Chapter 3

Introduction

The Commission’s inquiry commenced shortly after the public revelation that Victoria Police had used a former barrister, Ms Nicola Gobbo, as a human source. Prior to and during the inquiry, some of the people potentially affected, including former clients of Ms Gobbo, appealed their convictions to the Court of Appeal of the Supreme Court of Victoria. Accordingly, the Commission’s work attracted significant public interest.

From the outset, the Commission sought to conduct its inquiry as openly and as transparently as possible. In addition to addressing the matters set out in its terms of reference, the Commission had a critical role in illuminating the events that led to the inquiry, and in restoring public confidence and trust in the criminal justice system.

This chapter describes how the Commission approached its inquiry, in accordance with its terms of reference, its obligations under the Letters Patent, and its powers and obligations under the Inquiries Act 2014 (Vic) (Inquiries Act), including the requirements of procedural fairness.

The Commission’s work required a team with multidisciplinary skills, expertise and experience. The Commission’s policy and research, investigations, enquiries; operations and media and communications teams were supported by counsel appointed to assist the Commission (known as ‘Counsel Assisting’) and the Commission’s solicitors (known as ‘Solicitors Assisting’).

As discussed below, the Commission’s work included:

• seeking and obtaining relevant information; in particular, by issuing notices to produce and requests for information
• receiving submissions from members of the public, including potentially affected persons
• conducting hearings to examine evidence
• undertaking research and consulting with Victorian, interstate and international stakeholders and experts
• reviewing submissions from Counsel Assisting, and submissions from affected people and organisations received in response to Counsel Assisting submissions.

The matters the Commission considered were, at times, highly sensitive and could lead to safety risks for people giving information or evidence at its hearings and their families, or for those affected by the information examined. The Commission adapted its processes to mitigate those risks.

Over the course of the inquiry—almost two years—the Commission:

• received over 155,000 documents and materials from Victoria Police, individuals and other organisations
• received 157 submissions from members of the public or organisations during its public submissions process
• held 129 days of public or private hearings and examined 82 witnesses
• consulted with 97 individuals and organisations with experience and expertise relevant to terms of reference 3–6
• received 45 responsive submissions relevant to terms of reference 1 and 2 and four responsive submissions relevant to terms of reference 3–6.

The Commission faced a number of constraints and challenges that affected its reporting timelines and the way it conducted and reported on the inquiry, including challenges associated with the production of documents, the resolution of public interest immunity (PII) claims, and limitations on the Commission’s powers under the Inquiries Act. These challenges are discussed in Chapter 16.

This chapter outlines:

• the Commission’s powers and obligations
• how the Commission approached its inquiry
• the adverse findings process
• the Commission’s reporting.

These matters are discussed in turn below.

The Commission’s powers and obligations

The Commission was established under the Inquiries Act. The Act provides for the conduct and establishment of a royal commission in Victoria and sets out the powers it may exercise.

The Inquiries Act enabled the Commission to conduct its inquiry in the manner it considered appropriate, subject to its powers under the Act, its Letters Patent and the requirements of procedural fairness.¹

Powers under the Inquiries Act

Under the Inquiries Act, the Commission had the power to:

• issue a notice to compel a person to produce documents to the Commission (known as a ‘notice to produce’)
• issue a notice to compel a person to attend and give evidence at the Commission’s hearings (known as a ‘notice to attend’)
• apply to the Magistrates’ Court of Victoria for a search warrant to, for example, inspect and copy a document relevant to the inquiry
• conduct hearings in public or in private.²

The Commission did not have any judicial powers. While it was required by its terms of reference to identify the number of, and the extent to which, cases may have been affected by Victoria Police’s use of Ms Gobbo as a human source, it was not the Commission’s role to overturn a conviction, order a re-trial, change a sentence or release a person from custody. These are matters for the courts.

For example, the avenues of recourse that may be available to a person convicted of a serious offence include:

• an appeal against a conviction—an appeal made to an appellate court, often on the basis there has been a substantial miscarriage of justice, usually seeking to overturn a conviction and either direct a verdict of acquittal or order a new trial³
• a petition for mercy—a formal petition to the Victorian Attorney-General to refer a case to the Court of Appeal or to refer a specific point of law to the Supreme Court of Victoria for an advisory opinion.⁴

As noted above, the Inquiries Act placed some constraints on the Commission’s powers, which affected the way it conducted the inquiry. These included a person’s ability under the Act to refuse to provide information to the Commission if that information is subject to PII, and the Commission’s inability under the Act to compel a person to prepare a written statement.⁵ Challenges also arose because various Victorian independent bodies and office holders are exempt from the coercive powers of a royal commission.⁶ Resolving these issues will be important for future inquiries, particularly inquiries that rely on the investigative powers provided by the Inquiries Act.

These challenges and the Commission’s conclusions about how they might be resolved are discussed in Chapter 16.

Obligations under the Letters Patent

The Commission’s Letters Patent required the Commission to:

• take care not to prejudice any ongoing investigations or court proceedings, or exercise any coercive or investigative powers in a manner that would be in contempt of court
• avoid unnecessarily duplicating the investigations or recommendations of previous related inquiries
• work cooperatively with any other inquiries or investigations into Victoria Police’s handling of Ms Gobbo as a human source to avoid any unnecessary duplication
• have regard to related court proceedings and future court proceedings commenced by affected persons, and to the safety of Ms Gobbo and other persons affected by the matters raised in the Commission’s inquiry
• promptly alert the Victorian Director of Public Prosecutions (DPP) and Commonwealth Director of Public Prosecutions (CDPP) to any information or documents relevant to their functions, including their duty of disclosure.

