- December 30, 2019
- Clayton Rice, Q.C.
On December 3, 2018, suppression orders were lifted on an Australian case that blew the lid off the justice system in Victoria. It was revealed that a criminal lawyer had acted as an informant providing information to the police about hundreds of suspects including her own clients. The scandal prompted Premier Daniel Andrews to announce a royal commission.
The lawyer, referred to as Informer 3838, Lawyer X and the acronym EF was identified as prominent barrister, Nicola Gobbo, who acted for high profile figures during Melbourne’s gangland wars dating back to 2005. Her identity was disclosed when a suppression order was set aside by the High Court of Australia in a ruling dated November 5, 2018, reported as AB (a pseudonym) v CD (a pseudonym),  HCA 58. The High Court affirmed the rulings of two lower courts, Justice Timothy Ginnane in the Supreme Court of Victoria and the Victoria Court of Appeal, that the public interest in disclosure outweighed the public interest in immunity.
The narrow question before the High Court was whether it was possible to adequately protect the safety of Ms Gobbo and her children in the event of disclosure. It was apparent from the evidence that she and her children could adequately be protected if she entered the witness protection program. She refused, taking the position that Victoria Police could not be trusted to maintain confidentiality and she preferred to bear the risk than subject herself and her children to the burdens of witness protection. Her partner, Richard Barkho, is serving a five year sentence for drug trafficking.
The issue arose after a report of the Victorian Independent Broad-based Anti-corruption Commission (2015) had been provided to the Director of Public Prosecutions. The report concerned how the police deployed Ms Gobbo in obtaining convictions against Antonios Mokbel and six associates (the “Convicted Persons”). The anti-corruption Commission concluded that Ms Gobbo, while acting as counsel for the convicted persons, provided information to the police that had the potential to undermine their defences and that she also provided information about clients who made statements against Mr Mokbel and other convicted persons.
The unanimous full court held, at para 10, that Ms Gobbo’s actions were “fundamental and appalling breaches” of her obligations to her clients and duties to the court. The police were guilty of “reprehensible conduct” in knowingly encouraging her and were involved in sanctioning “atrocious breaches” of the sworn duty of every police officer. The court went on to find that the prosecution of the convicted persons was “corrupted in a manner which debased fundamental premises of the criminal justice system.” The public interest therefore demanded that Ms Gobbo’s anonymity as an informant be “subordinated to the integrity of the criminal justice system.” (See also: Calla Wahlquist. Gangsters, cops and Lawyer X: the police informant scandal that has shocked Australia. The Guardian. December 5, 2018)
You might ask – why did she do it? Well, she told us. “I helped because I was motivated by altruism, rather than for any personal gain,” she wrote in a letter of June 30, 2015, to Assistant Police Commissioner Steve Fontana. “What led me to do that was my own frustration with the way in which certain criminals (Carl Williams) were seeking to control what suspects and witnesses could and could not do or say to police via solicitors […]”. Ms Gobbo went on to say that she was also frustrated by being aware of large scale drug trafficking, murders and money laundering “without any serious inroads being made by the police.” Although she insisted that her motivation was “not for self-gain” it has been reported that she received a $2.88 million compensation payment from Victoria Police in 2010. (See: Melbourne gangland lawyer explains why she became a police informant. ABC News. December 4, 2018; and, In her own words: Why a top criminal barrister became Informer 3838. The Age. December 3, 2018)
What, then, are the ethical standards violated by Ms Gobbo? Let’s consider that question in the context of The Law Society of Alberta’s Code of Conduct (2018).
The rule that cuts to the chase here is the one that imposes the duty of loyalty on all lawyers. Yes, Ms Gobbo acted for the convicted persons when she was in a conflict of interest and would have fundamentally breached Rule 3.4-1 that prohibits a lawyer from acting where there is a conflict. In Canada, she would have violated both the ethical standard and the principle of fundamental justice under s 7 of the Charter of Rights. But, that would not have happened if she was loyal to her clients. The duty of loyalty – vested with the core values of confidentiality, commitment and honesty – is the controlling duty of professional conduct. It is a first rule described this way in the Code commentary, at p 30:
“The lawyer-client relationship is a fiduciary relationship. Lawyers accordingly owe a duty of loyalty to current clients, which includes the following: the duty not to disclose confidential information; the duty to avoid conflicting interests; the duty of commitment to the client’s cause; and, the duty of candour with a client on matters relevant to the retainer.”
