As the royal commission into the handling of police informants releases its final report, it’s been revealed that Victoria Police’s use of gangland lawyer Nicola Gobbo as an informant may have contaminated more than 1000 convictions. By Martin McKenzie-Murray.
The Nicola Gobbo report
Two years ago, the High Court found Victoria Police “guilty of reprehensible conduct” that had “debased fundamental premises of the criminal justice system” for their sustained use of gangland lawyer Nicola Gobbo as an informant against her own clients. This week’s final report of Victoria’s Royal Commission into the Management of Police Informants reaffirmed the court’s ruling.
If the final report held few revelations, it was because they’d already been disclosed. While the report is enormous – 1000 pages, 111 recommendations – it was preceded by two years of hearings, an interim report and the High Court’s damning 2018 judgement, which also had the effect of unveiling the previously suppressed transcripts of a long train of litigation.
But the report still shocked in revealing the scale of possible judicial contamination: 1011 convictions have potentially been tainted. Most are peripheral, but 124 are not. Two convictions have already been quashed. Scores of killers and drug barons will now be dreaming of release or retrial.
Critically, the royal commission recommended the establishment of a special investigator to explore prosecutions against police over the Gobbo scandal. This finding will make them nervous: “The Commission does not accept that there was no knowing impropriety on the part of any officer involved in these events.”
The long, secret collaboration of Victoria Police and Nicola Gobbo has resulted in an abuse of the criminal justice system without global precedent, and of which the reverberations – and appeals – will be felt for years.
Nicola Gobbo’s strange, historically destructive relationship with police began early. She was a 20-year-old law student when she first secretly conspired with police against her drug-dealing boyfriend. It was 1993 and the couple’s house in Carlton had just been raided. Gobbo told police where the drugs were stashed, then volunteered additional information.
Her co-operation wasn’t purely self-protection but unusually enthusiastic. “Patterns of behaviour are discernible even at this early stage of Ms Gobbo’s involvement with police,” this week’s report says. “… Police officers from this period noticed that Ms Gobbo was not just willing to assist, but conspicuously eager to do so … She cultivated or engineered opportunities to meet with and communicate information to police. She seemed to relish her social contact with them …
“Ms Gobbo’s duplicitous and improper conduct spanned a period of more than 15 years. It started before she was admitted as a lawyer in the early 1990s, and became progressively more entrenched and destructive until her third period as a human source for Victoria Police came to an end in 2009.”
In multiple testimonies and media interviews, Gobbo advanced several explanatory narratives for her behaviour. In one, she was the legal ingenue whose naivety plunged her into some deep waters with some serious criminals. In another, she was a crusader – sickened by the crimes of her clients, and their seeming impunity, she turned rogue to bring them to justice. By another telling, she was a terribly sick woman who feared for her life and whose betrayals were necessary – it was them or her.
Each explanation was challenged, in one way or another, by the commission.
“Looking back, I wanted to belong,” Gobbo testified from a secret location in February. “I wanted to be the holder of every bit of information about every drug trafficker up and down the supply chain. It was mostly my, pathetic as it sounds, my inability to say no and my need to be – I guess to be wanted or to be valued or feel valued.”
Gobbo spoke of the death of her father when she was young, and her subsequent need for approval from older men. Perhaps this was all one long, destructive quest for validation, but this rings false. Gobbo offers herself as weak – “pathetic” – someone to whom things are done. But the commission establishes how “proactive and energetic” the lawyer was in her deceptions. “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.”
Gobbo’s strangeness – the extremity of her behaviour, and the circus of her rationalisations – exerts a strong gravity. One that risks distracting from the systemic and destructive failings of Victoria Police. “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,” the commission noted, “and by the institutional shortcomings within Victoria Police that allowed her improper and unethical conduct to commence, continue, escalate and flourish over many years.”
The sins of Victoria Police might be broadly framed by two categories: the corrupt use of Nicola Gobbo; and the sustained attempt to suppress the fact. Regarding the first, in its submissions to the royal commission, Victoria Police pleaded the context of the use of Gobbo be understood: Melbourne’s gangland wars, which were characterised by escalating – and increasingly public – executions.
The commission accepted this context, sympathised with the pressure police faced, but could not accept this as exculpatory. At least 100 officers knew of the use of Gobbo, officers too willing to bend justice or too gifted at wilfully maintaining their ignorance.
