Chapter 2

Introduction

The Commission’s inquiry, taken at its broadest, had two essential purposes: to identify potential miscarriages of justice, and to restore the community’s faith in the criminal justice system by exposing past failures and recommending measures to avoid such failures in the future.

The Commission was established to inquire into the conduct of Ms Nicola Gobbo in giving information about her clients to police, and the conduct of Victoria Police in using her as a human source. Their conduct—which resulted in the conviction and imprisonment of numerous individuals—has had significant implications not only for those whose cases may have been directly or indirectly affected, but also for the integrity of our criminal justice system.

Members of the public might question the need to scrutinise and denounce seemingly effective intelligence-gathering by the police. The fact that Victoria Police was able, with Ms Gobbo’s assistance, to secure convictions against those accused of committing serious violent and drug-related offences could be regarded as a positive outcome for the community.

As the High Court of Australia identified, however, the conduct of Ms Gobbo and Victoria Police amounted to a corruption of the criminal justice system.¹ Police are not entitled to pursue suspects at any cost—the community’s laws impose constraints on their power. Lawyers cannot freely hand over information about their clients to police—if they do so, they risk breaching their professional duties and obligations, and corrupting the justice system.

These laws exist because the community collectively places great importance on ensuring that the criminal investigation and trial process is fair, so that the public can have confidence that its criminal justice system is in fact just.

When the State prosecutes, convicts and punishes a citizen, it uses its considerable power and resources. To prevent it from abusing that power against individual citizens, it must observe well-established principles and processes to ensure, as far as possible, that there is ‘equality of arms’ between the parties—that is, that both the prosecution and the accused person have equal opportunity to make their case.² Consistent with the rule of law and the principles underpinning the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter), these arrangements apply no matter how serious the crime, and regardless of the identity of the accused person.³

Fair trial principles are therefore fundamental tenets of our democratic society. They protect unjustified incursions into the freedom of all citizens and help ensure that the same law applies to every person in society equally. Fairness underpins and fosters public trust and confidence in, and therefore the legitimacy of, the criminal justice system. The system cannot operate effectively if it does not command the public’s trust and confidence.

In our criminal justice system, failure by police and lawyers to comply with fair trial principles, laws governing investigation methods and professional duties can have serious consequences. The corruption of the fair trial process can result in, among other things, an accused person not having to face trial, a conviction being overturned, an order for acquittal, a new trial or a person being released from custody.

This chapter provides a brief overview of the criminal justice system, the roles and responsibilities of those working within the system, and the principles that need to be observed if it is to operate effectively.

It focuses on three aspects of the criminal justice system that are central to the Commission’s inquiry:

• the use of human sources to prevent, detect and solve crime
• police officers’ duties and obligations
• lawyers’ duties and obligations.

In particular, this chapter explains how principles and processes are applied to strike an appropriate balance between supporting police to combat crime and protecting citizens’ fundamental rights.

Later sections of this report consider these topics in greater detail when analysing the conduct of Ms Gobbo and Victoria Police, and examining the measures required to address Victoria Police’s management of human sources, in particular those where legal obligations of confidentiality or privilege may arise.

Overview of Victoria’s criminal justice system

Criminal justice system foundations

Our criminal justice system is founded on two broad imperatives:

• protecting community safety by empowering the State—through its agencies, to detect, investigate and prosecute crime; and through its independent courts, to convict and punish guilty offenders
• protecting individual citizens by guarding against the State and its agencies exercising their power arbitrarily, corruptly and/or unfairly.

These two imperatives are fundamental to our democratic society; and laws, principles and procedures have evolved over centuries to strike the appropriate balance between them. Individually, these laws, principles and procedures may sometimes seem to be obscure or technical, or even obstacles to the effective delivery of justice. Yet collectively, they enable the criminal justice system to uphold each of these fundamental imperatives, without one unduly undermining or compromising the other.

There are serious consequences for not giving these imperatives their due weight. The risks of not facilitating the investigation, prosecution and punishment of criminal activity are obvious. Our individual and collective safety relies on such conduct being publicly condemned, wrongdoers being held accountable for their actions, and action being taken to prevent further criminal activity. Without an effective criminal justice system, our society would descend into anarchy and vigilantism.

Accordingly, as a community, through Parliament we empower executive agencies within the criminal justice system to protect us from harm and to prosecute those alleged to have caused harm in independent courts. This is achieved by establishing and resourcing these agencies (the police service, prosecution authorities, and corrections services), and legislating to give them functions and powers so they can do their work. It is also achieved by establishing and resourcing an independent judiciary and court system, which perform a critical role in our democracy.

There are also consequences if these agencies do not exercise their powers lawfully, rigorously and competently. To properly administer justice, extensive checks and balances are needed throughout the criminal justice system. These include ensuring that those exercising discretionary executive power act independently, follow established principles of fairness, comply with professional duties, and act with integrity, appropriate transparency and accountability.

