensure any such future conduct is exposed promptly. With the implementation of those recommendations, along with this Commission’s exposure of past police conduct, and the independent investigation of current and former officers as recommended below, Victorians can be satisfied their criminal justice system is again working as it should, now and into the future.

Further investigation

On the material before it, the Commission is satisfied that the conduct of current and former Victoria Police officers should be independently investigated and a determination made as to whether there is sufficient evidence to establish the commission of a criminal offence or offences, and/or a disciplinary offence or offences in the case of current officers. The Commission has drawn this conclusion having considered Counsel Assisting submissions, the matters raised in responsive submissions, and other evidence obtained during the inquiry.

The Commission recommends in Chapter 17 that the Victorian Government establishes a Special Investigator with powers to investigate the conduct of Ms Gobbo and current and former Victoria Police officers. The rationale for establishing a Special Investigator is discussed in that chapter. In short, the Commission considers that it would be inappropriate for Victoria Police to conduct this investigation; notes that IBAC lacks the power to investigate all of Ms Gobbo’s conduct in its entirety; and notes that it would be an inefficient use of resources for one body to investigate matters involving Ms Gobbo and another the current and former officers of Victoria Police. The establishment of the Special Investigator proposed in Recommendation 92 would, in the Commission’s view, best ensure the conduct is comprehensively, efficiently and independently investigated to determine if there is sufficient evidence to bring a disciplinary or criminal charge or charges against all or any persons involved.

While this will necessarily involve consideration of conduct and events discussed in this final report and Counsel Assisting submissions, the Commission notes that there are many people mentioned in these documents, both Victoria Police officers and other individuals, because they are relevant to the narrative—not because the Commission considers their conduct to be improper.

The Commission’s investigative and reporting role has elicited a very considerable body of material regarding the impact of this once hidden conduct, some of which will be inadmissible in a court or disciplinary hearing. The Special Investigator’s responsibilities will include consideration of whether there is sufficient admissible evidence to support criminal and/or disciplinary charges.

The role of Executive Director, Legal Services

The Commission considers that it is critical that the Chief Commissioner and Victoria Police Executive Command have the benefit of senior, independent legal advice to inform operational decisions that involve complex legal issues and risks. Currently, the most senior legal adviser within Victoria Police is the Executive Director, Legal Services. This role has a dual function—both providing legal advice to the Chief Commissioner and Executive Command; and overseeing the management of a large number of legal services personnel and police prosecutors.

It is critically important that Victoria Police Executive Command is given frank and independent legal advice, even, and in fact especially, when this may be challenging or uncomfortable. This goal may be more difficult to achieve if Victoria Police’s most senior legal role—that of Executive Director, Legal Services—is or is seen to be part of the command structure and/or is able to be occupied by the same person over many years.

The Commission notes that several Victorian Government departments, statutory entities and private sector organisations have created general counsel roles to provide legal advice to senior executive and management. It may be beneficial for Victoria Police to consider whether the creation of a general counsel role, instead of or in addition to the role of Executive Director, Legal Services, would help to achieve the level of independence required in the provision of legal advice to Executive Command.