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‘Hostile, inconsistent’: Major legal bodies on Lawyer X informing
Nicola Gobbo’s snitching could have major legal implications on the profession and police procedures, according to Victoria’s bar associations and law institutes.
Naomi Neilson
The Royal Commission into the Management of Police Informants (RCMPI) is due to hand down its final report in July, and if submissions are anything to go by, the profession may be further restricted in its communication with police and compliance will be strengthened.
Victoria Legal Aid CEO Louise Glanville agreed with the High Court’s description of police use of Ms Gobbo as having “debased” the principles of the criminal justice system.
“Legal practitioners are bound by a number of obligations to their clients, including a duty of confidentiality and judiciary relationships. These duties are the necessary precondition for maintaining a relationship of trust and confidence between lawyers and their clients.”
The Criminal Bar Association (CBA) of Victoria chair Daniel Gurvich QC mirrored this with a submission that noted Lawyer X’s “apparent duplicity… has cast doubt over assumption that has protected counsel” and that, for as long as legal professionals can act as sources for police, “there will be a risk to the safety of the Criminal Bar Association”.
It was a common submission – although, most commonly from police associations – that there was confusion in what constituted privileged and non-privileged information. For the purpose of police procedures, this definition may be tightened and training enforced.
To clarify this position, the Victorian Bar said: “Practitioners who are in vulnerable position by reason of status as informers may be disposed to waive their clients’ privilege without authority, and in any event are in the inherent position of conflict such that there can be no confidence in their capacity to protect adequately the interests of their clients.”
On whether lawyers should be used at all as human sources, the Law Institute of Victoria objected entirely, particularly for those subject to legal obligations or privilege. As such, if it is needed, the Department of Public Prosecutions (DPP) should be immediately notified.
“Where such a human source is used by police, the disclosures of the involvement in that category of source must be disclosed to prosecuting authorities at the commencement,” it said.
“Where any information that has informed, influenced, directed or assisted an investigator the DPP must be advised, by given any material relating to such information and must be in a position to disclose such material, even if a claim of PII is made against the material.”
While agreeing that the disclosures should be strengthened, Victorian Legal Aid (VLA) is not onboard with changing duties or regulations of the legal profession. It does, however, propose similar limits on how legal professionals should be used as human sources.
“We would not propose that there should be complete prohibition on providing information to police… However, where such a disclosure is required the lawyer will then immediately cease to act for that client and inform the client of the disclosure,” VLA said.
On how police should update their disclosure methods, VLA added that the commission should make recommendations for external, independent monitoring of police use in the area of public interest immunity. If police fail to do so, the consequence “is the prosecutors are ill-equipped to comply with their duty of disclosure”.
Deakin Law School also weighed in on the informing issue, noting that the use of human sources that are lawyers for the purpose of criminal investigations – and particularly those investigations into their own clients – is a “significant issue” for the justice system.
“No doubt, whether Victoria Police’s actions have led to miscarriages of justice will be the subject of litigation before the Victorian Court of Appeal and, possibly, the High Court,” it said.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