If the criminal justice system does not work in this way, there are risks that:

• people could be vulnerable to arbitrary, unjust, corrupt or incompetent action by the State
• innocent people could be wrongly convicted and punished, and guilty people could avoid prosecution, conviction or punishment
• the community could lose confidence and not engage with the criminal justice system—this could include victims opting not to seek the State’s protection, witnesses not cooperating with authorities, offenders not complying with court decisions and sanctions, jurors not convicting offenders even when evidence tends to suggest guilt beyond reasonable doubt, and wrongdoers not being deterred from committing crime.

The practical risks for individual cases are equally as serious. If criminal investigations or prosecutions are so compromised that an accused person is denied fundamental rights, then convictions may be overturned and alleged offenders may be released from custody. The time and effort expended, and paid for by the community, may be for nothing. If new trials are granted, victims may be forced to endure further proceedings long after the alleged offences occurred and the recollections of witnesses have faded. All of this can lead to diminished public trust in the criminal justice system.

Criminal justice system processes

Australia’s Constitution establishes a separation of powers between the Parliament, the executive government and the courts, as does Victoria’s Constitution.⁴ Under this system, the Parliament makes the law, the executive government—through the police and prosecution agencies—enforces the law, and independent courts (the judicial arm of government) interpret and apply the law.⁵ In the criminal justice system, the separation of powers principle means that the Parliament is responsible for passing laws about what acts constitute a crime, the executive government is responsible for investigating and prosecuting crimes and enforcing court sentences, and independent courts are responsible for interpreting the laws, deciding whether a person is guilty or not guilty and sentencing.

When a crime is alleged, the police will investigate, gather evidence and identify suspects. A person who is suspected of committing a crime might be arrested by the police and questioned about their involvement in the crime.⁶ If the police are satisfied that there is sufficient evidence to indicate that the suspect committed the crime, they may decide to charge the person with a criminal offence.⁷ Offences can be ‘summary’ (less serious) or ‘indictable’ (more serious). Less serious cases are tried in the Magistrates’ Court of Victoria and more serious offences are tried in the County Court of Victoria and Supreme Court of Victoria.

Once a person has been charged with a crime, their guilt or innocence is determined in independent courts. After being charged, the person becomes known as an ‘accused person’ or a ‘defendant’.

A criminal case is a contest between two opposing sides. On one side, the prosecution represents the State. It presents the case against the accused person and is responsible for proving beyond reasonable doubt that the accused committed the crime. On the other side, the defence represents the accused person, and challenges the prosecution’s case if the accused pleads not guilty.

If the accused person pleads guilty, or the court finds them guilty, they will be sentenced by an independent magistrate or judge. Punishment may include, among many sentencing options, a fine, a community correction order or a sentence of imprisonment.⁸ A person who has been found guilty and sentenced is known as an ‘offender’.

A person convicted by a court is generally entitled to appeal, or to apply to appeal their conviction and/or sentence to another independent court.⁹ A successful appeal can result in a conviction being overturned, a verdict of acquittal being entered, a re-trial being ordered or a sentence being varied.¹⁰ The appeal process is discussed in more detail in Chapter 5.

Roles and responsibilities

A range of agencies, office holders and professionals play critical and distinct roles in the criminal justice system. Events of most direct relevance to the Commission’s inquiry are those involving the police in collecting intelligence, and investigating and assisting in the prosecution of cases, and Ms Gobbo as a defence lawyer and human source. The roles played by the prosecution service and courts are also relevant to considering the legality of the conduct of Victoria Police and Ms Gobbo.¹¹

Police

The role of Victoria Police is to serve the Victorian community and uphold the law to promote a safe, secure and orderly society.¹²

The police are responsible for, among other things, investigating crime, collecting intelligence and evidence, interviewing witnesses and suspects, and arresting and charging suspects. Police officers use a range of investigative powers and methods to carry out these responsibilities, including gathering intelligence and evidence covertly—that is, without the knowledge of the public or the person against whom it is being used. Examples of covert intelligence-gathering methods include the use of surveillance devices and human sources.

Once a suspect has been charged, the police compile a ‘brief of evidence’ that contains details of the evidence to be led in court to support the charge. The accused person is entitled to see the brief of evidence so they can prepare their defence.

Police officers are sometimes required to give evidence in court about the processes by which they investigated the crime, and defence lawyers may be entitled to ask questions about this.

Police use of human sources, and police officers’ general duties and obligations, are discussed below.

Prosecution

Prosecutors represent the Crown and exercise the powers of the State in criminal cases. They appear in court to present the case against the accused person. In Victoria, most summary cases are prosecuted by police officers working in a specialised division of Victoria Police.¹³ Indictable cases are prosecuted by the Victorian Director of Public Prosecutions (DPP)¹⁴ or other lawyers who act for the DPP.¹⁵ Federal crimes are prosecuted by the Commonwealth Director of Public Prosecutions.

Like judicial officers, prosecutors play an important role in ensuring that an accused person receives a fair hearing in criminal cases. This promotes public confidence in the criminal justice system.¹⁶

The prosecution’s role, if there is sufficient evidence to support the charge, is to prove beyond reasonable doubt that the accused person committed the crime by leading the necessary evidence. In undertaking this role, the prosecution has obligations to act fairly.