A copy of the Commission’s Letters Patent is at Appendix A and a copy of the amendments to the Letters Patent is at Appendix B.

Procedural fairness

The Commission had the power under the Inquiries Act to conduct its inquiry in any manner it saw fit subject to the requirements of procedural fairness, and a common law obligation to exercise its powers with fairness to those persons whose interests might be affected.⁷

At common law, the obligation to afford procedural fairness extends to any person whose rights, interests or legitimate expectations may be affected in a direct and immediate way.⁸ The scope of the obligation to afford procedural fairness is determined by the particular facts and circumstances of an inquiry, including its terms of reference.⁹

The Commission’s obligation to afford procedural fairness therefore extended to those people whose interests were sufficiently affected by the inquiry. The Commission afforded procedural fairness to those people by providing them with the opportunity to:

• apply to be heard at the Commission’s public hearings and/or cross-examine witnesses on certain matters
• provide written submissions to the Commission
• review and consider the critical issues and evidence relevant to the inquiry and potential findings that affected their interests
• put forward information to the Commission in support of their interests, including the opportunity to rebut or qualify information before the inquiry.

The Inquiries Act also imposes a statutory obligation on a royal commission to afford procedural fairness when a commission proposes to make an adverse finding against a person.¹⁰

Between June and September 2020, the Commission conducted a formal adverse findings and procedural fairness process to ensure that people whose interests were sufficiently affected by the Commission’s potential findings were:

• aware of the matters on which the proposed finding was based, including the critical facts, evidence and other issues taken into account
• given the opportunity to make submissions to the Commission in support of their interests.

The Commission’s adverse findings and procedural fairness process is discussed further below.

Charter of Human Rights and Responsibilities

When conducting the inquiry, the Commission also considered and applied the principles under the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).

The Commission was acutely aware of the rights of people who may have been affected by the inquiry, particularly those whose cases may have been affected by the use of Ms Gobbo as a human source, and Victoria Police officers who were involved in using Ms Gobbo as a human source.

The Commission considered those persons’ Charter rights—including the right to life, right to privacy and right to a fair hearing—during its public submissions process, its hearings, and during the formulation of this final report and its findings and recommendations.¹¹ This consideration of a person’s rights influenced decisions such as whether the Commission would:

• conduct its hearings in public or in private
• make orders to protect the identity of a witness or prevent the publication of sensitive information
• publish information to its website, including submissions from members of the public who asked that their information be treated anonymously or confidentially.

Approach to the inquiry

The Commission’s inquiry was structured around five key areas of work to enable the production and examination of evidence. Those five areas involved:

• seeking and obtaining information from individuals and organisations by issuing notices to produce and requests for information
• engaging with members of the public to give them an opportunity to contribute to the inquiry and follow the Commission’s work
• conducting public hearings to examine evidence and promote transparency of the Commission’s work
• undertaking a comprehensive research program, including consultation with agencies and individuals with expertise in matters relevant to the terms of reference
• receiving advice from Counsel Assisting on matters relating to terms of reference 1 and 2.

These are discussed in turn below.

Obtaining information relevant to the inquiry

The Commission’s work involved piecing together events and interactions that occurred between 1993 and 2020. This required access to a large volume of documents and material relevant to that period. The Commission relied heavily on its power under the Inquiries Act to compel the production of documents. Many agencies and individuals also provided material to the Commission voluntarily.

Notices to produce and requests for information

Under the Inquiries Act, the Commission had the power to issue a notice to an individual or an organisation to compel them to produce a document to the Commission within a specified period of time.¹² That power did not extend to certain bodies and office holders, including the Independent Broad-based Anti-corruption Commission (IBAC), Victorian Ombudsman, DPP, CDPP and Victorian courts.¹³ Those bodies could only provide information voluntarily.

When the Commission was prevented from issuing a notice to produce under the Inquiries Act, or when it required general information rather than the production of a specific document, it could issue formal requests for information.

From 4 January 2019 to 5 October 2020, the Commission issued notices to produce and formal requests for information to various individuals and agencies, including Victoria Police. The number of notices and requests issued and documents received by the Commission is displayed in Figure 3.1.

Figure 3.1: Number of notices to produce and formal requests for information issued by the Commission

The focus and operation of the hearings

The primary focus of the hearings held between February 2019 and February 2020 was to examine the issues relating to cases potentially affected by the use of Ms Gobbo as a human source and the related conduct of Victoria Police officers (terms of reference 1 and 2). These hearings were held at the Fair Work Commission, Melbourne.¹⁷ The Commission is grateful to the Fair Work Commission for making available its hearing room and other facilities.

During those hearings, the Commission examined evidence relating to the interactions between current and former Victoria Police officers and Ms Gobbo between 1993 and 2013. It particularly focused on her third registration and use as a human source between 16 September 2005 and 13 January 2009.¹⁸

The Commission also examined issues relating to Victoria Police’s use or potential use of other human sources subject to legal obligations of confidentiality or privilege (relevant to term of reference 5a). These hearings were held in private to protect the identities of those people.

