Lawyer X: from the perspective of a criminal defence lawyer
For those of you not familiar with the story of Lawyer X, in 2019 it was revealed that Victorian barrister, Nicola Gobbo, had been working with police as an informer, which apparently included her providing police with otherwise confidential information about her clients, many of whom were high-profile, ‘colourful’ Melburnians. The revelation sparked much-deserved outrage from the legal community and particularly criminal defence lawyers and prompted the Royal Commission into the Mismanagement of Police Informants.
The Royal Commission has given us some interesting headlines over the past year or so, but it is now drawing to a close and the many interested parties, including Gobbo, have proffered final submissions. Those submissions apparently run for over 2,000 pages and no doubt make for interesting reading.
Amongst other things, Counsel Assisting the Commission submitted that Ms Gobbo’s role as an informant may have impacted over 1,000 cases in the criminal justice system and she must have been aware the evidence relied upon by the prosecution may have been improperly or illegally obtained. It follows that any illegal or improperly obtained evidence would have been inadmissible against an accused and not admitted into evidence unless the Court is satisfied (based on a list of particularised factors) that the value of the evidence outweighs the impropriety. Unfortuantely, many of Mr Gobbo’s clients appeared to have been denied the opportunity to even argue the point, let alone exclude improper or unlawfully obtained evidence.
Counsel Assisting further submitted, quite obviously, it was unlikely that an accused person would have maintained Ms Gobbo as their representative with knowledge of a channel of communication between their lawyer and police and her ongoing relationship with them.
“Ms Gobbo informing on an accused person may have involved a breach of confidence or legal professional privilege, and involvement in the tainting of evidence may create a further conflict of interest. In both circumstances an accused person may have been deprived of the opportunity to claim privilege or object to admissibility of evidence.”
In their submissions, the DPP agreed with Counsel Assisting on some aspects, noting that Ms Gobbo breached her legal ethical duties in numerous matters where she had a conflict of interest, created by her representation of multiple clients with inconsistent interests and the inherent conflict in her representation of clients on whom she was informing.
Ms Gobbo’s lawyers appeared to have tried to minimise her role and responsibility in the whole sorry saga. They submitted that Ms Gobbo’s conduct, whilst negligent, was not unlawful and was mitigated by the lack of oversight and guidance by senior Victorian Police. Ms Gobbo’s lawyers said that the evidence demonstrates that many of the clients provided information to her in social setting, which does not breach her duty of confidentially. Ms Gobbo would not be drawn on the number of impacted cases, submitting: “that is a matter for the commissioner to answer and the courts to consider”.
Whatever the findings of the Royal Commission, they will clearly make for interesting reading and likely be a useful tool for criminal defence lawyers to hold up as an example of how not to conduct their practice.