Prosecutors’ duties, in particular their duty to disclose all relevant evidence, are discussed below.

Defence lawyers

Criminal defence lawyers play a vital role in providing advice to, and representing the interests of, accused persons at various stages of the criminal justice process. The right of a person charged with a criminal offence to communicate with a lawyer is enshrined in Victoria’s Charter.¹⁷

A defence lawyer’s involvement often begins when a person suspected of committing a crime is to be formally questioned by police. Before starting any questioning, the police must inform the person that they have a right to communicate with a lawyer, and they must allow this communication to take place.¹⁸ This helps ensure that a suspect is treated fairly and that their interests are protected from the beginning of their contact with the criminal justice system.

A defence lawyer’s role in the criminal justice system is to represent the interests of the accused person and to provide them with independent, competent advice. In some cases, particularly those involving serious crimes, a lack of legal representation may mean that an accused person is unable to receive a fair hearing.¹⁹

Defence lawyers advise an accused person to help them decide whether to plead guilty or not guilty.²⁰ This step is important not only in promoting an accused person’s right to be presumed innocent, but also in ensuring an efficient criminal justice system—if a person pleads guilty, the cost of and time taken in holding a trial can be avoided, as can any trauma for victims and witnesses in testifying at trial.²¹ An accused person who pleads guilty may receive a reduced sentence in recognition of these benefits.²²

If an accused person pleads not guilty and the case proceeds to a trial, a defence lawyer’s expertise can be critical in testing the evidence the prosecution puts forward. They may cross-examine witnesses and challenge aspects of the prosecution’s case to determine whether there are any gaps or doubts about the evidence being presented to establish the accused person’s guilt. They will discuss with the accused person whether to give or call evidence and whether to plead guilty to some or all of the charges, and will present any defence case. Without the assistance of a defence lawyer, the fairness of the process for the accused person may be compromised.

If an accused person pleads guilty or is found guilty by the courts, a defence lawyer also provides information helpful to the accused person to the sentencing magistrate or judge.

Lawyers’ duties to their clients and to the court are discussed below.

Courts

Courts are presided over by independent judicial officers (judges or magistrates) who have overall responsibility for the conduct and supervision of criminal cases in the court system.²³

The judicial officer’s most significant responsibility in a criminal case is to ensure that the accused person receives a fair hearing.²⁴ They also make rulings on legal issues, including what evidence can be used in the hearing.²⁵

Juries allow the community to be part of the criminal justice system. They are usually responsible for determining whether an accused person is guilty or not guilty in serious criminal cases.²⁶ In less serious matters, it is the judicial officer who decides whether to convict or acquit the accused person.²⁷

Judicial officers have sole responsibility for sentencing a person who has been found guilty of a crime. The sentencing process involves balancing competing principles and objectives, such as punishment, deterrence and rehabilitation, to determine an appropriate penalty.²⁸

Principles of the criminal justice system

As noted earlier, the criminal justice system is governed by laws and principles that ensure that when the State is prosecuting an individual, the process is fair to the accused person so that the public can have confidence in the administration of justice. In certain circumstances, these rules require a balancing exercise to be undertaken to ensure different public interest considerations are given the appropriate weight.

The following interrelated principles are of most direct relevance to the Commission’s inquiry, and are outlined in this section:

• the rights of an accused person
• prosecutorial duties
• independent courts and open justice.

The professional duties of police and lawyers are also integral to the proper administration of the criminal justice system. They are discussed in later sections of this chapter.

The rights of an accused person

An accused person is entitled to a fair trial. The right to a fair trial or hearing is reflected in both legislation and in common law principles. It is enshrined in Victoria’s Charter, which provides that an accused person has the ‘right to have the charge … decided by a competent, independent and impartial court after a fair and public hearing’.²⁹

An accused person has specific rights that should be adhered to if a trial is to be fair:

• the right to be presumed innocent until proven guilty—this places the onus (burden) on the prosecution to prove, beyond reasonable doubt, that the accused person committed the crime or crimes charged
• the right to have legal representation
• the right to know the case against them—this requires the prosecution to disclose all evidence relevant to the charges, including information that might undermine the prosecution case or assist the accused person
• the right to remain silent—this includes a right to refuse to answer questions during a police interview and a right not to be forced to incriminate themselves
• the right to be tried without unreasonable delay
• the right to examine witnesses to test the factual basis of their evidence and their credibility.³⁰

These rights are not absolute—they can be limited or qualified if justified for other reasons. Any limitations or qualifications, however, must be reasonable; that is, such limits need to be ‘demonstrably justified in a free and democratic society based on human dignity, equality and freedom’.³¹

The courts are ultimately responsible for ensuring that an accused person receives a fair hearing. What is required to ensure that a hearing is fair will ultimately depend on the circumstances of the case, and requirements may change over time in line with changing community expectations.³²