At times, the Commission’s hearings touched on matters considered by previous inquiries, such as the Comrie Review and Kellam Report.¹⁹ This was necessary in circumstances where, for example, the Commission had received additional information that was not available to these inquiries or where there were challenges to the facts upon which those inquiries were based.²⁰ In considering such matters, the Commission sought to adhere to its obligation under the Letters Patent to not duplicate the work of these inquiries.

In May 2020, the Commission held hearings to examine policy issues relating to terms of reference 3 and 4. These hearings were held virtually due to COVID-19-related restrictions.

The policy hearings focused on a range of issues to inform the Commission’s inquiry into:

• Victoria Police’s current policies and practices relating to the use of human sources with legal obligations of confidentiality or privilege
• how information provided by these human sources is used in the criminal justice system and how Victoria Police fulfils its disclosure obligations.

The hearings did not examine a specific set of events or cases. Instead, they explored how to strengthen the current framework for dealing with these types of human sources and the information they provide to police.

Where necessary, the Commission also held directions hearings to manage a range of procedural matters, such as delays in Victoria Police’s production of documents and witness statements. The Commissioner also issued three directions outlining procedural guidelines and processes to support the public hearings. Those directions related to:

• the general operation of the public hearings, including how witnesses would be called, the examination and cross-examination of witnesses, the tendering of documents and applications for leave to appear
• witnesses’ legal representation
• the operation of the Commission’s virtual hearings in May 2020, following the Victorian Chief Health Officer’s directions in response to the COVID-19 pandemic.²¹

Witnesses

Counsel Assisting determined which witnesses were called at the Commission’s hearings and the issues to be explored in evidence, subject to the Commission’s time limitations and reporting requirements. Witnesses were issued notices to attend the Commission’s hearings on specific days.²²

Written statements

Witnesses who gave evidence at the hearings, and other individuals relevant to the inquiry, were asked by the Commission to prepare a written statement before giving their evidence.

As the Inquiries Act only empowers the Commission to compel the production of existing documents under a notice to produce, written witness statements were produced on a voluntary basis.²³ Once a statement was prepared, the Commission then issued a notice to produce to obtain a copy of it.

Having a written statement available to the Commission prior to a witness appearing to give evidence increased the efficiency of the inquiry, as it assisted in the preparation of questions to put to each witness. While many written statements were provided well in advance of a hearing, this did not always occur.

The Commission received 280 written witness statements.

Written statements and any annexures to statements were tendered as exhibits at the Commission’s hearings and published to the Commission’s website following PII review. This is discussed further below.

Challenges relating to the production of written statements to the Commission, including the timeliness of production, are discussed in Chapter 16.

The Commission thanks all those who voluntarily produced written statements to the Commission, particularly those who did so in a timely way, saving considerable time and public expense.

Witnesses called to give evidence

The Commission heard evidence from 82 witnesses during its hearings.

Counsel Assisting led the examination of all witnesses and were well supported by Solicitors Assisting and the Commission’s team of investigators, who helped to identify witnesses to call and lines of inquiry to pursue.

Whenever possible, a list of upcoming witnesses was regularly published to the Commission’s website to give other people who were potentially affected by a witness’ evidence an opportunity to participate in hearings by applying for leave to appear. The Commission’s ability to publish these lists was sometimes disrupted by the late provision of written statements. These applications for leave to appear are discussed further below.

During its hearings relating to terms of reference 1 and 2, the Commission heard from current and former Victoria Police officers, including:

• officers involved in recruiting and registering Ms Gobbo as a human source
• handlers and controllers in Victoria Police’s Source Development Unit (SDU) who were responsible for managing Ms Gobbo during her time as a human source between 2005 and 2009²⁴
• officers involved in taskforces that had direct engagement with Ms Gobbo, such as the Briars Taskforce and the Petra Taskforce
• senior Victoria Police management and leadership, including then Chief Commissioner Graham Ashton, AM, APM, former Chief Commissioners Kenneth (Ken) Lay, AO, APM, Simon Overland, APM and Christine Nixon, APM, and former Acting Chief Commissioner Timothy (Tim) Cartwright, APM.

The Commission also heard evidence from some of Ms Gobbo’s former clients and other persons who may have been affected by her use as a human source.

In February 2020, the Commission heard evidence from Ms Gobbo, who attended the hearings on video link from a remote location. Ms Gobbo was only visible to the Commissioner.

During the policy hearings relating to terms of reference 3 and 4, the Commission heard from Deputy Commissioner Wendy Steendam, APM, Specialist Operations, who had responsibility for Victoria Police’s response to the Commission. The Commission also called Professor Sir Jonathan (Jon) Murphy, QPM, DL, Liverpool John Moores University, who generously shared his insights and experience of the United Kingdom’s framework for managing human sources.

Witnesses’ evidence assisted the Commission to better understand how the relationship between Ms Gobbo and Victoria Police evolved. The Commission also heard evidence relating to Victoria Police’s decision making regarding their disclosures about, and recruitment, management and use of, Ms Gobbo as a human source.

The evidence of former and current officers also supported the Commission’s exploration of issues relating to Victoria Police’s human source management policies, practices and training. This included officers’ understanding of their disclosure obligations and of the use of confidential or privileged information obtained from human sources.

A list of witnesses who appeared at the Commission’s public hearings is at Appendix E.

The safety of witnesses

In compelling witnesses to give evidence, the Commission was conscious of its responsibility to support the welfare of these people. The Letters Patent also specifically required the Commission to consider the safety of Ms Gobbo and other persons when undertaking the inquiry.

