The damning Supreme Court findings that could free Tony Mokbel

Police took part in a “joint criminal enterprise” to pervert the course of justice when they used barrister-turned-informer Nicola Gobbo to bring down drug kingpin Tony Mokbel.

A damning Supreme Court finding on Monday about the conduct of prosecutors and police in the Lawyer X case is the strongest indication yet that Mokbel, who is serving a 30-year prison sentence, could succeed in having his convictions quashed.

Tony Mokbel being led into court on Monday.Credit: AAP

Justice Elizabeth Fullerton – a NSW judge who heard the case to avoid conflict-of-interest concerns in a scandal that has plagued the entire Victorian justice system for more than 15 years – handed down her “factual” findings on 24 major questions about the Mokbel conviction.

“I was satisfied that the elements of a joint criminal enterprise to attempt to pervert the course of justice were made out and that four members of Victoria Police participated with Ms Gobbo in that agreement to achieve that unlawful objective,” she said.

The finding related to Gobbo’s involvement in providing information that had one of her clients – a drug cook – arrested while she represented the client with the knowledge of Victoria Police. Eventually, Gobbo’s client was encouraged to plead guilty and provide evidence against Mokbel.

He was one of three key supergrass witnesses whom Gobbo and Victoria Police allegedly manipulated to help prosecute Mokbel, the court heard.

“I am satisfied the evidence disclosed a raft of improper practices in the way in which a number of Victoria Police officers conducted their investigation into Mr Mokbel’s criminal associates, in particular those who ultimately agreed to give evidence against him,” Fullerton said.

Fullerton found former director of public prosecutions John Champion, now a sitting judge of the Supreme Court, also committed a serious “error in judgment” for failing to disclose Gobbo’s role as a police supergrass in 2012 and later.

Fullerton also “rejected significant aspects” of the evidence of former chief commissioner of police Simon Overland as “unworthy of acceptance” over Victoria Police’s apparent failure to obtain legal advice about using a lawyer as an informer.

“There is every likelihood that Victoria Police would have been advised against registering her as an informer at all, so great were the legal and ethical risks in doing so,” she said.

Former police commissioner Simon Overland in 2019.Credit: Jason South

Fullerton stressed that her findings in relation to potential criminal conduct were made on the balance of probabilities, which is a “standard different from and lower than a standard of proof beyond a reasonable doubt”.

Gobbo’s role in the Lawyer X scandal was also described as “a fundamental and deliberate breach of her ethical and [professional] obligations as a lawyer”.

“There is also very likely a psychological dimension underpinning Ms Gobbo’s decision to become an informer, and her apparent enjoyment at being an informer while continuing to practise as a criminal lawyer for the very clients, including Mr Mokbel, against who she was informing,” Fullerton said.

The stinging findings were greeted with a big smile by Mokbel after the court adjourned. His case is now bound for the Court of Appeal, which will ultimately decide whether to quash or uphold his drug trafficking convictions.

The appeal centres on Gobbo’s involvement in providing police with information about one of her clients, a drug cook, whom she ultimately encouraged to plead guilty and provide police with evidence about Mokbel.

Then-director of public prosecutions Kerri Judd last year refused to bring a criminal prosecution against anyone involved in the Gobbo scandal despite being provided with criminal briefs by the then office of the special investigator.

Fullerton did not publish her full findings on Monday, to allow Victoria Police and other parties to make applications to potentially suppress part of the material.

The court heard the judgment runs to more than 600 pages and canvasses the evidence of more than 38 witnesses and hundreds of documentary exhibits.

One of the central questions Fullerton examined was what Champion knew about police’s use of Gobbo as an informer, when he knew it and what he did about the information, as Mokbel’s appeals against his convictions were under way in 2012.

“After a close and considered examination of all the evidence bearing upon that question and after applying the legal principles for the independent duty of disclosure at common law by which the director was bound, I was satisfied the [then] director had sufficient information as at September 2012 to activate his independent duty of disclosure – and that he failed to do so,” Fullerton said.

“I was unable to comfortably reach a conclusion as to why the [then] director breached his duty of disclosure, other than it being a result of an error of judgment.”

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