If an accused person is unable to secure a fair hearing, the court may decide to grant a permanent stay of the prosecution (an order stopping the case from continuing) because the court considers it an abuse of process.³³ In practical terms, a permanent stay means that the prosecution must be abandoned. While there is a significant public interest in prosecuting persons accused of serious crimes, and in the courts determining whether or not these persons are guilty, the hearing must be fair.³⁴ Otherwise, any ‘verdict of guilty, and the criminal conviction that follows it, is intrinsically flawed’.³⁵ The court’s power to grant a permanent stay, although reserved for extraordinary cases, reflects the importance of a fair hearing in the criminal justice system.³⁶

Prosecutorial duties

As agents of the State, all prosecutors have a duty to act as impartial ‘ministers of justice’ and must act in a way that assists the court to discover the truth.³⁷ This general duty of impartiality has several elements, including duties to act fairly, not to seek a conviction at all costs, and to call all relevant credible witnesses in the prosecution case.

Another duty central to this inquiry is the duty to disclose all relevant material to the defence.³⁸ The prosecution’s duty of disclosure is not limited to material that the prosecution will rely on and that supports the prosecution case, but extends to any other relevant material that may assist the defence case or undermine the prosecution case.³⁹ The prosecution must disclose anything relevant to the guilt or innocence of the accused person.⁴⁰

The duty of disclosure applies to ‘the prosecution’ in a broad sense. This includes police prosecutors, the DPP, the CDPP and other lawyers who act on behalf of prosecuting authorities to prosecute a crime. For disclosure purposes, police are considered part of the prosecution. This means that police have a duty to disclose relevant material in their possession to an accused person regardless of whether the particular prosecutor is also aware of the existence of that material.⁴¹

The duty of disclosure supports a fair hearing in many ways, including by ensuring an equality of arms between all parties.⁴² A failure to make proper disclosure can result in a miscarriage of justice and may lead to a conviction being set aside (overturned) on appeal, on the basis that the accused person did not receive a fair trial.⁴³

There are some exceptions to the duty to disclose all relevant information. For the purposes of the matters relevant to this inquiry the main exception is public interest immunity (PII).

PII is a legal principle recognised by the common law and is also a rule of evidence.⁴⁴ It allows a person to refuse to disclose relevant material that they would otherwise need to disclose, because that disclosure would go against the public interest. Ultimately, this will depend on an assessment of whether the imperative to disclose the information to the accused person is outweighed by other policy and public interest considerations.⁴⁵

In a criminal proceeding, when PII applies, it acts as an exception to a prosecutor’s duty to disclose all relevant material. If material is held to be covered by PII, it cannot become evidence in the case. It therefore qualifies an accused person’s right to know the case against them.⁴⁶ Importantly, neither the prosecution nor the police is responsible for ultimately deciding whether PII applies. This is a matter for an independent court.⁴⁷ In some circumstances, the court may hear applications relating to PII without the defence being notified.⁴⁸ In determining whether PII applies, the court must assess whether allowing the material into evidence in the case outweighs the public interest in preserving the secrecy or confidentiality of the material.⁴⁹

When a PII claim is made regarding the use or identity of a human source, considerations that support protecting the identity of a human source (preserving sources of information and thereby supporting the prevention and detection of crime, and protecting the personal safety of human sources and their families)⁵⁰ must be balanced against competing considerations that support disclosure (promoting open justice and ensuring a fair hearing, including by giving an accused person an opportunity to fully challenge the prosecution’s case against them).⁵¹ To ensure the accused person has access to evidence critical to their defence or, as in some cases involving Ms Gobbo, when basic premises of the criminal justice system are debased so that the accused person cannot have a fair trial, the latter considerations—those favouring open justice—will generally prevail.⁵²

Independent courts and open justice

The separation of powers principle requires that courts must be, and be perceived to be, independent and impartial in making decisions about the law. Independence and impartiality are fundamental to the administration of justice. These principles promote an accused person’s right to a fair hearing, and foster public trust and confidence in the integrity of the judicial arm of government: the courts.⁵³

Courts play an active role in monitoring whether all aspects of the trial process are fair to the accused person —that the accused person’s right to be presumed innocent is observed, that they understand the case against them and that they have the opportunity to test the prosecution evidence. Courts are vigilant in ensuring that their processes are not used to oppress parties. They have broad powers to expose and remedy any abuse of process that may undermine the fairness of the trial.⁵⁴

Openness in the court system is an equally important principle and ensures that justice is not only done but also seen to be done. It requires that, generally, court proceedings are held in public and that information disclosed in court can be communicated freely, including by the media.⁵⁵ Adherence to this principle is critical to maintaining public confidence in the courts.⁵⁶ Open justice is necessary because ‘secrecy is conducive to the abuse of power and, thus, to injustice’.⁵⁷

Victorian law recognises the importance of open justice and the free communication of information, including in demonstrating to the public that laws are applied fairly and effectively.⁵⁸ In Victoria, hearings in open court are favoured, as is allowing the disclosure of information before the court.⁵⁹

The open justice principle may be qualified in some cases, such as on the basis of a PII claim. The court may need to decide cases behind closed doors or limit the disclosure of information in a proceeding to prevent prejudice to the administration of justice.⁶⁰ There are several recognised categories of cases to which this qualification may apply, including cases involving human sources.⁶¹

The use of human sources to prevent, detect and solve crime

As discussed in Chapter 1, a human source is commonly understood to be a person who covertly supplies information about crime or people involved in criminal activity to police or other law enforcement agencies.