The matters examined by the Commission were at times highly sensitive and could lead to safety risks for people giving evidence or those affected by the information examined by the Commission. For this reason, some of the Commission’s hearings were closed to the public.

The Commission implemented arrangements to ensure that witnesses were protected, and that sensitive material and information was appropriately managed. The Commission’s hearings were generally live-streamed to its website with a 15 to 20 minute delay. This enabled the Commission to pause the live stream if sensitive information was disclosed inadvertently during the hearings.

In addition, where necessary, the Commission:

• provided witnesses with a discreet entrance to and exit from the hearing premises
• allowed witnesses to give evidence from a remote location through telephone or video link
• used pseudonyms to protect the identities of witnesses and other people mentioned in the inquiry
• made non-publication orders preventing the disclosure of information examined in hearings.

Counselling support was available to all witnesses to aid their mental health and wellbeing. The Commission engaged a specialist psychological counselling service to support all witnesses prior to, during and following their attendance at the hearings. Victoria Police and The Police Association of Victoria (TPA) also provided support to their members throughout the inquiry.

Expenses incurred by witnesses, including travel, meals and accommodation, if claimed, were reimbursed in accordance with the Inquiries Act and Inquiries Regulations 2015 (Vic).²⁵

Leave to appear at the Commission’s hearings

People wanting to take part in the Commission’s hearings had to apply to the Commission for permission to participate, known as ‘leave to appear’. Leave to appear enabled a person, or their legal representatives, to formally appear in part or all of the hearings, make submissions and, generally, to obtain a copy of the transcript and relevant material.²⁶ People could also make applications for leave to cross-examine a particular witness.

The Commission received 182 applications for leave to appear relating to 72 individuals or organisations, over the course of its hearings, and 11 applications for leave to cross-examine. Of these the Commission granted leave to appear to 63 parties.

The Commission granted ‘standing leave’ for hearings relating to terms of reference 1 and 2 to Victoria Police, Ms Gobbo, the State of Victoria, DPP, CDPP, AFP, ACIC, then Chief Commissioner, Mr Ashton, and former officers of the SDU who had been Ms Gobbo’s handlers during her time as a human source. This allowed these parties’ legal representatives to attend and appear at all of the Commission’s hearings in relation to these terms of reference, make submissions and apply to cross-examine witnesses.

Other individuals and organisations were granted limited leave to appear for certain parts of the Commission’s hearings, and leave to cross-examine certain witnesses where they held a direct or special interest in the matters that were being examined.

A list of parties granted leave to appear at the Commission’s hearings is at Appendix F.

Legal assistance

Current and former police officers who gave evidence at the Commission’s hearings were either represented by the lawyers acting for Victoria Police or had their own separate legal representation.

Other people affected by the Commission’s inquiry sought legal assistance. In October 2019, the State entered into a Memorandum of Understanding with Victoria Legal Aid to provide legal assistance to people who had been:

• issued with a notice to attend the Commission’s hearings
• issued with a request for information by the Commission requiring them to prepare a written witness statement
• granted leave to appear at the Commission’s hearings.²⁷

The Commission referred a small number of people to Victoria Legal Aid to obtain legal representation.

Non-publication orders and exclusion orders

The Commission endeavoured to conduct its inquiry as openly as possible. At times, however, it was necessary for legal, privacy or safety reasons to restrict access to some evidence given at its hearings.

Under the Inquiries Act, the Commissioner had the power to:

• prohibit or restrict the publication of any information that may identify a person who is a witness, or any information or evidence given to the Commission (known as ‘non-publication orders’)²⁸
• exclude any person from a hearing for reasons including the safety of any person, sensitivity of the proceedings and the possibility of prejudicing any other legal proceeding (known as ‘exclusion orders’).²⁹

In total, the Commission made 293 non-publication orders requiring people to be referred to by pseudonyms or restricting the publication of information.

The Commission also made 78 exclusion orders limiting the public, and on limited occasions the media, access to parts of the proceedings. It did so only where this was clearly required for security and/or safety reasons.

The Commission developed an accreditation system to permit members of the media, as appropriate representatives of the public interest, to attend many proceedings that were closed to the public. This allowed the media to report on matters arising from those closed hearings, subject to court suppression orders or Commission non-publication orders. In hearings where the content was highly sensitive, media representatives’ lawyers were permitted to stay in the hearing room.

Prior to the publication of this final report, the Commission reviewed its non-publication orders to consider whether they remained necessary and revoked those that were no longer needed.

Future access to documents that are subject to a non-publication order—in particular, documents and materials relevant to persons affected by Victoria Police’s use of Ms Gobbo as a human source—is discussed in Chapter 17.

Exhibits, transcripts and claims of public interest immunity

Transcripts of the Commission’s hearings and exhibits tendered during each day’s proceedings were made available on the Commission’s website as soon as practicable.

Many of the documents tendered as exhibits at the Commission’s hearings could not be published due to court suppression orders, PII claims or other legal restrictions on their distribution and publication.

A PII claim is a claim by the State to withhold information from legal proceedings or inquiries, if production of that information would be contrary to the public interest.³⁰ These claims are generally made by police. A PII claim on information relating to the identity of human sources is generally based on the need to protect the safety of human sources. Information that might reveal covert police methodology also generally attracts a PII claim, because of the need to mention the confidentiality of techniques that police use to detect and solve crimes.

