Home  |   Reasons for Nicola Gobbo’s removal from the roll of lawyers published

Reasons for Nicola Gobbo’s removal from the roll of lawyers published

Posted on Categories Professional discipline Tags , , , , , , , , , Leave a comment on Reasons for Nicola Gobbo’s removal from the roll of lawyers published
THE FACTS

Former Victorian criminal barrister Nicola Gobbo represented a number of high-profile clients during her career at the bar. It was later discovered that she had also been acting as a police informant, and was using confidential information obtained from her clients to assist police in obtaining evidence. This revelation sparked a royal commission in Victoria, and Gobbo’s evidence at the royal commission suggested her motivation for this extraordinary course of conduct was to feel valued.

Gobbo had not held a practising certificate since 2014.

Some of Gobbo’s clients have subsequently applied to set aside their own convictions given that Gobbo had informed on them.

On 7 October 2020, proceedings were commenced by the Victorian Legal Services Board in the Victorian Supreme Court to remove Gobbo from the roll of practitioners.

An agreed statements of facts tendered pursuant to s 191 of the Evidence Act 2008 (Vic) revealed that the application for removal from the roll related to Gobbo acting for six different clients, but that prior to this, Gobbo’s affidavit sworn for the purpose of admission to practice did not disclose an ongoing association beyond September 1993 with her housemate who was also charged with drug offences, or that further charges that had been brought against him.

Lawyers Weekly recently reported that Nicola Gobbo had been removed from the roll of practitioners due to her role as a police informant against her own clients.

BARRISTERS’ CONDUCT RULES

The Barristers’ Conduct Rules relevantly provides as follows:

12. A barrister must not engage in conduct which is:

(a) dishonest or otherwise discreditable to a barrister;

(b) prejudicial to the administration of justice; or

(c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

13.A barrister must not engage in another vocation which:

(a) is liable to adversely affect the reputation of the legal profession or the barrister’s own reputation;

(b) is likely to impair or conflict with the barrister’s duties to clients; or

(c) prejudices a barrister’s ability to attend properly to the interests of the barrister’s clients.

108. A barrister must not disclose (except as compelled by law) or use in any way confidential information obtained by the barrister in the course of practice concerning any person to whom the barrister owes some duty or obligation to keep such information confidential unless or until: (a) the information is later obtained by the barrister from another person who is not bound by the confidentiality owed by the barrister to the first person and who does not give the information confidentially to the barrister; or (b) the person has consented to the barrister disclosing or using the information generally or on specific terms; or (c) the barrister discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the barrister’s legal or ethical obligations.

Removal from the roll

In Ziems v The Prothonotary of The Supreme Court of N.S.W. (1957) 97 CLR 279, Kitto observed that:

“The issue is whether the appellant is shown not to be a fit and proper person to be a member of the Bar of New South Wales. It is not capable of more precise statement. The answer must depend upon one’s conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a barrister in a system which treats the Bar as in fact, whether or not it is also in law, a separate and distinct branch of the legal profession. It has been said before, and in this case the Chief Justice of the Supreme Court has said again, that the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client’s confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar.”

As was observed in Victorian Legal Services Commissioner v Horak [2016] VSC 780 (15 December 2016):

“In order to exercise its discretion to remove a practitioner from the roll, the Court must be satisfied at the time of the hearing that the practitioner is not a fit and proper person to be a legal practitioner, and is likely to remain so for the indefinite future.”

Breaching client confidentiality has been held to amount to professional misconduct in Queensland. The practitioner in that case was removed from the roll for disclosing the confidential information on national television.

SUPREME COURT DECISION

Justice Jacinta Forbes QC of the Supreme Court of Victoria removed Ms Gobbo from the roll of lawyers in that state. This decision was made with Gobbo’s consent. The reasons have now been published.

Forbes J quoted the High Court’s conclusions in AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2019) 362 ALR 1 with respect to Gobbo’s conduct:

“[Gobbo’s] actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of [Gobbo’s]’s obligations as counsel to her clients and of [Gobbo’s]’s duties to the court.”

Forbes J concurred with those observations, and held that Gobbo’s conduct “demonstrated partiality and so lacked honesty”.

Forbes J held that whilst the content and omissions in the affidavit sworn for the purpose of admission to practice might not standing alone warrant removal from the roll, Gobbo’s later conduct as a barrister meant that “her position is not capable of rehabilitation”.