Police might recruit a human source to observe or infiltrate a criminal enterprise.⁶² Human sources may actively seek out further intelligence or information if police direct or ask them to. They may also develop or maintain a relationship with other people so that they can provide information about them to police.⁶³

Human sources are a critical source of information and intelligence for law enforcement, especially in efforts to combat serious and organised crime and corruption, sometimes to prevent crimes before they occur.⁶⁴ Police have increasingly valued human sources as some traditional and new technologies have become more susceptible to counter-technologies, such as encryption.⁶⁵ As they are sometimes involved in criminal conduct themselves, human sources can provide police with access to criminal networks and activities that police often cannot access through other means.⁶⁶

Risks associated with the use of human sources

While the use of human sources has been described as ‘one of the most effective weapons in the hands of the detective’,⁶⁷ it can also be fraught with risks—to the human source, to the police officers involved, and to the administration of justice.⁶⁸

Significant harm may come to the human source if their role is revealed to the people on whom they are informing.⁶⁹ A person who provides information to police as a human source, therefore, typically does so expecting that their identity will be protected.⁷⁰ For these reasons, police can be understandably reluctant to disclose information about human sources in subsequent criminal proceedings.

Other risks or concerns include:

• improper associations between police and human sources—the covert relationship between police and human sources can ‘[lend] itself to corruption and unethical behaviour’⁷¹
• police ‘licensing’ the human source to commit crime in the course of gathering intelligence⁷²
• exploitation of police by the human source to gain an advantage or to engage in further illicit activity—sources are motivated to assist police for many reasons, including gaining an advantage over criminal adversaries, or the prospect of a financial reward or discounted sentence⁷³
• the human source providing tainted, unreliable or fabricated information
• manipulation of the human source, arising from a power imbalance between police and the source⁷⁴
• infringing the human rights of the people who are the targets of the intelligence-gathering—for example, their rights to privacy, reputation and a fair hearing under the Charter.⁷⁵

There are also specific issues associated with human sources who are subject to legal obligations of confidentiality or privilege—that is, who have duties not to disclose the information they have even if it may be relevant to a police investigation. Human sources with legal obligations of confidentiality or privilege are central to the Commission’s inquiry and are discussed in Chapter 4.

An accused person may be denied access to the full details of the evidence that has been gathered because of the use of a human source, despite the prosecution’s duty of disclosure. As noted above, the use and identities of human sources are often subject to PII claims. This is partly because of the substantial risk of harm to them and their families if their identities as human sources become known, and partly because of the community safety benefits to be gained from the continued use of human sources generally, as they will be unlikely to offer their services if their identities are not protected.

A successful PII claim may affect the right of an accused person to know the full details of the case being made against them, to test the veracity or quality of the evidence being presented, or to challenge the lawfulness of the investigation techniques used by the police.⁷⁶

Concerns may also arise about systemic issues or problems in the use of human sources by police. Because their use is ordinarily hidden from the public, it is difficult to determine whether police recruitment and management of them is appropriately mitigating the risks involved and is complying with relevant laws, policies and guidelines. Powers that are exercised in secret tend to be more susceptible to misuse, and there is a strong public interest in independently scrutinising their use.

Management of risks

Police must carefully manage and control the risks of using human sources through robust policies, procedures and practices, with accountability, oversight and appropriate transparency. Equally, the measures put in place to manage these risks need to protect the identity of human sources and their families. The measures need to be workable for police officers to implement effectively and must not discourage or deter human sources from assisting police in ongoing and future investigations.

An effective system for the management of human sources should have clear, consistent and practical rules and processes, and be secure and functional. Such a system should prevent corruption and provide adequate protection to human sources and their police handlers (the officers responsible for managing sources). In doing so, it should also help to maintain the community’s trust and confidence in its police service.

In many law enforcement agencies across Australia and internationally, the management of human sources has evolved in recent decades from an unstructured model of individual police officer-human source relationships to ‘a more comprehensive, professional and ethical system of recruiting and managing sources’.⁷⁷ Contemporary human source management is governed by detailed policies and guidelines that introduce new levels of scrutiny and accountability, and formally recognise the source as an asset of value to the law enforcement agency as a whole, instead of as an informal resource for individual police officers.⁷⁸

Policies and codes of practice governing the management of human sources typically cover the processes involved in all phases of the relationship with the source: requests for human source assistance, recruitment, registration, interaction, payment and deactivation.⁷⁹ Current Victoria Police processes for the use of human sources are outlined in Chapter 12.