On 5 June 2019, a protocol was agreed between the Commission, the State of Victoria and Victoria Police regarding the management and publication of documents relevant to a PII claim in the belief that this would speed up the process and avoid the costs and delays of contesting the claims in court.³¹

This protocol sought to enable Victoria Police to review exhibits (including witness statements) and transcripts and to redact content that was subject to a PII claim prior to the documents being posted to the Commission’s website. For several reasons, the protocol could not be implemented fully. This is discussed further in Chapter 16.

The Commission also provided the AFP with exhibits and transcripts, and an opportunity to make PII claims. Where necessary, the ACIC and IBAC were also provided with documents for their review.

Prior to publication on the website, the Commission considered the requested redactions to exhibits and transcripts and resolved any PII claims. It also reviewed the exhibits and transcripts against any court suppression orders and against the Commission’s own non-publication orders. The PII claims were then applied on an interim basis before publication to the website.

In total, 1,957 exhibits were tendered by the Commission. Of those, 125 exhibits were treated as confidential exhibits for safety and/or security reasons and were not able to be published.

The process the Commission adopted for the review and publication of exhibits is displayed in Figure 3.4. Transcripts were also reviewed in a similar way.

Figure 3.4: Process for review and publication of exhibits tendered at the Commission’s hearings

This extensive review process at times caused delays in the publication of exhibits and transcripts to the Commission’s website. This is discussed further in Chapter 16.

Research

The Commission’s inquiry into terms of reference 3–6 was informed by an in-depth research program that included:

• undertaking literature reviews and desktop research
• assessing policies and procedures provided by a range of law enforcement and other agencies
• consulting with organisations and experts with relevant knowledge and experience
• conducting focus groups with serving Victoria Police officers who hold human source management responsibilities
• auditing Victoria Police human source files relating to human sources with potential legal obligations of confidentiality or privilege
• preparing a consultation paper on disclosure practices relating to the use of human source information in the criminal justice system.

Some of these activities are discussed in more detail below.

Engagement with stakeholder organisations and experts

The Commission conducted extensive stakeholder consultation to inform its inquiries into terms of reference 3–6.

Between March 2019 and June 2020, the Commission consulted with 97 Victorian, interstate and international stakeholders and experts, including:

• law enforcement, intelligence and justice agencies
• prosecuting authorities
• bar associations, law societies and legal profession bodies and regulators
• police oversight, integrity and anti-corruption agencies
• academics and research institutes.

The number of stakeholders consulted by the Commission is displayed in Figure 3.5.

Figure 3.5: Australian and international stakeholders consulted by the Commission

The expertise of individuals and organisations consulted by the Commission gave it a detailed understanding of relevant legislation, policies, processes and frameworks in other jurisdictions. The consultations helped the Commission understand the practical operation of:

• current policies and frameworks related to human source management
• police disclosure obligations
• legal profession regulation
• other matters related to the terms of reference.

The experiences and insights of these stakeholders also enabled the Commission to develop evidence-based and practical recommendations for reform in these areas. The Commission thanks them for sharing their expertise.

A list of individuals and organisations consulted by the Commission is at Appendix G.

Focus groups with current Victoria Police officers

To obtain a comprehensive understanding of the adequacy and effectiveness of Victoria Police’s current human source management processes, the Commission considered it necessary to obtain the views and experiences of the Victoria Police officers who currently apply those processes.

Between December 2019 and February 2020, the Commission hosted six focus groups with 39 serving Victoria Police officers involved in human source management.

The objectives of the focus groups were to:

• gather information about how Victoria Police officers understand and apply human source policies and practices
• give officers an opportunity to reflect on the challenges and complexities arising from their use and management of human sources, and to contribute to the Commission’s inquiry and any potential improvements in policies, training, support and guidance material
• gain an understanding of Victoria Police’s broader operating environment and the likely practical consequences of any changes to its human source management framework.

In conducting the focus groups, the Commission was conscious of the sensitivity of information being discussed and of the need to protect the identities of human sources, the identities of officers who handle human sources and the integrity of confidential police methods.

The Commission also wanted to ensure that officers felt they were able to participate openly and honestly in the focus groups, without any concerns that their comments would be attributed to them in this final report or otherwise obtained by Victoria Police Executive Command. To manage these risks and concerns, all information collected from participants was de-identified.

The focus groups gave the Commission important insights into the practical operation of Victoria Police’s human source management framework and the processes that apply specifically to human sources who may be subject to legal obligations of confidentiality or privilege. The focus groups also enabled the Commission to test the operational feasibility of policy, procedural and structural reforms that might strengthen Victoria Police’s human source management practices.

The Commission is grateful to the Victoria Police officers who volunteered their time to participate in and support this project, and to Victoria Police Executive Command and Taskforce Landow for encouraging the initiative.

The outcomes of the focus groups are discussed further in Chapters 10, 11 and 12.

Audit and review of human source files

In late 2019, the Commission commenced an audit of 31 Victoria Police files relating to human sources with potential legal obligations of confidentiality or privilege, to assist the Commission’s work on terms of reference 3 and 5a.

The purpose of the Commission’s audit was to:

• inform the Commission’s assessment of the adequacy and effectiveness of Victoria Police’s current human source management policies and practices, and its compliance with the Kellam Report recommendations
• identify any issues arising from Victoria Police’s use of other human sources with legal obligations of confidentiality or privilege.

