In its response, the DPP said it could not be concluded that Ms Gobbo maintained any ongoing legal relationships between long stretches of time. For example, the fact that Ms Gobbo appeared at a hearing in 2006 and again in 2008 “should not lead to factual findings that a lawyer-client relationship existed for the intervening period”. 

“Regularly sharing meals, consuming alcohol, meetings at car washes, cafes and bars after hours, babysitting their children, and participating in general gossip are examples of the types of behaviour Ms Gobbo engaged in with persons described as ‘clients’,” the DPP submitted. 

“The DPP submits that Ms Gobbo blurred professional boundaries to the extent that it is not possible for this commission to make findings of fact, to the requisite Briginshaw standard, as to the legal partnership [Ms] Gobbo maintained with her clients at various times in the absence of clear, objective evidence.”

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The DPP has, however, agreed with CA in finding that Ms Gobbo breached her legal ethical duties to her clients in numerous matters where she had a conflict of interest – created by her representation of multiple clients with inconsistent interests and by the inherent conflict in her representation of clients that she was informing on. 

In saying that, DPP has also cautioned the commission from implying the Office of Public Prosecutions and Crown prosecutors could monitor or control conflicts of interest of a criminal defence lawyer. The submission indicated that the DPP is “ill-equipped” to do so as prosecutors are not able to know the extent of a defence lawyer’s conflicts.

“Ms Gobbo’s conflicts of interest were deliberately kept from the prosecution. While the central fact renders the case highly unusual, other features of the evidence [highlight] problems which might arise more often if there were general expectations prosecutors would intervene to cure conflicts of interest on the part of the defence counsel,” the DPP said. 

For example, in December 2005, Ms Gobbo visited Mr McGrath (name redacted) and offered to engage him with other lawyers because she had acted for an opposing client (Mr Andrews, name also redacted). If a prosecutor had been aware of this, they would not have been in the position to know the scope of advice she provided, the extent of the disclosure and whether either party had given informed instructions for her service. 

“The appropriate policy response to the kinds of conflict of interest exposed before this commission is to examine the powers and functions of the Legal Services Board and the Legal Services Commissioner,” the DPP concluded.

In the response to the CA submissions, Ms Gobbo’s lawyers submitted she breached her professional duties in relation to a number of clients but that the information passed onto police was not legally privileged “as it related to ongoing crime”. 

“The criminals involved often discussed matters in non-professional settings, blurring the relationship between lawyer-client and associate-friend. As Ms Gobbo described, often these individuals would discuss criminality in front of her as though she was a piece of furniture in the room,” her lawyers submitted. 

“That information could never be privileged and, as conceded by counsel assisting, the disclosure of it in many circumstances was a permissible breach of confidentiality.” 

Commissioner confirms jurisdiction to make statutory misconduct findings

Current and former officers with Victoria Police contended that the commissioner could not find that any officer or Ms Gobbo committed criminal offences or make any finding that some officers may have breached the Victoria Police Act 2013. 

Although deciding to not make these findings in the final report, the commissioner said the commission had the jurisdiction to do so and nothing in the Inquiries Act or Charter prohibited her from making judgements: “To find otherwise would be to make mockery of this commission and of the intent of those who established it.” 

Commissioner McMurdo said her primary concern is exercising administrative and not judicial powers and whether criminal charges brought are matters for the Victorian Director of Public Prosecutions and the courts to decide. Any charges must then stand up under proof beyond reasonable doubt where anything CA or the commission stated about them during the inquiry is not to be used as evidence. 

“Public discussion of whether named individuals may have committed specific criminal offences in submissions or the final report could unfairly prejudice any future trials and could put at risk the presumption of innocence and Charter rights to a fair trial,” the DPP said.

The DPP has confirmed that if criminal proceedings commence, the evidence from the commission “is generally inadmissible in any criminal proceeding” and steps would be taken to gather inadmissible evidence to assess the true strength of the case. These steps are not the function of the DPP and the OPP. 

Unusual submissions to keep an eye on in the final report

Was there more to the informer/handler relationship? CA submitted that the commissioner should find that officer Jeff Pope and Ms Gobbo had not engaged in a “personal or sexual relationship”. However, Ms Gobbo’s lawyers submitted that they did and that there was “no plausible reason” for her to lie. 

“On the other hand, Mr Pope had so much to lose,” her lawyers said. “Admitting an affair would have meant he had betrayed his wife. It would also mean he lied in an affidavit in 2011 and committed a criminal offence in doing so.”

Although it sounds like nothing more than gossip, CA and Ms Gobbo’s lawyers felt it important enough to address so it’s likely to be included in the final report. 

Father issues cause enough? Many of Ms Gobbo’s health factors were noted in her lawyer’s submission, including mental health struggles. 

Ms Gobbo’s lawyers submitted that her personality had much to do with the fact her father died when she was in her final year of secondary studies. Her lawyers submitted that she “sought to fill [a void] with fatherly figures” and it explains the willingness to “impress and be the best” when it came to being an informer. 

Even if this particular bit of information does not end up in the final report, there is a very strong possibility that commissioner McMurdo will address documents from Ms Gobbo’s psychologist pertaining to her behaviour. 

Catch up with Lawyer X

•     Lawyer X: Counsel Assisting submissions detail legal breaches, wrongdoing
•     Lawyer X and Paul Dale: The story of dirty tricks, cover-ups and corruption
•     Lawyer X: The informing, the lies and the year of inquiry
•     ‘Hostile, inconsistent’: Major legal bodies on Lawyer X informing
•     ‘The entire ethics of this was wrong’: Lawyer X admits to royal commission