Although human source management policies and practices may differ across and within agencies, they generally provide for:

• assessing and evaluating the value of the information that the source can provide and the risks involved in engaging them, often by using a standard risk assessment tool
• approval, registration, formal tasking and directing of sources (the source may also be asked to sign a document acknowledging their responsibilities and the parameters of their relationship with police)
• day-to-day management of sources, including documentation of all interactions with them, and of decisions made about their use
• training of officers involved in managing sources
• appointment of police handlers and controllers to manage sources
• processes and arrangements to protect the identity of sources
• instructions about use, handling and destruction of information, and disclosure requirements in criminal proceedings
• guidance material about ethical and legal considerations
• requirements for regular supervision, internal compliance audits and reviews by senior officers or ethics committees.⁸⁰

Risks can also be addressed through external governance of police use and management of human sources; for example, through legislative frameworks and codes of practice. Documenting processes and standards in legislation can support greater transparency and accountability of police actions and decisions, provide clarity and protection for police officers, and strengthen safeguards against unethical or high-risk conduct. Laws that apply generally to police also play an important role in imposing duties on individual officers in exercising their functions and powers. These laws not only protect those being investigated, but also provide guidance and protection to the officers. They are discussed in the next section.

Some aspects of the laws of evidence can also be considered an indirect form of governance of police use of covert powers and methods, such as the use of human sources, because these laws enable courts to exclude evidence that has been improperly obtained if including it would compromise the fairness of the trial process.⁸¹ These laws, however, can only be used if the accused person or the court becomes aware of the investigation techniques that generated the evidence. If there are no other forms of regulation—such as legislation or codes of practice—governing the use of covert powers and methods, it is unlikely that the accused person or the court will have this knowledge.

These issues are discussed in further detail in Chapters 12–14.

Duties of police officers

The public naturally expects police officers to uphold the law and to exercise their considerable power and authority according to law. Police are therefore subject to duties, obligations and professional standards that protect the freedoms of citizens, ensure that those charged with offences receive a fair trial, and promote overall community confidence in the police service.

As a public authority, Victoria Police must adhere to the provisions of the Charter when performing its functions and must act in ways that respect people’s human rights.

By law, each police officer must promise to fulfil their duties ‘faithfully and according to law’ and ‘without favour or affection, malice or ill-will’ before they can commence service.⁸²

Victoria Police recognises the importance of individual police officers acting honestly, fairly and with integrity, and this is reflected in the professional and ethical standards that apply to all Victoria Police employees (both sworn police officers and public servants employed by Victoria Police).⁸³

The Victoria Police Manual reminds officers that:

In taking on the authority and responsibility that comes with being a Victoria Police employee, you are held to a higher standard of conduct in both your public and private lives and are more open to public scrutiny than many other members of the public.⁸⁴

The Manual explains that acting with integrity involves being honest, respecting the right of fair process for all, demonstrating moral strength and courage, and behaving with honour and impartiality.⁸⁵

Police officers are authorised to exercise powers that can interfere with the day-to-day rights and freedoms of citizens. They can search and seize property; administer drug and alcohol tests and take forensic samples; question people; issue intervention orders excluding people from entering their own homes; and arrest suspects and take them into custody. Some police powers are covert, and therefore intrude on other specific rights, such as privacy. These include the use of audio, visual and data surveillance devices, covert searches and human sources, and the deployment of undercover police officers. It is critical that, in using these powers, police follow the limits set by Parliament and the courts.

Police are also responsible for gathering evidence that can be used in court, and for starting proceedings against an accused person. In this context, and as agents of the State, they must follow laws and processes to ensure that the accused person receives a fair trial. Their conduct is relevant to whether the investigation and prosecution have been conducted lawfully. So, if police obtain evidence unlawfully—for example, by seizing property without a warrant or using a listening device without authorisation—the court may refuse to allow that evidence to be used at trial, potentially weakening the prosecution’s case. When unlawfully obtained evidence is admitted during trial and there has been no scrutiny of how it was gathered, an appeal court may decide that its use undermined the fairness of the trial as a whole. This, in turn, may justify overturning a conviction.

As discussed above, police are also bound by the duty of disclosure that applies to prosecutors. If they fail to disclose relevant evidence, this may similarly lead to a ruling that the accused person has not been given a fair trial.

To fulfil its role in preventing and investigating crimes, the police service relies on members of the community to report crimes or other suspicious activity. The community’s willingness to work in partnership with the police, and the effectiveness of police efforts in preventing and investigating crime, depend on the public having trust and confidence in the police.⁸⁶ To earn this trust and confidence, police officers must uphold the law. Unlawful, unethical or questionable conduct of individual police officers can erode public trust and confidence in the police service as a whole.⁸⁷

Lawyers’ duties and obligations

Lawyers have detailed duties, professional obligations and ethical standards that have two concurrent purposes: to ensure they uphold the proper administration of justice and to act in the best interests of their clients. Lawyers’ compliance with their duties supports public confidence in the legal profession and the justice system.⁸⁸

Lawyers’ obligations are drawn from a range of sources, such as the Legal Profession Uniform Law, professional conduct rules and the common law. Some of the key duties and obligations held by lawyers that are relevant to the Commission’s inquiry are described below. They are discussed in further detail in Chapters 4, 5 and 15.