The 31 human source files related to three professional categories: government, journalist and medical. Lawyers and occupations associated with the legal profession were excluded from the audit, as the relevant files had been separately disclosed to the Commission, as discussed below.

The scope and outcomes of the audit are discussed further in Chapters 10, 11 and 12.

Review of human source files associated with the legal profession

During the inquiry, Victoria Police identified 12 human source files relating to people associated with the legal profession, other than Ms Gobbo.

Hard-copy redacted records were provided to the Commission for review. In some cases, issues relating to these human sources or prospective human sources were examined in private hearings.

The Commission’s review of the 12 human source files and its observations are discussed further in Chapter 10.

Consultation paper on disclosure practices

In November 2019, the Commission released a consultation paper seeking views from key stakeholders on:

• the current use of human source information in the criminal justice system from human sources who are subject to legal obligations of confidentiality or privilege
• Victoria Police’s practices for disclosing the use of such human sources to prosecuting authorities.

The consultation paper related to the Commission’s work on term of reference 4.³²

The paper asked stakeholders to comment on the adequacy of current processes in Victoria and whether there is a need for reform, including in relation to:

• the framework, policies and practices governing disclosure of relevant material by Victoria Police to the prosecution and the accused person
• the framework, policies and practices for resolving PII claims
• whether Victoria Police should be required to disclose human source material to the prosecution
• how well Victoria Police understands issues relating to legal professional privilege, PII and disclosure.

The consultation paper was circulated to a range of key Victorian agencies that the Commission considered would have an interest in, and understanding and experience of, these issues. The Commission received submissions in response from Victoria Police, the DPP, CDPP, Victoria Legal Aid, the Law Institute of Victoria and the Criminal Bar Association.

These responses are discussed further in Chapter 14.

Counsel Assisting the Commission

The role of Counsel Assisting the Commission was to:

• identify and advance lines of inquiry
• identify and determine the order of witnesses and lead the examination of witnesses at the public hearings
• provide advice on discrete areas of law and procedure
• provide submissions, including reply submissions, in relation to terms of reference 1 and 2 (discussed below).

Counsel Assisting did not have a role in drafting this final report or in the formulation of the Commissioner’s findings or recommendations.

Following the conclusion of the Commission’s hearings, Counsel Assisting continued their inquiries and then prepared written submissions to the Commission on the legal principles underpinning their analysis, a narrative account of the relevant events that had occurred, the cases that may have been affected, and the findings they considered were open to the Commissioner to make in relation to terms of reference 1 and 2.

The submissions of Counsel Assisting were independent of the Commission and did not represent the concluded views of the Commissioner. In preparing this final report, the Commissioner considered the submissions of Counsel Assisting, the responsive submissions of those affected by the inquiry, and other evidence before the Commission.³³

Counsel Assisting submissions and responsive submissions are discussed below.

Adverse findings process

As discussed above, the Inquiries Act enabled the Commission to conduct its inquiry in the manner it considered appropriate, subject to the Commission’s powers under the Act, its Letters Patent and the requirements of procedural fairness.³⁴ The Act also prescribes how procedural fairness is to be afforded when a royal commission proposes to make an adverse finding.

The Inquiries Act requires that when a royal commission proposes to make a finding that is adverse to a person, it has to be satisfied that the person:

• was aware of the matters on which the proposed finding was based
• had an opportunity, at any time during the inquiry, to respond to those matters.³⁵

The Inquiries Act requires a royal commission to consider a person’s response, if any; and, if an adverse finding is then made, to fairly set out their response in its report.³⁶

In June 2020, the Commission commenced a formal adverse findings process, as detailed below.

Adverse findings: terms of reference 1 and 2

The Commission’s findings and recommendations in this final report relating to terms of reference 1 and 2—that is, cases potentially affected by the use of Ms Gobbo as a human source and the conduct of Victoria Police officers in using Ms Gobbo as a human source—were informed by:

• information produced under a notice or provided voluntarily to the Commission
• public submissions
• evidence examined at the Commission’s hearings
• submissions received from Counsel Assisting
• submissions received from affected persons and organisations in response to Counsel Assisting submissions.

Counsel Assisting submissions

On 26 June 2020, Counsel Assisting produced written submissions to the Commission to consider in relation to terms of reference 1 and 2.³⁷ Those submissions set out:

• the guiding legal principles and methods that informed their inquiries and analysis
• a narrative account of the conduct of current and former Victoria Police officers and Ms Gobbo
• the findings they considered were open to the Commissioner to make
• the cases they considered may have been affected by the use of Ms Gobbo as a human source based on the evidence available to the Commission.

In their submissions, Counsel Assisting detailed their examination of 124 cases that may have been affected by the use of Ms Gobbo as a human source.³⁸

In September 2020, Counsel Assisting produced reply submissions to address some key issues raised in responsive submissions, discussed below.³⁹

Responsive submissions

The Commission provided certain people and organisations with copies of, or extracts from, Counsel Assisting submissions and invited them to make a submission to the Commission in response (known as a ‘responsive submission’).

Copies of Counsel Assisting submissions could not be distributed until the Commission’s application to vary court suppression orders was resolved. The suppression order proceedings are discussed below.

In late June 2020, Counsel Assisting submissions were circulated to Victoria Police, a number of former and current police officers, Ms Gobbo, the State of Victoria, DPP, CDPP, Office of the Chief Examiner, AFP and ACIC, so that they could prepare responsive submissions and make any PII or other non-publication claims.