For these reasons, Gobbo was not a fit and proper person and had to be removed from the roll (struck off). This means she will never practice as a lawyer again.

CONCLUSION

It is hard to think of a more serious breach of a lawyer’s duties to their client than informing on them to the police. Nicola Gobbo committed this gross breach of trust on numerous occasions over a course of years. The result was legal pandemonium in Victoria that will take years to be resolved. Public confidence in the administration of justice in Victoria is also likely to have been impacted. In addition, there was non-disclosure of material facts in her application for admission to the legal profession. For all of these reasons, a striking off order was the logical outcome.

Nicola Gobbo aka Lawyer X removed from the roll of lawyers

Posted on Categories Legal profession, Professional discipline Tags , , , , , , Leave a comment on Nicola Gobbo aka Lawyer X removed from the roll of lawyers

THE FACTS

Former Victorian criminal barrister Nicola Gobbo represented a number of high-profile clients during her career at the bar. It was later discovered that she had also been acting as a police informant, and was using confidential information obtained from her clients to assist police in obtaining evidence. This revelation sparked a royal commission in Victoria, and Gobbo’s evidence at the royal commission suggested her motivation for this extraordinary course of conduct was to feel valued.

Gobbo has not held a practising certificate since 2014.

Some of Gobbo’s clients have subsequently applied to set aside their own convictions given that Gobbo had informed on them.

Recently, proceedings were commenced in the Victorian Supreme Court to remove Gobbo from the roll of practitioners.

Lawyers Weekly now reports that Nicola Gobbo has been removed from the roll of practitioners due to her role as a police informant against her own clients.

BARRISTERS’ CONDUCT RULES

The Barristers’ Conduct Rules relevantly provides as follows:

12. A barrister must not engage in conduct which is:

(a) dishonest or otherwise discreditable to a barrister;

(b) prejudicial to the administration of justice; or

(c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

13.A barrister must not engage in another vocation which:

(a) is liable to adversely affect the reputation of the legal profession or the barrister’s own reputation;

(b) is likely to impair or conflict with the barrister’s duties to clients; or

(c) prejudices a barrister’s ability to attend properly to the interests of the barrister’s clients.

108. A barrister must not disclose (except as compelled by law) or use in any way confidential information obtained by the barrister in the course of practice concerning any person to whom the barrister owes some duty or obligation to keep such information confidential unless or until: (a) the information is later obtained by the barrister from another person who is not bound by the confidentiality owed by the barrister to the first person and who does not give the information confidentially to the barrister; or (b) the person has consented to the barrister disclosing or using the information generally or on specific terms; or (c) the barrister discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the barrister’s legal or ethical obligations.

Removal from the roll

In Ziems v The Prothonotary of The Supreme Court of N.S.W. (1957) 97 CLR 279, Kitto observed that:

“The issue is whether the appellant is shown not to be a fit and proper person to be a member of the Bar of New South Wales. It is not capable of more precise statement. The answer must depend upon one’s conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a barrister in a system which treats the Bar as in fact, whether or not it is also in law, a separate and distinct branch of the legal profession. It has been said before, and in this case the Chief Justice of the Supreme Court has said again, that the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client’s confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar.”

The test is whether it is probable that a legal practitioner is permanently unfit to remain a lawyer. Conduct of a serious nature can demonstrate that this the case. As Daubney J noted in Legal Services Commissioner v Meehan [2019] QCAT 17:

“It is the view of this Tribunal that the nature and extent of the respondent’s dishonest wrongdoing in the course of his professional practice, and his convictions for the criminal offences arising from that conduct, are such as to provide “instant demonstration of unfitness”. They bespeak a character tainted by dishonesty.”

Breaching client confidentiality has been held to amount to professional misconduct in Queensland. The practitioner in that case was removed from the roll for disclosing the confidential information on national television.

SUPREME COURT DECISION

In orders made without reasons yesterday, the Supreme Court of Victoria’s Justice Jacinta Forbes QC has removed Ms Gobbo from the roll of persons admitted to the legal profession kept by the court. This decision was made with Gobbo’s consent.

This means she will never practice as a lawyer again.

CONCLUSION

It is hard to think of a more serious breach of a lawyer’s duties to their client than informing on them to the police. Nicola Gobbo committed this gross breach of trust on numerous occasions over a course of years. The result was legal pandemonium in Victoria that will take years to be resolved. Public confidence in the administration of justice in Victoria is also likely to have been impacted. For all of these reasons, a striking off order is a logical outcome.

