The current so-called ‘Lawyer X’ scandal was sparked by explosive revelations that high-profile Melbourne barrister Nicola Gobbo was enlisted as a secret informant by Victorian police. This is a real case to watch in terms of lawyer-client privilege.  

 

 

About 10 years before the birth of Christ, the great Roman poet Publius Ovidius Naso (widely known as Ovid), in his collection of epistolary poems known as The Heroides, coined the Latin phrase Exitus acta probat, which translates roughly to the often-quoted mantra ‘the end justifies the means’.

 

It’s a sentiment celebrated by the Italian Renaissance writer Niccolo Machiavelli in the 1500s and enthusiastically embraced by a long list of authoritarian dictators throughout history. Thankfully, it has no place in the criminal justice system of any modern Western democracy.

 

About 30 years ago, I had the instructive experience of representing a senior Queensland police officer who was charged with corruption and perjury before the Fitzgerald Inquiry into Police Misconduct. My client had been a police officer most of his life and had risen to heady ranks in the now-infamous Licensing Branch.

 

By the time he was called to give evidence before the inquiry, the commissioner, Tony Fitzgerald, QC, had already heard nearly two years of evidence, with daily sensational revelations chronicling the rise and rise of what became euphemistically known in police circles as ‘The Joke’, a deeply-entrenched system of corrupt police behaviour that protected and profited from illegal casinos, brothels, and sly grog shops throughout Queensland.

 

A string of witnesses had identified my client as being in on The Joke. However, when he eventually stepped into the witness box at the inquiry, consistently with the strict code of silence his compatriots once had commanded, he denied all involvement.

 

It didn’t work out as he planned…

 

Unbeknown to my client, the commission had secret tape recordings and other irrefutable evidence that ultimately proved not only that he was part of the corrupt system, but that his evidence denying it was nothing but perjury. When it all eventually came out and he pleaded guilty to the charges, my job was to prepare his plea in mitigation of penalty at a sentence hearing in the District Court.

 

That involved digging down to where it had all started for him; it was a fascinating and educative exercise.

 

The product of a humble upbringing, my client signed up as a fresh-faced young constable, imbued with a steely desire to uphold and enforce the law. But in his first few years on the force, he soon learnt from seasoned old heads that the job just wasn’t fair dinkum. Because the crooks had a right to silence, his superiors assured him, the only way police could pin them was to ‘drop a verbal on them’, meaning fabricate evidence they had confessed to the crime, and then back it up by lying in court.

 

It involved serious criminal behaviour by police, systematically perjuring themselves in the courts, but the ‘verbal’ was standard police practice in those days, excused by otherwise good cops as ‘the end justifying the means’.

 

As the years passed and the idealism of youth gradually faded, replaced by the tedium of making ends meet on a humble cop’s wage, it became a small step for an otherwise essentially good man who routinely broke a few rules, for all the right reasons — to get the job done — to break a few more, relatively benign ones, to profit himself.

 

I recently heard that old adage about the ends justifying the means recycled in a different — but then again not all that different — context.

The current so-called ‘Lawyer X’ scandal was sparked by explosive revelations that high-profile Melbourne barrister Nicola Gobbo, who for years represented a host of major Melbourne underworld figures, was in fact enlisted as a secret informant by Victorian police decades ago, and was allegedly used by them to inform on, among others, her very own clients.

The Victorian Royal Commission into the Management of Police Informants is now probing those claims which, if proven, point to an extraordinary breach of lawyer-client privilege that has shocked and outraged the legal profession not only in Victoria, but throughout the Western world.

 

When the Victorian Director of Public Prosecutions John Champion learnt of Gobbo’s alleged subterfuge, he sought to inform some of her former clients that their convictions could be ‘unsafe’ due to her duplicitous actions, but he was sternly warned to back off by high-ranking police. It was only when the High Court eventually ordered the identity of the so-called Lawyer X be disclosed that the full extent of Gobbo's bizarre double-dealing finally came fully to light.

 

It was not just some academic exercise in legal esoterics. Lawyer-client privilege is essentially the right of all citizens to have private communications with their lawyers kept absolutely confidential, and there could be no purer example of that than the duty of a criminal barrister not to disclose her instructions to police, prosecutor, and others. In Gobbo’s case, the alleged disclosures led to controversy surrounding not only the conviction of some of her clients, but the investigation of the still-unsolved underworld murder of two fellow informants.

 

When retired senior Homicide Squad detective Charlie Bezzina, a 37-year Victoria Police veteran and former member of the Purana Taskforce that investigated the Melbourne ‘Underbelly’ gangland war, was asked about the Lawyer X scandal, he had an all-too-familiar take on it.

 

“Was it fair?” he asked rhetorically. “Did the methods justify the end?”

It sounded like something I’d heard before, and Mr Bezzina’s answer to his own question — with the philosophical observation, “I don’t think the ordinary citizen really cares as long as the bad guy is locked up” — seemed reminiscent of an old-school culture that might just have led to the problem in the first place, not only in Victoria, but 30 years earlier in Queensland.

 

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