Such a culture was allowed by senior command. This included the then assistant commissioner, Simon Overland, who would later become police chief. “Having considered Mr Overland’s contentions, the Commission is of the view that the most likely reason that he did not obtain legal advice [about the use of Gobbo] was that he feared it would limit the information he hoped to obtain from Ms Gobbo to help solve the gangland wars,” the report said.
As another former chief commissioner, Graham Ashton, who retired earlier this year, told a confidential inquiry established by the Independent Broad-based Anti-Corruption Commission in 2015: “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.”
In this week’s report there are transcripts of recorded conversations between Gobbo and her police handlers. Many suggest near-flippancy, so evasive are both parties to the reality. “Their exchanges suggest they were enabling each other to avoid confronting the problem they jointly created,” the report reads.
Then there is the matter of Victoria Police’s long battle against exposure. The commission’s report neatly summarises it: “After three confidential reviews, and two years in which Victoria Police fought to prevent the DPP [Director of Public Prosecutions] from disclosing to certain people that their convictions may have been tainted, Ms Gobbo’s use as a human source was revealed to affected persons and the Victorian community, following the High Court’s decision in 2018. This revelation occurred some 13 years after Victoria Police registered Ms Gobbo as a human source for the third time.”
In years of litigation, Victoria Police invoked public interest immunity (PII) as the reason why their use of Gobbo should not be revealed by the DPP to those whose convictions may have been tainted by it. If her identity was revealed, they said, she’d very likely be murdered.
But the principle of PII is not infinitely elastic, and if the protected information has been corruptly obtained, then you may forfeit the right to this special secrecy. Nor may this immunity be cited as reason to not adequately disclose evidence to a defence team.
The commission makes clear Victoria Police’s long fight against exposure was self-interested, legally weak and very expensive. The agency was censured by the commission for its slow and incomplete provision of information and accused by the DPP of misleading the High Court. “The Commission is also concerned that so many officers across different levels within Victoria Police did not take adequate responsibility for their part in the events that were the subject of this inquiry,” the report says.
Ironically the commission’s investigation into police conduct was itself thwarted by public interest immunity. The commission’s terms of reference included investigating whether Victoria Police had similarly used other lawyers as informants. While it didn’t find evidence for this, the report noted that its investigation was constrained because Victoria Police had refused to submit the files of 11 confidential sources, citing PII.
This report should not be viewed in isolation. Only a week earlier, a separate inquiry into the 2017 Bourke Street massacre – James Gargasoulas’s vehicular rampage in Melbourne’s CBD – released a report highly critical of Victoria Police. “A remarkable confluence of events emerged in favour of the offender, including a set of systemic deficiencies in the response of Victoria Police,” the inquest’s report stated. “… These deficiencies included poor planning; a lack of assertive leadership, supervision and coordinated command and control; lack of adequate resources; inadequate communications between units across police radio channels; failure to follow up and action essential inquiries and resources, inflexible attitudes and policies; loss of objectivity; a staunch belief that negotiating with a delusional person was the best chance of bringing the incident to a conclusion; and, ultimately a reluctance to act assertively for fear of recrimination.”
Then there has been Victoria’s recent inquiry into its quarantine hotels, from which Melbourne’s devastating second wave of Covid-19 infections was seeded. During these hearings, senior police officers explicitly contradicted each other on the question of why private security guards were employed and the police role kept peripheral. Commander Tim Tully told the inquiry that it was then chief commissioner Ashton’s view that private security should form the front line of the hotel force, and not police. Days later, Ashton denied ever saying this.
As to the underlying issues binding these three inquiries, and the work facing Victoria Police in their aftermath, there is a broader view to take. The Australian Defence Force is another institution facing a profound reckoning, and in this week’s Gobbo report there was a reflection on organisational culture that resonated with the dark revelations of the Brereton report into war crimes: “An organisation is the sum of its parts; it is not an entirely separate entity that functions independently of the people within it,” it read. “If the organisation and systems were flawed, it was because the individuals who made up the organisation and developed its systems, particularly senior leaders, lacked the moral clarity, vision and ability to fix those flaws.”
Martin McKenzie-Murray worked as an adviser to the chief commissioner of Victoria Police in 2013-14.
This article was first published in the print edition of The Saturday Paper on Dec 5, 2020 as "Taking aim".
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