Bourke Street killer James Gargasoulas found guilty

Posted on Categories Criminal law, Terrorism Tags , , , , , 2 Comments on Bourke Street killer James Gargasoulas found guilty

A Victorian Supreme Court jury has found Bourke Street driver James Gargasoulas guilty of murder.  

Gargasoulas

The facts

On 20 January 2017 James Gargasoulas accelerated a car he was driving down a footpath in Bourke Street Melbourne, deliberately targeting pedestrians. He killed 6 people and injured many others during his rampage.

Gargasoulas was suffering from paranoid schizophrenia and drug induced psychosis at the time of the offences.

Relevant law

Section 3 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides:

“offence” includes conduct that would, but for the perpetrator’s mental impairment or unfitness to be tried, have constituted an offence.

Section 20 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides: 

Defence of mental impairment

    (1)     The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that—

        (a)     he or she did not know the nature and quality of the conduct; or

        (b)     he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

    (2)     If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

Victorian Supreme Court trial

At the trial, the jury listened three days of evidence and watched harrowing CCTV footage of the rampage.

Gargasoulas gave evidence about his state of mind at the time of the offences:

“I had a premonition and I followed my instinct to do what I did… I wasn’t intending to kill anyone as I was driving to the city.”

Gargasoulas apologised for his actions but said saying sorry or a lengthy sentence would not “fix what I have done”.

His barrister Dr Theo Alexander started his three minute closing submission with a quote from Hamlet:

“Our wills and fates do so contrary run

That our devices still are overthrown

Our thoughts are ours

their ends none of our own.”

In her closing, Director of Public Prosecutions Kerri Judd QC said it was a clear case of criminal liability:

“There’s no issue of identity, the conduct itself is captured on the CCTV. The CCTV really in this case says it all.”

The jury were sent away this morning at 11.43am to deliberate.

Jury’s decision

In less than an hour, the jury found Gargasoulas guilty of 6 counts of murder and 27 counts of reckless conduct endangering life.

Gargasoulas displayed no emotion as the verdicts were announced while family members of the victims who were in the court wiped their eyes. Later, Gargasoulas appeared to be twitching his leg and rocking slightly in his seat.

Conclusion

The jury’s verdict should not have come as a surprise given there was no dispute that Gargasoulas was the driver of the car and had intended to kill or injure, and a jury had earlier found that he was fit to stand trial.

There is no doubt that Gargasoulas’ mental illness was a cause or contributing factor to the crimes he perpetrated on 20 January 2017. This case shows that even when someone is suffering from a mental illness and/or a drug induced psychosis, they ordinarily still are held criminally responsible for their actions. The legal question for a jury or judge is whether they knew what they were actually doing, or whether they knew that what they were doing was wrong. The jury’s answer to both questions was in the affirmative.

Alleged Bourke Street killer to stand trial

Posted on Categories Criminal law Tags , , , , , , , , 1 Comment on Alleged Bourke Street killer to stand trial

A jury has decided that accused Bourke Street driver James Gargasoulas should stand trial.

Gargasoulas

Relevant law

Section 6 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides: 

When is a person unfit to stand trial?

    (1)     A person is unfit to stand trial for an offence if, because the person’s mental processes are disordered or impaired, the person is or, at some time during the trial, will be—

        (a)     unable to understand the nature of the charge; or

        (b)     unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or

        (c)     unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or

        (d)     unable to follow the course of the trial; or

        (e)     unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or

        (f)     unable to give instructions to his or her legal practitioner.

    (2)     A person is not unfit to stand trial only because he or she is suffering from memory loss.

Jury’s decision

Two psychiatrists and a psychologist gave evidence at a Victorian Supreme Court hearing to determine Gargasoulas’ current mental state and his fitness to stand trial.

All three experts agreed that Gargasoulas was suffering from paranoid schizophrenia and delusions. Forensic psychiatrists Andrew Carroll and Lester Walton opined that Gargasoulas could not enter a plea, give instructions to his lawyers or understand the substantial effect of the evidence. However, Michael Daffern, a psychologist was of the view that Gargasoulas was fit.

The jury determined that Gargasoulas was fit for trial and should face six counts of murder and 28 counts of attempted murder.

© Sterling Law QLD . All Rights Reserved. Copyright 2017-2020 Sterling Law (Qld) Pty Ltd ACN 165 643 881