Lawyers have a very particular role in the adversarial system, and a corresponding set of ethical requirements. In the 2000s in Victoria, Nicola Gobbo, a criminal defence barrister became a secret, registered informer with the police. She arranged for some clients to give evidence against other clients, arguably framing them. In one case, Faruk Orman served 12 years in prison, 3 of which were in solitary confinement, for a crime which he maintained throughout he did not commit. Eventually, the arrangement came to light, the High Court ordered that Ms Gobbo’s identity be disclosed and a Royal Commission was immediately established to establish the facts in numerous cases. Faruk Orman’s conviction was overturned by the Victorian Court of Appeal as a serious miscarriage of justice. Nicola Gobbo’s conduct breached several fundamental ethical requirements. In this episode, we speak to Mr Orman’s solicitor, Ruth Parker, about that case and more generally about the lawyer’s role.
Transcript
EPISODE 7 – LAWYERS
Stephen Parker
In our episode on the adversarial system of justice we said that the role of lawyers differs in our system compared with an inquisitorial one.
In the adversarial system, such as in Australia, New Zealand, the UK and North America, the lawyer is to be a zealous and fearless advocate for their client. They must avoid conflicts of interest and owe a duty of confidentiality.
Stephen Bottomley
However, above all this, lawyers are officers of the court and have a duty to the administration of justice which overrides all duties to a client. In this way, the clash of opposing interests is supposed to become a fair contest before an independent judge, and perhaps jury.
Lawyers’ ethics came under intense scrutiny in Australia in what is often known as the lawyer X scandal, involving the criminal defence barrister, Nicola Gobbo.
Stephen Parker
In what was possibly the worst systematic miscarriage of justice in Australian legal history, Nicola Gobbo colluded with the police to set up her own clients, in the course of which she passed on their confidential information and actually tricked some of them into incriminating other clients.
This took place over a number of years ending in 2009.
She and the Victorian police tried to keep this secret but eventually in November 2018 the High Court effectively ordered that her name be revealed so that a group of convicted people could be told what had happened.
Stephen Bottomley
The High Court said that Nicola Gobbo’s conduct and that of the police was a corruption of the criminal justice system.
She had committed fundamental and appalling breaches of her obligations as counsel to her clients and her duties to the court system.
Likewise, said the high court, Victoria police had been involved in (and I’m quoting) “atrocious breaches of the sworn duty of every police officer to discharge their duties faithfully and according to law without favour or affection, malice or ill-will”.
Stephen Parker
A royal commission was established by the Victorian government within days, and the report of the commissioner, Margaret McMurdo QC, is a scathing indictment of what happened.
Although the Gobbo case is presumably an exceptional one, it does show up in bright lights what are supposed to be the duties of a lawyer, and (incidentally) of the police.
Stephen Bottomley
There are still many repercussions to come – the scandal is yet to play out fully – but already some convictions have been overturned on the ground of a serious miscarriage of justice.
The first of these concerned Mr Faruk Orman, who was released after spending 12 years in prison for a crime which he maintained throughout he did not commit.
Stephen Parker
The solicitor for Faruk Orman, who knows as much about this saga as anyone, is my daughter, Ruth Parker. Because she is my daughter, and I find her quite scary, I’ve asked Professor Bottomley to interview her briefly.
Stephen Bottomley
Ruth Parker, welcome to the Law in Context podcast.
Ruth Parker
Thank you very much for having me.
Stephen Bottomley
Ruth, this scandal has so many angles to it that it’s hard to know where to start. But can I ask you, a practising defence lawyer, what Nicola Gobbo really did wrong?
Ruth Parker
Well, I think as a starting point, we should probably first acknowledge what is expected of criminal defence lawyers in terms of their obligations to their clients.
All lawyers have these obligations, but in criminal law, they’re particularly significant because we’re dealing with individuals charged with very serious offences, trying to defend themselves against the overwhelming power of the state.
And in criminal matters, accused persons have to trust their lawyers.
The relationship of trust is essential because serious decisions have to be made in criminal matters and lawyers and clients have to speak frankly with each other to navigate how best to conduct the case.
In terms of individual duties, there’s the duty of loyalty, so not to do anything that would be adverse to their client.
Confidentiality, to keep the client’s matter and personal background confidential.
And privilege, not to disclose the instructions that are given, nor the advice given by the lawyer to the client.
Nicola Gobbo contravened every single one of those obligations to a number of clients across a number of years.
She did so in circumstances where her clients were charged with very serious matters, many of which attracted the potential for life sentences.