Without loyalty, commitment to the client’s cause, a key component of resolute advocacy, would be gutted. In Groia v Law Society of Upper Canada, 2018 SCC 27, Justice Michael Moldaver, at para 72, described resolute advocacy as a “vital ingredient” of the adversarial system – a system premised on partisan advocacy. “Moreover,” Justice Moldaver continued, “resolute advocacy is a key component of the lawyer’s commitment to the client’s cause, a principle of fundamental justice under s. 7 [of the Charter].” Resolute advocacy requires criminal lawyers to take unpopular positions on behalf of their clients and sometimes wear harsh criticism from the public, the bar, and even the court because they are “the final frontier between the accused and the power of the state.”
Justice Moldaver went on, at para 75, to emphasize that “fearless advocacy extends beyond ethical obligations into the realm of constitutional imperatives.” What, then, does that mean? It means the duty of loyalty is not only the lawyer’s duty but the client’s constitutional right. A breach of the duty of loyalty is a constitutional question. Criminal lawyers are often called upon to criticize how state agents do their jobs – from challenges to unconstitutional searches to allegations of prosecutorial misconduct. They must therefore have the necessary latitude to satisfy their ethical standards, protect the client’s constitutional rights and fulfill their own constitutional obligations. And all for one thing – integrity.
Let’s head back Down Under.
On December 18, 2018, the Royal Commission into the Management of Police Informants was established. It was originally understood that Ms Gobbo acted as an informant between 2005 and 2009. However, Victoria Police then disclosed that their first contact with Ms Gobbo was in 1993. She was registered as a human source in 1995 and other lawyers may also have been registered as human sources. By June 19, 2019, the Commission had conducted 22 days of hearings and examined 32 witnesses. The scope of the inquiry therefore expanded into cases that may have been affected over an 18-year period during which Ms Gobbo was registered as an informant three times. (See: State of Victoria, Royal Commission into the Management of Police Informants, Progress Report, Parl Paper No. 43 (2018-19), at pp 9-10; and, Josie Taylor and Rachael Brown. Nicola Gobbo, barrister turned police informer, says her ‘greatest fear is the police themselves‘. ABC News. December 10, 2019)
On June 29, 2019, in a piece titled The ‘magical mystery tour’ of the Lawyer X commission, Sarah Farnsworth of ABC News described the hearings as “the best show in town”. The Commission has generated 60 suppression and closed hearing orders restricting media coverage. A discovery that the police withheld disclosure of 1,000 documents prompted Commissioner Margaret McMurdo to warn Victoria Police that “it is an offence under the inquiries act not to comply with her orders to produce.” Some heavily redacted material prompted lawyer Carly Marcs Lloyd to express confusion “why her own client’s name was blacked out on her copy.” And in a Kafkaesque bid to have the lawyers for Ms Gobbo’s former clients excluded from the hearing, police lawyer Renee Enborn suggested they could get transcripts of the proceedings after they were redacted by the police. That caused Commissioner McMurdo to muse that they had entered “cloud cuckoo land”.
One witness from this crooked house yet to testify is Nicola Gobbo. But that may change. On December 4, 2019, Commissioner McMurdo ruled that Ms Gobbo will give evidence on January 29, 2020, by telephone to accommodate her medical conditions. Commissioner McMurdo made the ruling while aware that she previously told her handlers she was prepared to falsely use her medical conditions to obtain an adjournment of a case. That reminded me of a memorable quip by Det Sgt Jack Blayney in 1996 who called her a “loose canon”. (See: Sarah Farnsworth. Lawyer X royal commission orders Nicola Gobbo to give evidence at inquiry hearings. ABC News. December 3, 2019; and, Calla Wahlquist. Lawyer X: the extraordinary story laid out before royal commission. The Guardian. March 30, 2019)
How, then, to discern what all this means? And how to strike the right choice of words? The place I arrive at when discussing the Gobbo case with colleagues is a place of silence, maybe some muttering and then apoplexy. Finding the right words to describe a systemic collapse of integrity is difficult without bursting into profanity. I tried to find a way to leave you with the right nuance, maybe something understated, one or two phrases that capture how vile was the betrayal. But, in the end, I just gave up.