The Saturday Paper

Martin McKenzie-Murray on the Nicola Gobbo inquiry

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.

- Martin McKenzie-Murray is a Melbourne-based writer. Martin McKenzie-Murray worked as an adviser to the chief commission­er of Victoria Police in 2013-14.

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.

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 selfprotec­tion 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 selfintere­sted, 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.”

 ??  ?? Police informant Nicola Gobbo. Justin McManus
Police informant Nicola Gobbo. Justin McManus

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