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The other police informants on the edge of their own Lawyer X saga
Although it is hard to beat the extent to which Nicola Gobbo breached legal obligations, professional privilege and disrupted the whole of the criminal justice system in Victoria, the commission found a number of other lawyers at risk of their own Lawyer X scandal.
Naomi Neilson
In the final report into the Royal Commission into the Management of Police Informants (RCMPI), commissioner Margaret McMurdo said she first discovered the existence of 12 other human sources with legal obligations in 2019 with a letter from Victoria Police.
The two were both practising lawyers at the time of the contact but were not registered, as in both cases police “identified at some point during their engagement that their use of lawyers could give rise to a potential risk for Victoria Police and a conflict of interest”.
One was a court officer in 2014 who provided information to police but was never close to being registered due to their “erratic” behaviour and distrust that they would inform someone of the relationship. The other was a lawyer who provided information on two separate occasions in 2008 and again in 2014, but no charges were ever laid.
For the latter informant, Victoria Police identified in 2014 that the lawyer working as an informant “could give rise to a conflict of interest” and leave the force open to criticisms, right at the time Lawyer X media reports first emerged. Despite some officers signalling their intention to withdraw, some “continued to engage over the following months”.
None of the 12 human source files indicated that Victoria Police had sought any advice about their use. This is especially important to note as at least eight provided the police with information sometime after October 2011, when the force was provided with legal advice relating to concerns regarding Ms Gobbo as a human source.
In May 2020, Victoria Police advised the commission of another lawyer who was made an informant in 2019 and was not included in the original 12. The lawyer contacted the police in relation to the potential criminal offending of their personal associates.
In early 2020, the police officer who was communicating with the lawyer had submitted several information reports but wrote in them that their source of information was either anonymous or an unnamed member of the public. This was contrary to the new policy, which required a person to be named or registered before a report is complete.
When the detective finally registered the lawyer, the Human Source Management Unit was automatically notified and the ethics committee began examining the information, offering legal advice and completing a complaint/incident form in respect of the actions of the office, which could have amounted to a breach of Victoria Police policy.
The commission currently does not have access to 11 human source files due to police invoking a public interest immunity argument. More work will be required to determine whether there are any further legal issues or obligation breaches in those cases.
In the submissions process of the royal commission, members of the public made over 40 allegations against lawyers, a court officer and a public source who they presumed were human sources. Four lawyers were complained about by multiple submitters. Ms Gobbo also provided the names of two lawyers she believed were sources.
The detail provided by submitters to support their allegations varied between the belief that their lawyer was providing inadequate legal advice and the assumption the lawyer had a familiar relationship with the prosecuting authorities during their trial. The inquiry was unable to determine whether any of the 45 had been or are still informants.
Recommendations to alter legal professionals providing information to police
While Victoria Police had used, or considered using, other human sources with various forms of legal obligations or legal roles, there is no evidence to indicate that the police disseminated any privileged information that was then used in criminal trials.
However, the audit suggested a lack of understanding among officers about the issues relating to obtaining and using confidential or privileged information from their sources. The commission said this “corroborated themes and observations that emerged within other aspects of the commission’s work”, including focus groups with Victoria Police.
As such, the commission has recommended that Victoria Police make changes to their policies on framework and accompany that with the training of all officers involved with the management of human sources to support their ability to “identify potential obligations of confidentiality or privilege and promote an understanding of the consequences from using improperly obtained confidential or privileged information” in their investigations.
The commission has also recommended that Victoria Police make changes to decision-making structures and governance to provide robust internal oversight and transparent accountability for decisions about the registrations of human sources.
As for the 11 human source files unable to be accessed by the commission, it requires the Victorian government to appoint a suitably qualified person to review them for any evidence of legal breaches. The government has three months to do so.
The commission has also recommended the government implement legislation around Victoria Police’s registration, use and management of human sources to provide clear frameworks for police to obtain and use to ensure they are being ethical and justifiable.
Other articles related to the final report:
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