From July 2020, Counsel Assisting submissions, with any PII and other non-publication claims redacted, were circulated to other people who may have been adversely or otherwise sufficiently affected by Counsel Assisting’s proposed findings, to prepare responsive submissions. Copies of the submissions were provided to:

• people whose cases were the subject of specific examination in Counsel Assisting submissions
• other people who may have been adversely affected by Counsel Assisting’s proposed findings.⁴⁰

All those who received a copy of Counsel Assisting submissions were provided with a reasonable opportunity to make a responsive submission. Where possible, and subject to its reporting timeframes, the Commission gave people additional time to respond, and accepted late submissions.

After publication of Counsel Assisting submissions and responsive submissions to the website, members of the public who considered that they may be adversely affected by proposed findings contended by Counsel Assisting or by responsive submissions were provided with seven days to make a submission to the Commission. Additionally, people and organisations who had already made a responsive submission were provided with the opportunity to make further submissions in response to submissions made by other parties.

Further detail on how the Commission met its procedural fairness obligations relating to terms of reference 1 and 2 is provided in Chapter 5.

The Commission received 45 responsive submissions from organisations and other affected persons.

The Commission carefully considered all responsive submissions and has fairly set out any relevant responses where it has made an adverse finding or comment in this final report.⁴¹

A list of responsive submissions received by the Commission is at Appendix D.

Publication of submissions

Redacted copies of Counsel Assisting submissions and responsive submissions were published to the Commission’s website in September 2020.

Prior to publication, those submissions were also reviewed by Victoria Police, the AFP and ACIC so that any PII claims and other non-publication claims could be made by those agencies.

Several people who received a copy of Counsel Assisting submissions—in particular, those whose cases may have been affected by the use of Ms Gobbo as human source—also approached the Commission to apply to:

• have their case study redacted from Counsel Assisting submissions prior to publication of those submissions to the Commission’s website
• be assigned a pseudonym to protect their identity.⁴²

The Commission redacted extracts from a number of case studies from Counsel Assisting submissions on PII, legal, reputational and/or safety grounds, and made non-publication orders to assign pseudonyms to people named in those submissions.

A decision not to assign a pseudonym to a current Victoria Police officer was challenged in court. This is discussed further below.

Following a decision of the Commissioner, content was also redacted from Counsel Assisting submissions relating to their contention that it was open to the Commissioner to find that various named current and former Victoria Police officers and Ms Gobbo may have committed criminal offences.

On 28 August 2020, at the request of Victoria Police, certain current and former Victoria Police officers and Ms Gobbo, the Commissioner published her reasons for that decision and her reasons supporting the Commission’s jurisdiction to make findings of statutory misconduct.⁴³

The Commission, under its Letters Patent, was required to conduct its inquiry in a manner that would not prejudice any ongoing investigations or court proceedings. The Commission has no judicial power. Whether criminal charges should be brought against an individual is a matter for the DPP, not the Commission. If charges are brought, those persons charged are presumed to be innocent and the charges must be determined in a court on the criminal standard of proof, which requires proof beyond reasonable doubt. This is discussed in Chapter 5.

Adverse findings: terms of reference 3–6

Terms of reference 3–6 did not require the Commission to consider the conduct of Victoria Police or Ms Gobbo. These terms of reference related to:

• Victoria Police’s current processes for using and managing human sources with legal obligations of confidentiality or privilege
• Victoria Police’s current processes for using and disclosing in criminal proceedings information provided by such human sources
• recommended measures to address Victoria Police’s use of any other human sources with legal obligations of confidentiality or privilege who came to the Commission’s attention; or any systemic or other failures in Victoria Police’s processes for its disclosures about, and recruitment, handling and management of, human sources with legal obligations of confidentiality or privilege
• any other matters necessary to satisfactorily resolve the matters set out in terms of reference 1–5.

In September 2020, the Commission provided Victoria Police, the DPP, Office of Public Prosecutions (OPP) and TPA with relevant extracts from the Commission’s draft final report relating to terms of reference 3–6 and invited them to make responsive submissions. The Commission carefully considered the responsive submissions received before making any adverse comments and, where relevant and necessary, fairly set out these responses in this final report.

A list of responsive submissions received by the Commission is at Appendix D.

The Commission’s reporting

On 1 July 2019, the Commission delivered a progress report to the Governor of Victoria. That report outlined the key events that led to the establishment of the Commission and its work as at 19 June 2019, including its interpretation of and approach to the terms of reference. The progress report did not include any findings or recommendations—these are included in this final report.

In this final report, the Commission reached conclusions regarding the number of potentially affected cases, the conduct of Victoria Police and its officers, and the conduct of Ms Gobbo.

The Commissioner did not have the power to make any findings of fact or law binding outside this Commission. In effect, the Commission’s findings and recommendations in this final report are advisory in nature and hold no legal force or effect. The Commission nevertheless notes the statement of the Premier of Victoria, The Hon Daniel Andrews, MP, to Parliament at the commencement of this inquiry that his Government intends to implement all of the Commission’s recommendations.⁴⁴

A list of the Commission’s recommendations can be found in the Final Report Summary.

Preparation of a public report

For the Commission to produce a public report, it had to:

• overcome restrictions imposed by existing court suppression orders
• navigate issues regarding the highly sensitive subject matter of the inquiry and issues regarding the safety of persons named in this final report.

It was also important that the Commission’s reporting did not delay the disclosure of information to those people whose cases were potentially affected by the use of Ms Gobbo as a human source.