Duty to the court

Lawyers are integral participants in the administration of justice, and upon admission to the legal profession become ‘officers of the court’.⁸⁹ They have an overriding duty to the court and to act in the public interest, which means ensuring the integrity of the law and legal process. Out of this arises their duty to assist the court in the administration of justice.⁹⁰ This duty is reflected in legal profession conduct rules specifying that lawyers must not engage in conduct that is likely to be prejudicial to, or diminish public confidence in, the administration of justice, or to bring the legal profession into disrepute.⁹¹

A lawyer’s duty to the court is paramount.⁹² They cannot act only in their client’s interests to the detriment of ensuring that justice is delivered in accordance with the law.⁹³

The duty to the court requires lawyers to act honestly in all their dealings with the court and other lawyers.⁹⁴ They must never mislead the court, and must be frank in their responses and disclosures to it.⁹⁵ For example, if a client confesses guilt to their lawyer and then wants to give evidence in court that they are not guilty, the lawyer’s paramount duty to the court will usually require that they cease to act for the client—to do otherwise would amount to misleading the court.⁹⁶

Relevant to this inquiry, a breach of the duty to the court is likely to arise in the circumstances described below, where there has been a breach of another concurrent duty—such as a lawyer’s failure to disclose a conflict of interest.

Duties to the client

Lawyers have considerable authority and power when representing a client—they have knowledge and expertise about the law and legal system, and are privy to their client’s confidential information. Their advice and actions can have a direct influence on the outcomes the client is able to achieve.

So, while lawyers owe a paramount duty to the court, they also owe a duty to their client to act in the client’s best interests.⁹⁷ This duty promotes trust and helps remedy the imbalance of power between lawyers and their clients. It is subject to the overriding duty to the court, and exists to protect clients from careless or deliberate conduct by their lawyer that might adversely affect their interests. In the criminal justice system, lawyers’ compliance with these obligations is integral to providing the accused person with a fair trial, and therefore integral to the system itself.

To enable their lawyer to act in a client’s best interests, the client must know they can speak as freely as possible when consulting them. Accused persons, and clients of lawyers more generally, should feel comfortable in frankly providing all necessary information without fear that it will be given to anyone else, or later used against them. If clients withhold important information from their lawyers for fear the lawyer might tell the police, the prosecution or the judge without their permission, the client might well receive incomplete or inaccurate advice, and unfavourable outcomes in negotiations or court decisions. This may also lead to courts making flawed or unsafe decisions because they have been provided with incomplete or misleading information.

Together with lawyers’ duty to the court, important rules and legal principles protect the confidentiality and ‘privilege’ of information that clients share with their lawyers, and of the advice lawyers give their clients. While these duties are fundamental to the administration of the justice system, they are not absolute—that is, there are some circumstances in which lawyers are permitted to disclose their communications with their clients.

Legal professional privilege

A client who engages a lawyer has a right to legal professional privilege. The statutory form of legal professional privilege in Victoria is called ‘client legal privilege’.⁹⁸

Legal professional privilege prevents a lawyer from disclosing certain communications or documents shared between the lawyer and client, even to the court. Communications or documents are only privileged if they came into existence for the dominant purpose of litigation (actual or anticipated) or providing legal advice.⁹⁹ The client can waive (give up) privilege, in which case their lawyer is permitted, or obliged, to disclose the communications or documents to others.

A breach of legal professional privilege could include disclosure to third parties of communications between a client and their lawyer where those communications predominantly related to the provision of legal advice, or actual or anticipated litigation.

A client’s right to claim privilege over communications with their lawyer is not absolute. Privilege can be lost in circumstances where the client, their lawyer or a third party engages in communications or prepares documents to commit a fraud, offence or other illegal act, or engages in an abuse of power; or if the client waives the privilege.¹⁰⁰

Confidentiality

Lawyers also have a broader duty of confidentiality to their clients, which requires that they do not disclose confidential information acquired from a client-lawyer relationship.¹⁰¹

There are limited exceptions to the duty of confidentiality. These might include when the client consents to the information being disclosed; when the information is obtained by the lawyer from another person in circumstances that do not attract confidentiality; or when disclosure is necessary to prevent a probable serious crime or imminent serious physical harm to the client or another person.¹⁰²

The duties of legal professional privilege and confidentiality are similar, but confidentiality applies in a broader range of circumstances. For example, discussions between a lawyer and client that occur socially but in circumstances where a client still believes the discussion to be one of confidence, while not attracting legal professional privilege, may still be confidential.¹⁰³

Duty to avoid conflicts of interest

Lawyers are required to promote and protect the interests of their client, and avoid conflicts of interest.¹⁰⁴ The client needs to be able to rely on their lawyer and trust that they are acting in good faith and in accordance with the client’s best interests, subject to the lawyer’s overriding duty to the court.

