Nicola Gobbo was prepared to plead guilty, testify against police

Nicola Gobbo was prepared to plead guilty to perverting the course of justice and testify against Victorian police officers including a senior figure in the gang-busting Purana taskforce over their involvement in a “joint criminal enterprise.”

However, in what may signal the end of the long-running Lawyer X saga, former High Court judge Geoffrey Nettle told state parliament that Director of Public Prosecutions Kerri Judd, KC, refused repeated requests to file criminal charges.

Nicola Gobbo outside the Supreme Court in 2004, at the height of her criminal defence career.Credit: Vince Caligiuri

Nettle, the special investigator appointed two years ago to build criminal cases against current and former police implicated by the McMurdo royal commission into the Gobbo scandal, declared his task had become “a waste of people’s time and scarce economic resources” and his office should be wound up.

He said if the Victorian government wanted the Office of the Special Investigator to continue its work, he would resign.

“Since it now appears to me that the director will not grant OSI permission to file any charge of relevant offence, I consider it to be pointless for OSI to continue,” he said in a special report to parliament tabled on Wednesday.

Nettle’s report and the release of correspondence between his office, the DPP and Attorney-General Jaclyn Symes shows the OSI believed it had sufficient evidence to bring three separate prosecutions against Gobbo and police on charges including perjury, perverting the course of justice and misconduct in public office.

Former High Court judge Geoffrey Nettle.Credit: Andrew Meares

The OSI redacted its special report to conceal the names of Gobbo, members of Victoria Police it wanted to charge and clients she informed against. The report contains information that clearly identifies Gobbo.

In Judd’s response to Nettle, the DPP questioned the passage of time since the alleged offences, the credibility of Gobbo as a witness and the public interest in prosecuting police in circumstances where they would be able to present a “good faith defence.”

“In light of what we know from evidence given at the Royal Commission into the Management of Police Informants, in any prosecution of current or former members of Victoria Police, a likely defence case theory is clear,” Judd wrote to Nettle.

“The accused will in all likelihood say that if, with the benefit of hindsight, any wrong or improper decisions were made, they were made in good faith in an effort to solve and prevent serious criminality.”

No member of Victoria Police has been prosecuted or formally disciplined since the exposure of the state’s worst legal scandal five years ago. Nettle was a member of a full bench of the High Court that in 2018 found the use of Gobbo as a registered police informant “debased fundamental premises of the criminal justice system”.

The court found police had engaged in “reprehensible conduct” and atrocious breaches of duty.

Under laws drafted by the Andrews government, the special investigator was not given power to lay charges. Instead, the OSI was required to refer any prosecutions to the DPP for consideration.

Douglas Drummond, a former special prosecutor whose investigations led to the jailing of former Queensland police chief Terry Lewis and other corrupt police exposed by the Fitzgerald royal commission, said this had resulted in a predictable outcome.

“I was appointed special prosecutor and given full discretion to investigate and decide whether or not to prosecute. It is difficult to see why the special investigator was not trusted with the power to prosecute,” Drummond said.

Shadow attorney-general Michael O’Brien said the OSI needed greater discretion over whether to bring cases to court but Attorney-General Symes, when questioned in parliament about Nettle’s report, ruled out any legislative changes.

“The DPP has a role. She has performed that role and I give no commentary in relation to her view versus the Office of the Special Investigator,” Symes said. “They have important roles, and I thank them both for their work, but I will not be retrospectively legislating to ... get a different outcome to what the independent DPP has determined.”

Premier Daniel Andrews backed the independence of the DPP.

Gobbo, pictured in an interview in 2019, was a barrister used by police to inform on her clients.Credit: ABC

“People are free to have their views, they’re free to have opinions about the future of their role,” he said. “What is really clear and important is that we have independent prosecutorial decision-making in this state. It doesn’t mean everybody necessarily agrees with the decisions that the director makes.”

When Nettle was appointed to the OSI, the Andrews government said the retired judge’s extensive experience at the top of Australia’s legal system would “ensure a comprehensive, independent and fair investigation is completed into these matters.”

The Police Association of Victoria said the dispute was a matter between the OSI and the DPP. Justice Margaret McMurdo, whose royal commission into the use of police informants recommended the establishment of the OSI, declined to be drawn back into the scandal.

Nettle met with Symes on Wednesday to discuss the impasse. When contacted, the retired judge said he could not comment beyond the contents of his special report to parliament until a decision had been made on whether to wind up or continue the OSI.

Nettle described Operation Spey, an investigation into an episode that took place inside the St Kilda Road offices of the Purana taskforce in 2006, as a “powerful case” and his strongest prospect of securing convictions.

That episode involved Gobbo convincing one of her clients to turn Crown witness against drug lord Tony Mokbel without disclosing to him that she was already working for police. The brief of evidence compiled by the OSI included statements from 22 witnesses and 5000 pages of admissible documentary evidence.

As part of Operation Spey, Gobbo had accepted her criminal responsibility for what happened to her client, a Mokbel drug cook who became infatuated with her, and that she was prepared to plead guilty to perverting the course of justice in exchange for a recommendation that she receive a non-custodial sentence.

This masthead revealed earlier this year that Gobbo had provided detailed “can say” statements to the OSI setting out what she would be prepared to testify to if called as a witness against police.

Nettle, in a letter to Judd earlier his year, conceded that while Gobbo’s credibility and reliability would be an issue at trial, her statements implicating police were corroborated by Victoria Police records and audio recordings. These include records of a meeting she had with one of her police handlers two days before the drug cook was arrested.

During the meeting, Gobbo and her handler discussed the ethical and legal implications of her providing information against the interests of her client. “What’s the big deal?” Gobbo asked. “You’re not going to tell him?” Police handler: “No we’re not.”

Another brief of evidence compiled by the OSI, dubbed Operation Charlie, accused a senior police officer of failing to report and investigate attempts to pervert the course of justice by colleagues. Nettle said the willingness of police to turn a blind eye to these alleged crimes damaged “the fundamental integrity of the criminal justice system.”

When the McMurdo royal commission handed down its finding in November 2020, Police Chief Commissioner Shane Patton described the use of Gobbo as a human source as “profound failure” in his organisation.

“I want to be abundantly clear that I do not believe, and nor has it ever been submitted by Victoria Police, that ‘the ends justified the means’,” Patton said. “That is not my position.”

Nettle last year complained about the lack of co-operation his office had received in obtaining documents held by Victoria Police.

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