Smallwood, Paul --- "Nicola Gobbo and Victoria Police: The corruption of Victoria's criminal justice system" [2020] PrecedentAULA 68; (2020) 161 Precedent 14

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NICOLA GOBBO AND VICTORIA POLICE

THE CORRUPTION OF VICTORIA’S CRIMINAL JUSTICE SYSTEM

By Paul Smallwood

In AB (a Pseudonym) v CD (a Pseudonym); EF (a Pseudonym) v CD (a Pseudonym),^[1] Nicola Gobbo (known as ‘EF’) was found to have breached her duties to her clients and to the court by acting as counsel for her clients while simultaneously disclosing information against them to Victoria Police. Alongside her ‘fundamental and appalling breaches’^[2] Victoria Police was also found to be guilty of ‘reprehensible conduct’,^[3] having been ‘involved in sanctioning atrocious breaches of the sworn duty of every police officer’^[4] by knowingly encouraging Ms Gobbo’s actions.

This article will focus on the aftermath of the High Court decision, which ignited a string of criminal appeals, led to the establishment of a Royal Commission, and resulted in amendments to Victoria’s criminal appeal procedure.

HIGH COURT DECISION AND THE ROYAL COMMISSION

The corruption of Victoria’s criminal justice system was revealed by the High Court in its unanimous and unprecedented judgment.

The Court held that despite the obvious public interest in maintaining the anonymity of police informers, and the importance of ensuring that assurances of anonymity are honoured, in this case:

‘... the prosecution of each convicted person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows ... that the public interest favouring disclosure is compelling: 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’ [emphasis added].^[5]

Victoria Police had spent years resisting disclosure to those whose proceedings might have been corrupted. The litigation – proceeded through the Supreme Court of Victoria^[6] and the Court of Appeal^[7] – has cost the state millions of dollars, and those costs continue to escalate. In December 2018, the Royal Commission into the Management of Police Informants was established to identify and examine the cases that may have been corrupted. This has given rise to more litigation, mostly in relation to non-publication orders.^[8] The Royal Commission’s final report is scheduled to be presented to the Victorian Governor by 30 November 2020.

SUBSEQUENT CONVICTION APPEALS

There are a number of pending conviction appeals before the Court of Appeal focusing on the use of Ms Gobbo as a police informant, including appeals commenced by multiple prisoners convicted of having a role in concealing ecstasy tablets in large cans labelled ‘peeled tomatoes’ (referred to as the ‘tomato tins’ cases).^[9] It might be anticipated that there will be a flood of further conviction appeals upon the release of the Royal Commission’s final report. The administration of criminal justice in Victoria, challenged as it has been by the pandemic such that no juries have been empanelled since March 2020, will soon be met with the re-examinations that were foreshadowed by the High Court.

The Court of Appeal has, at the time of writing, heard two appeals in which it was asserted that a substantial miscarriage of justice arose from Ms Gobbo’s misconduct. In one, Jan Visser filed an application in July 2020 arising from the ‘tomato tins’ cases for which judgment has been reserved.^[10] In the other, the appellant was Faruk Orman.

Orman v The Queen

In June 2007, Mr Orman was arrested and taken into custody on allegations that he was complicit in a murder which had occurred in 2002. Ms Gobbo represented him, although she did not ultimately appear at the trial. In September 2009 he was convicted and in November 2009 he was sentenced to 20 years’ imprisonment with a fixed non-parole period of 14 years.^[11] Mr Orman applied for leave to appeal against his conviction which was refused in September 2010.^[12] He then applied for special leave to the High Court which was refused in November 2011.^[13]

What was not known to Mr Orman or the courts at the time, only to be revealed some eight years later, was that:

1. From October 2002 to August 2008, Ms Gobbo represented a person (Witness Q) who provided critical evidence in the murder case against Mr Orman.