Conflicts of interest can arise when a lawyer’s duty to their client conflicts with the duties they owe to another current or former client, or with the lawyer’s own personal interests.¹⁰⁵ For example, a lawyer may be prevented from representing two clients in the same matter when the clients’ interests diverge to the extent that the lawyer is unable to act in the best interests of them both.

Implications for the Commission’s inquiry

The conduct of Ms Gobbo and Victoria Police that is the subject of the Commission’s inquiry was beset by breaches of fundamental legal principles and professional and ethical standards.

The criminal justice system can only produce just outcomes when it operates effectively as a whole—when those who work within it respect each other’s distinct role, comply with their duties and act with integrity. It cannot produce just outcomes when key actors disregard long-established principles designed to protect the democratic right to a fair trial, and instead are driven by results-focused behaviour without regard to the broader public interest in the proper administration of justice.

The Commission’s role has been to inquire into ways in which the conduct of Ms Gobbo and Victoria Police may have tainted and undermined the convictions of numerous people. Just as importantly, its role has been to restore public confidence in the criminal justice system by exposing any improper activities of those whom the community has entrusted to uphold the law, by assessing the adequacy of current policies and practices, and by recommending measures to protect against future misuse of power and breach of duty.

Victoria Police has now accepted that permitting Ms Gobbo to give them information about her own clients was ‘reprehensible’, and ‘an indefensible interference in the lawyer–client relationship that is essential to the proper functioning of the criminal justice system and to the rule of law’.¹⁰⁶ In a submission to the Commission,

Victoria Police stated that it ‘apologises to the courts whose processes were impacted by what occurred, and to the community for breaching its trust’.¹⁰⁷

Although the events the subject of the Commission’s inquiry took place in the past, they continue to have an impact many years later, as those whose cases have been affected file appeals and perhaps consider claims for compensation. Concerningly, public confidence in Victoria Police has diminished. A survey of Victorians conducted in September 2020 found that public rating of Victoria Police for honesty and ethical standards had dropped significantly over the period coinciding with the Commission’s inquiry. One of the main factors cited by respondents to the survey for their low ratings of police was Victoria Police’s conduct in using Ms Gobbo as a human source, which they believed was ‘unethical’ and ‘had undermined the legal system’.¹⁰⁸

Victoria Police itself has acknowledged that:

… the way in which Ms Gobbo was managed as a human source in a way that resulted in a profound interference with the relationship between lawyer and client was a major failing. The consequences of that failing are resonating through the criminal justice system and will do so for many years. It has come at a very high cost to the organisation, to public confidence and to the criminal justice system.¹⁰⁹

These consequences are a reminder that the carefully calibrated checks and balances that underpin the criminal justice system need to be valued and protected, even in the most challenging of times.

In publicly exposing Ms Gobbo’s and Victoria Police’s conduct, the Commission’s inquiry should reassure the community that disregard for the law and proper administration of justice will not go unchecked. It should also empower those whose convictions or findings of guilt may be affected to make informed decisions about any future action they may take.

The Commission’s recommendations aim to ensure the events that led to this inquiry cannot occur again, and to help guard against other potential or unforeseen cases of misuse of power or unethical conduct within the criminal justice system. They have been informed by reforms implemented in other jurisdictions, often in response to specific and identified problems and miscarriages of justice.

The Commission has examined the current laws, policy and practices that relate to the use of human sources in Victoria, and the obligations of police and lawyers in that context. Many changes have been implemented by Victoria Police and legal profession bodies since the events the subject of this inquiry took place.

The Commission’s policy recommendations are directed at remedying a number of gaps and shortcomings that persist in Victoria’s policy and governance arrangements in the following areas:

• the use and management of human sources, in particular those with legal obligations of confidentiality or privilege
• independent oversight of the use of human sources
• the use and disclosure of human source information in criminal proceedings
• regulation of the legal profession.

Together, the Commission’s recommendations aim to improve the transparency and accountability of the systems and processes that underpin the criminal justice system, and the capacity of agencies and individuals to fulfil their duties and obligations.

Fostering, embedding and embracing a culture of transparency, accountability and oversight is the most reliable mechanism the Victorian community has to ensure that, in the future, those tasked with administering the criminal justice system maintain the highest possible standards of conduct, and are not tempted to dispense with their duties and obligations, even when faced with challenging and high-profile investigations. A system with appropriate oversight, founded on transparency and accountability, is also critical for preserving the longevity of the policy and practice changes that have already been made by Victoria Police and others, as well as those recommended by the Commission.

The Commission has recommended a suite of reforms that, in combination, aim to create a robust framework that will improve the operation of various aspects of the criminal justice system. It is important that these reforms are considered and implemented together. They should also be monitored into the future to ensure that they have been successfully implemented and their intended purpose achieved.

The successful implementation of the Commission’s recommendations and the subsequent monitoring of those recommendations are key to assuring the Victorian community that the regrettable events leading to this inquiry will not be repeated. It is also key to assuring the community that their police service will work effectively and lawfully within the criminal justice system to protect them from criminal activity without unfair and unjustified incursions on the rights of individual citizens.

Endnotes