Ruling on Ms Gobbo's Application to Be Excused From Giving Evidence

Below is Commissioner McMurdo's response to submissions from Mr Nathwani that Ms Gobbo has provided reasonable excuse for her not attending to give evidence before the Commission.

04/12/19 12.04pm

'Mr Nathwani, on behalf of Ms Gobbo, submitted that she has provided reasonable excuse for her not attending to give evidence before this Royal Commission.  Giving evidence is always stressful for anyone, especially where that person's conduct is central to a highly publicised Royal Commission.  I accept from the medical reports tendered on behalf of Ms Gobbo that she is in poor physical and mental health and is presently prescribed extensive medication for these various conditions. 

I also note that earlier this year the Commission was prepared to accept that Ms Gobbo had at that time demonstrated a reasonable excuse for not appearing before the Commission.

Since then, however, she has had ample time to adjust to her changed circumstances and provide more certainty around her personal life.  The opinion of her treating medical practitioners, whose expertise I accept for the purposes of today's application, suggests at times that she may be so unwell that she cannot give evidence before the Commission.  But, largely for the reasons set out in the written and oral submissions of counsel assisting, I consider those opinions do not sufficiently take into account the fact that the Commission is willing to take her evidence over short periods by telephone to accommodate her medical conditions.  The Commission is also able to control and limit any cross-examination. 

It is true the medical evidence relied upon by Mr Nathwani on behalf of Ms Gobbo is unchallenged but the Commission has no power to order a medical examination of Ms Gobbo, and in any case it would be difficult to do because of security concerns and the circumstances in which Ms Gobbo now finds herself.  Further, the accuracy of those opinions is based upon the accuracy of what Ms Gobbo tells her medical practitioners as to her various symptoms.  And whilst I accept that she is very unwell, I am also cognisant of the fact that in evidence before this Commission she told her handlers of her preparedness to falsely use her medical conditions to mislead the court to improperly obtain an adjournment of a case to suit her own needs.

The medical reports are not all one way. Some suggest that her medical problems may be able to be managed and several speak of her resilience.  After conversing with her, together with her lawyers and the Commission lawyers over many hours on several days earlier this year, despite the medical reports tendered on her behalf and the submissions of her counsel, and given the Commission's preparedness to accommodate her health and personal circumstances by sitting short hours, taking her evidence by telephone and at times reasonably convenient to her, I  am not presently persuaded on the balance of probabilities that she has established a reasonable excuse for failing to comply with the notice to attend. 

What I intend to do is to vary the notice to attend to provide that Ms Gobbo will give evidence by telephone commencing on Wednesday, January 29, 2020.  That will be varied and served by the Commission lawyers shortly. If you have further evidence at that point that her circumstances have changed or deteriorated, you can, of course, provide that material and renew your application.  Any material and related submissions are to be filed by 5.00 pm on 20 January 2020.'

Reviewed 04 December 2019

Posted in: Derek Legal Blog at 08 January 20