2. In November 2007, at a time when she was engaged to act on behalf of Mr Orman, Ms Gobbo improperly took active steps to ensure that Witness Q gave evidence against Mr Orman in the murder trial.^[14]

It was clear that Ms Gobbo was acting for both the witness and the accused. She took active steps to ensure that one of her clients gave evidence against another of her clients. That evidence was not peripheral; it was critical to the prosecution’s case against Mr Orman. In February 2019, Mr Orman filed a petition of mercy with the Victorian Attorney-General who referred his case to the Court of Appeal in June 2019.^[15] In determining his appeal, the Court said:

‘Ms Gobbo, while acting for Mr Orman, pursued the presentation of the principal evidence against him on the charge of murder. Self-evidently, that conduct was a fundamental breach of her duties to Mr Orman and to the Court. We refer, as did the Director, to the following statement of the High Court in Tuckiar v The King:

“Our system of administering justice necessarily imposes upon those who practise advocacy duties which have no analogies, and the system cannot dispense with their strict observance.”

... 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.’^[16]

Mr Orman was acquitted after having spent 4,417 days – more than 12 years – in gaol for a crime he steadfastly maintained he did not commit.

Neither Ms Gobbo nor Victoria Police wanted Mr Orman to know about her role in securing his wrongful conviction. Neither wanted the substantial miscarriage of justice in his case to come to light. Counsel Assisting the Royal Commission submitted that it should have been apparent to Victoria Police that Ms Gobbo’s involvement carried a risk of a miscarriage of justice, and steps were not taken to prevent this because she was a ‘useful ally to investigators’^[17] as a police informant.^[18]

Counsel Assisting further submitted that:

• Ms Gobbo provided information about Mr Orman’s ‘weaknesses’ and ‘vulnerabilities’ to Victoria Police;^[19]

• Disclosure was resisted in order to hide Ms Gobbo’s conflict;^[20]

• Victoria Police, including the police officer responsible for overseeing the case against Mr Orman, knew of Ms Gobbo’s conflict;^[21]

• The Office of Public Prosecutions and the prosecutors acting in Mr Orman’s committal hearing knew that Ms Gobbo had acted for both Mr Orman and Witness Q;^[22]

• Victoria Police took steps to prevent Ms Gobbo from being ‘compromised’ during Mr Orman’s committal hearing;^[23] and

• Ms Gobbo advised Victoria Police to resist certain disclosure to Mr Orman, which would have revealed 30 to 40 ‘lies and contradictions to [Witness Q’s] statement’.^[24]

CHANGES TO VICTORIA’S CRIMINAL APPEAL PROCEDURE

Victoria’s criminal appeal procedure was amended after Mr Orman’s appeal, with the introduction of legislation providing for second or subsequent appeals to the Court of Appeal.^[25] The Court may grant leave to appeal under the new provision in the Criminal Procedure Act 2009 (Vic) if it is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on appeal.^[26] It must allow the conviction appeal if it is satisfied that there has been a substantial miscarriage of justice.^[27] In her second reading speech relating to the amending legislation, the Victorian Attorney-General said:

‘The need for a second or subsequent right arises because currently under Victorian law, a person is only entitled to appeal once to the Court of Appeal. After this appeal is determined, the matter is closed. While this is not an issue in the vast majority of cases, in rare circumstances – for example, where evidence is uncovered that the defendant did not know about at their trial and which shows that there may have been a substantial miscarriage of justice – a defendant may not have an appeal avenue where fairness dictates that their case be reconsidered. Experience both in Victoria and in Australia more broadly suggests that fortunately, cases where a substantial miscarriage of justice has occurred are rare. However, in these rare cases, it is appropriate that an individual has recourse to an appeal avenue that is robust, transparent and fair.’^[28]

Previously, a petition of mercy was the only avenue to avert substantial miscarriages of justice when appeal rights had been exhausted. The Victorian Attorney-General stated that this avenue is ‘undesirable, as it requires decisions to be made in private by the Executive government, rather than being subject to a transparent and public process through the Courts.’^[29] She remarked further on the lack of a formal legal process and lack of transparency behind petitions of mercy, which also carry the risk of being ‘considered by a government through the lens of the political issues of the day’.^[30]

It might be expected that the new provision, invoked only once to date (in a case unrelated to Ms Gobbo^[31]), will soon have much work to do.