Stephen Bottomley
Ok, I understand that but let’s remember there were gangland wars occurring at the time, the police were under intense pressure, and they presumably thought that all the men being fitted up were actually guilty of serious crimes. Nicola Gobbo was helping them. Was it really so wrong?
Ruth Parker
So we’re talking about “noble cause” corruption. And the thing about corruption is it stops becoming noble pretty quickly.
And what we know from what occurred from the 90s all the way through to when this whole scandal was uncovered was that whilst there was a focus on what they called the gangland war, which for people perhaps outside of Victoria was a period from the late 90s to approximately 2005 where there were a series of murders associated with what they considered to be competing gangs and were drugs-related.
And the significance of the gangland wars was that, in fact police, whilst they were investigating, it wasn’t until a particularly brutal murder, a double murder, at a football clinic in the presence of a number of families where two men were shot to death in the front seat of a van with children in the back seat, that they realised that they actually had a real problem and they created the Purana Task Force.
And there are a number of high profile targets, including Tony Mokbel, Carl Williams, Mick Gatto and a number of others.
And Nicola Gobbo came to prominence because she represented a number of these individuals and most specifically Tony Mokbel and Carl Williams.
But at a certain point, what is apparent is she became way too close. She didn’t maintain appropriate professional boundaries.
And in a sense, she became part of the criminal organisation.
And so then she approached Victoria Police in circumstances where they were becoming concerned that when individuals associated with, for example, Tony Mokbel, were being arrested and interviewed she was being sent in to give them legal advice but for the ulterior purpose of ensuring that these people didn’t then give evidence or cooperate against the Mokbels.
And at some point, the two worlds collided and she approached the police in order to give them information at the beginning in relation to Tony Mokbel.
But then it progressed and advanced way further than the Mokbels, even way further than the central players in this gangland war.
And that’s when, for example, Orman, somebody, a young man who was only vaguely associated with people involved, got roped in.
So in answer to your question whether what she did was wrong, it was very wrong.
And it affected people, not just the real kingpins like the Mokbels, but it affected people all the way down to a young Turkish bloke in his 20s who worked in a panel beating shop, who went to jail for 12 years, three of which were in solitary confinement for a murder that he’s always maintained he didn’t commit and which he would not have been convicted of had it not been for a witness that his own lawyer turned against him.
Stephen Bottomley
Ruth Parker, we already know that several convictions have been overturned, and there are other cases under way which we could not properly talk about until they finish. In general terms, however, how do you think this will all play out?
Ruth Parker
I don’t really know. People like myself were very disappointed that the Office of the Special Investigator, that was set up to investigate these matters, had to be wound up because of what seems to be a global position taken by the current Director of Public Prosecutions, Kerry Judd, that she will not prosecute police as a result of these matters.
We would have liked an independent director to make those decisions in relation to charging.
But there are a number of appeals that are ongoing through the Court of Appeal.
And part of the complicating factor is that because all of these trials were heard in circumstances of secrecy there are close to 100 suppression orders across all these matters.
So the OPP themselves are now litigating in court trying to have suppression orders varied to allow people like myself, who still have a number of individuals who are appealing their convictions, to allow me to have the evidence of what occurred in order to prosecute and appeal.
We know in Faruk’s case that there was a sense of urgency because he was still custody, as was Zlate Cvetanovski, who was the second Lawyer X client to be released from custody, also one of my clients.
But where they are not incarcerated, we’re seeing a real relaxed approach to disclosure, which is quite frustrating in circumstances where all of these people have had their lives significantly impacted by their convictions.
And in circumstances where after a Royal Commission we’re still waiting months and months for material that should have probably been disclosed to us 10 years ago.
Stephen Bottomley
Ruth Parker, thanks for joining us today, and I’ll hand back to Stephen Parker to draw some threads together before we close.
Stephen Parker
The lawyer X scandal concerned behaviour that was the very opposite of what a lawyer in the adversarial system is supposed to be. Nicola Gobbo betrayed client confidences, allowed other interests to get between her and the client, failed to act zealously on behalf of the client, and arguably misled the court.
Added to all this, the Victorian Director of Public Prosecutions has said that no prosecutions will be pursued. And the state government is doing nothing further.
Go figure.
FURTHER READING
Stephen Bottomley and Simon Bronitt, Law in Context (Federation Press, 5th ed, 2023) Chapter 7, Lawyers, Clients and Ethics
Australian Solicitors’ Conduct Rules 2022, with 2024 Commentary, ASCR Commentary.pdf (lawcouncil.au)