Use of Defence Lawyer As Informant Labelled ‘Negligence in the Highest Order’

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Victorian Police

The failure of Victoria Police to obtain legal advice before persuading and paying a criminal defence barrister to inform on her own clients was labelled in a 2015 report by the Independent Broad-based Anti-Corruption Commission (IBAC) as ‘negligence in the highest order’.

Late last week, the Royal Commission into the use of defence lawyer Nicola Gobbo (‘Lawyer X’) heard evidence that Victoria Police did not seek advice about the potential ramification of the conduct until years after they stopped using her.

The brazen decision to pursue convictions at any cost without seeking legal advice about procuring unlawful conduct led to the arrest and charge of at least 386 people, including drug kingdpin Tony Mokbel who was later convicted of a string of offences, and has put dozens of convictions at risk.

Police tried for years to suppress the information, but the High Court made clear it had to be released in the public interest.

The Court was scathing in its criticism of both Ms Gobbo and Victoria Police, stating:

“… that the prosecution of each convicted person was corrupted in a manner which debased fundamental premises of the criminal justice system.

“And the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each convicted person’s conviction be re-examined in light of the information.

“Likewise, Victoria police were guilty of reprehensible conduct in knowingly encouraging [Ms Gobbo] as they 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.”

A law unto themselves

Apparently, Victoria Police saw no issue with being complicit in, and indeed encouraging and paying for, abhorrent breaches professional obligations such as the duty to act in a client’s best interest and not to engage in a conflict of interest.

The organisation was so brazen that it did not seek advice when Ms Gobbo was originally registered as an informant in 1995 after being charges with a drug offence, for which she later escaped conviction.

The also failed to seek advice before Ms Gobbo was used again in 1999, and then from 2005 to 2009.

When placed on the witness stand for his second day of evidence before the Royal Commission last week, Assistant Commissioner Neil Paterson admitted nothing had been to check the legal consequences of using a lawyer to double-cross her clients.

The Commission heard police only sought legal advice in August 2011, two and a half years after Ms Gobbo was officially deregistered as a police informant.

This was after years of concerns being raised by junior officers.

Protecting themselves

When police ultimately sought advice in 2011, it was not to ensure the integrity of the criminal justice or the protection of convictions, but due to concerns the use of Lawyer X would be exposed and their own reputations would thereby be tarnished.

It was around this time that the Petra taskforce sought to use Ms Gobbo as a witness over the murder of police informer Terence Hodson and his wife, Christine, in 2004.

However, the main concern was that Gobbo’s evidence would include the disclosure of her years of being a police informant.

Failure of senior police

Assistant Commissioner Paterson agreed that the “highest echelons” of Victoria Police knew about the use of Ms Gobbo yet did nothing to prevent the dangerous abuse of the rule of law.

He testified that he assumed then-Commissioner Christine Nixon knew about the arrangement and that the concerns of junior members of the force were raised with Simon Overland, then Assistant Commissioner. Mr Overland was later promoted to the role of Chief Commissioner.

Under questioning by Counsel Assisting the Commission, Chris Winneke QC, Assistant Commissioner Paterson agreed the concerns of the junior officers were ignored, claiming he was “very surprised” about this.

“My expectation would be that they were fully informed and making themselves aware of all the matters,” he testified.

The plot thickens

The Commission also heard that Victorian Police attempted to conceal Ms Gobbo’s relationship with Paul Dale, a Detective in Drug Squad Victoria.

Gobbo and Dale were in contact in 2003 when drugs and cash were taken from an East Oakleigh drug house linked to Tony Mokbel.

Charges against Mr Dale were dropped when the key witness against him, Mr Hodson, was murdered.

Mr Winneke questioned why this “significant history” was left out of Assistant Commissioner Paterson’s statement to the Commission.

He answered that he was only providing a “summary” to the Commission and that detailing the whole relationship between Ms Gobbo and police would require “volumes”.

Internal police reports

The Commission has further been informed about the contents of two reports into the handling of Lawyer X; a 2012 report by former Police Chief Commissioner Neil Comrie and a 2015 report by the Independent Broad-based Anti-corruption Commission (IBAC).

Mr Comrie labelled Victoria police “grossly inadequate” in their assessment of the risks involved in using Ms Gobbo as an informant.

He found that police handlers encouraged Ms Gobbo to provide information that was clearly protected by legal professional privilege, and that there was no proper risk assessment.

He remarked, “Victoria Police’s Legal Services department should have been consulted at the outset and the advice should have been reflected in the risk assessment.”

The Commission was told that Mr Comrie’s report found that former Assistant Commissioner Dannye Moloney told Mr Overland of the risks of using Ms Gobbo as an informant, but Overland did nothing about it.

The saga is indeed suggestive of the lengths Victoria Police were willing to go to undermine the integrity of the criminal justice system.

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Zeb Holmes

Zeb Holmes

Zeb Holmes is a lawyer with a passion for social justice who advocates criminal law reform, and a member of the content team at Sydney Criminal Lawyers®.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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