The Rule of Law, Legal Professional Privilege and the Lawyer X Issue
When Victoria’s gangland wars were in full swing the Victorian police engaged Nicola Gobbo as a police informant. At the time, Ms Gobbo was working simultaneously as a lawyer who was acting for clients in high-profile criminal cases.
In engaging Ms Gobbo, Victoria Police did not seek legal advice on the matter – even though by informing on her clients, Ms Gobbo was breaching ‘legal professional privilege’.
The Victorian Director of Public Prosecutions (DPP) recently announced that no prosecutions would be brought against Victorian Police over what the High Court described as “conduct which corrupted and debased the fundamental premises of the criminal justice system”.
The Victorian DPP said the evidence compiled by former High Court judge and now Special Investigator Geoffrey Nettle did not have a reasonable prospect of conviction.
Respected members of the legal profession have expressed dismay and confusion over the decision of DPP, not to bring charges against members of the Victorian police.
Following the scandal being made public, a Royal Commission was held into the Management of Police Informants.
On 30 November 2020, Commissioner McMurdo AC, who was appointed the task of heading up the commission, delivered a final report and recommendations to the Governor of Victoria.
Ultimately a Royal Commission into ‘Lawyer X’ determined that the use of Nicola Gobbo as a secret informer to the police was a “systemic failure” and could not have happened without “critical failures of leadership and governance” within the Victoria police force.
More than 100 officers, many of them in senior positions were aware of Ms Gobbo’s informing, and yet no one raised questions about the ethics or legality of what was happening. The Royal Commission also recommended that Victoria’s Office of Special Investigation (OSI) pursue the matter further, to determine whether criminal charges should be laid.
The OSI, which was headed by a former High Court Judge, Justice Geoffrey Nettle, recently finished its investigation and prepared briefs for Victoria’s Department of Public Prosecution (DPP).
Many were then anticipating that criminal charges would be laid, as a step towards restoring the damage done to the justice system.
Pressure from the legal profession
In the past few weeks, more than 35 of Victoria’s most preeminent lawyers and legal academics have expressed opposition to the decision by The Victorian Office of Public Prosecutions not to prosecute anyone and have signed a letter to the Victorian Government, calling on it to ensure the file stays open.
While the current DPP may not feel the department is in a position to pursue prosecution, a future DPP chief may. Time will tell.
Client Legal Professional Privilege
“A common law right that exists to protect the administration of justice and the right of individuals and other entities/organisations to obtain confidential advice about their legal circumstances.
It protects legal advice given by a lawyer to his or her client (advice privilege) and communications about actual or contemplated litigation or court proceedings (litigation privilege).
It is called "client legal privilege" because the privilege belongs to the client, not the lawyer. A lawyer may only disclose privileged communications if clearly instructed to do so by their client. However, the chief purpose of CLP is not to confer a right for the benefit of the client, but to facilitate the administration of justice.”
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