FUTURE PROCEEDINGS

Counsel Assisting the Royal Commission identified multiple types of misconduct that might have arisen as a consequence of Ms Gobbo’s informing, including:

• perverting (or attempting to pervert) the course of justice;

• conspiring to pervert the course of justice or to attempt to pervert the course of justice;

• obtaining property or financial advantage by deception;

• breach of confidence;

• breach of fiduciary duties;

• breach of legal professional privilege;

• ethical and professional misconduct;

• misconduct in public office; and

• regulatory misconduct.^[32]

Further, Counsel Assisting submitted that 117 cases may have been affected by the use of Ms Gobbo as a human source by Victoria Police.^[33] Those submissions shed some light on the sheer scale of what lies ahead. Conviction appeals will need to be determined. Re-trials may need to be heard if appeals are allowed. Charges will need to be considered against those who appear to have engaged in criminal misconduct. Untangling the corruption that has occurred will take many forms, in many proceedings, over many years. Yet, as the High Court said, this is what the integrity of the criminal justice system demands.

Paul Smallwood is a barrister at the Victorian Bar who practises in criminal law and administrative law.

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^[1] [2018] HCA 58; (2018) 93 ALJR 59.

^[2] Ibid, [10].

^[3] Ibid.

^[4] Ibid.

^[5] Ibid.

^[6] AB (a Pseudonym) & EF (a Pseudonym) v CD (a Pseudonym) [2017] VSC 350; EF (a Pseudonym) v CD (a Pseudonym) [2017] VSC 351.

^[7] AB (a Pseudonym) v CD (a Pseudonym) & EF (a Pseudonym) [2017] VSCA 338.

^[8] Chief Commissioner of Victoria Police v Chairperson of the Royal Commission into the Management of Police Informants [2020] VSCA 214; Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police [2019] VSCA 154; AB (a Pseudonym) v CD (a Pseudonym) & EF (a Pseudonym) (No. 2) [2019] VSCA 95; AB (a Pseudonym) v CD (a Pseudonym) & EF (a Pseudonym) [2019] VSCA 28.

^[9] Antonios Mokbel has commenced an appeal.

^[10] See Visser v The Queen [2015] VSCA 168.

^[11] R v Orman [2009] VSC 538.

^[12] Orman v The Queen [2010] VSCA 246.

^[13] Orman v The Queen [2011] HCATrans 18.

^[14] Orman v The Queen [2019] VSCA 163; (2019) 59 VR 511, 512–3.

^[15] Ibid.

^[16] Ibid, 513 (citations omitted).

^[17] Royal Commission into the Management of Police Informants, Counsel Assisting submissions (Report, 26 June 2020) Vol. 2, 100.

^[18] Ibid.

^[19] Ibid, 709–10.

^[20] Ibid, 710.

^[21] Ibid, 711–12.

^[22] Ibid, 718.

^[23] Ibid, 718–21.

^[24] Ibid, 722.

^[25] Criminal Procedure Act 2009 (Vic), pt 6.4.

^[26] Ibid, s326C(1).

^[27] Ibid, s326D(1).

^[28] Victoria, Parliamentary Debates, Legislative Assembly, 17 October 2019, 3689 (J Hennessy, Attorney-General).

^[29] Ibid.

^[30] Ibid.

^[31] Roberts v The Queen [2020] VSCA 58.

^[32] Royal Commission into the Management of Police Informants, Counsel Assisting submissions (Report, 26 June 2020) Vol. 1, 59–75 and 108–17.

^[33] Ibid, 126.