The steps taken by the Commission to navigate those issues are discussed below.

Suppression order proceedings

During the course of its work, the Commission identified a significant number of court suppression orders that presented challenges for its inquiries.

In 2019, the Commission made three applications to the courts to vary suppression orders so that it could access protected information and facilitate witnesses to provide evidence at the Commission’s hearings.⁴⁵

On 1 May 2020, the Commission made an application to vary a further 52 suppression orders made in the Magistrates’ Court, County Court and Supreme Court of Victoria. The Commission requested that the orders be varied to provide that nothing in them would prevent people from disclosing information to the Commission, or prevent the Commission itself from disclosing information, that would otherwise be prohibited by the orders.⁴⁶

That application was filed in the Court of Appeal to overcome challenges the Commission faced in its reporting, in particular:

• the likelihood that Counsel Assisting submissions and responsive submissions would contain information that was the subject of suppression orders and that its disclosure could place the Commission and responding parties in breach of those orders
• the likelihood that the submissions and this final report would contain information that was the subject of suppression orders and the publication of those documents to the Commission’s website would contravene one or more of those orders.⁴⁷

There were 63 respondents to the Commission’s application, 55 of whom were individuals either the subject of one or more of the suppression orders, or a party to the proceedings in which the suppression orders were made. Other parties to the proceedings included Victoria Police, the DPP, CDPP, AFP and State of Victoria. Five of the 63 respondents opposed the Commission’s application.⁴⁸

On 23 June 2020, the Court of Appeal granted the Commissioner’s application to vary the suppression orders. The variation enabled the Commissioner to be able to determine for herself whether any orders in accordance with the Inquiries Act and Witness Protection Act 1991 (Vic) were necessary, taking into account matters including any potential resulting risks, whether to the personal safety of affected individuals or to the administration of justice.⁴⁹

Following the Court of Appeal’s decision, the Commissioner made several non-publication orders to protect the safety and reputation of people referred to in Counsel Assisting submissions, responsive submissions and in this final report.

The use of pseudonyms

At times, the sensitive nature of the information examined during the inquiry required the Commissioner to make orders to restrict the publication of information and protect the identity of people mentioned in Counsel Assisting submissions, responsive submissions and in this final report.

The Inquiries Act enables the Commissioner to make orders to protect the identity of a person in circumstances including where a person may be caused prejudice or hardship, including harm to their safety or reputation; there is a possibility of prejudice to other legal proceedings; or the Commissioner otherwise considers it appropriate.⁵⁰

In this final report, the Commission has used pseudonyms to deidentify some former and current Victoria Police officers, people whose cases may have been affected by the use of Ms Gobbo as a human source, and other people relevant to the inquiry. All requests for pseudonyms were carefully considered by the Commissioner, but not all requests were granted.

In July 2020, a current serving Victoria Police officer applied to the Commission for a non-publication order to apply a pseudonym over their name in Counsel Assisting submissions, any responsive submissions filed by another party, and this final report.⁵¹ That request was refused by the Commissioner as she was not satisfied, based on the material before her, that there was a significant risk to the officer’s safety.⁵²

The Chief Commissioner of Victoria Police commenced proceedings to review that decision. That application was dismissed by the Court of Appeal. The Court observed that if the order sought by the officer was made, other officers may similarly take advantage to anonymise their identity in the Commission’s reports.⁵³

The unanimous decision of the Court of Appeal found:

The anonymisation of the names of alleged wrongdoers would render the recommendations of the Royal Commission far less potent, and would have a severe impact on the rights of those who may have been the victims of Ms Gobbo’s conduct, and the complicity of any police in what might be established as having been a conspiracy to pervert the course of justice. Those people who might be shown to be victims of such conduct would be denied procedural fairness. Moreover, the community as a whole would be disadvantaged through a lack of transparency in relation to what might prove to be one of the greatest scandals of our time in relation to the workings of the criminal justice system.⁵⁴

During the Commission’s public hearings and during the preparation of this final report, the Commission made non-publication orders to protect the identity of people. Some people were assigned multiple pseudonyms throughout the inquiry, to ensure that they could not be identified.

Cases affected by the use of Ms Gobbo as a human source

The Commission was required to identify cases that may have been affected by the use of Ms Gobbo as a human source.

Alongside the Commission’s work, Victoria Police, the AFP, DPP and CDPP also sought to identify affected cases to meet their disclosure obligations. Throughout the inquiry, the Commission kept those bodies informed of the cases it had identified and intended to review.

The DPP and CDPP provided key documents to the Commission relevant to each individual whom the Commission identified as potentially affected, including indictments, summary prosecutions, sentencing reasons, court orders and appeal proceedings. The Commission only sought documents for those cases it considered warranted an in-depth review.⁵⁵

Further information was also sought from Victoria Police, including copies of criminal records relating to potentially affected persons.

During the inquiry, concerns arose regarding the timeliness of Victoria Police’s disclosures to affected persons and to the DPP and CDPP. In January 2020, the Commission requested that Victoria Police provide it with weekly reports. Those reports provided the Commission with insight into Victoria Police’s processes and methods for disclosing to affected individuals.

In Chapter 17, the Commission makes recommendations regarding the need for disclosure to be made to those persons identified by the Commission as individuals whose cases may have been affected. In Chapter 9, the Commission recommends that Victoria Police regularly reports on its disclosure to affected persons.

Endnotes