Police deny duty of care to protect Nicola Gobbo, in bid to avoid paying compensation

Victoria Police is claiming it cannot be held responsible in Nicola Gobbo’s long-running compensation lawsuit for failing to protect her identity and safety because she may have committed crimes while acting as a barrister-turned-informer.

The surprise legal tactic comes as Victoria Police is facing two lawsuits from Gobbo and one of her former clients, Faruk Orman, that could cost the state millions of dollars and have sparked a stalled attempt by the state government to halt the cases with a special new law.

Former criminal barrister Nicola Gobbo.

Victoria Police’s attempt to deny it had a duty of care to Gobbo runs contrary to internal police reports, testimony and evidence it provided in the five-year legal battle it ran to suppress Gobbo’s key role as a supergrass and during the Royal Commission into the Management of Police Informants.

A source with knowledge of the case, who cannot speak publicly about confidential legal matters, said Victoria Police – through its legal firm Corrs Chambers Westgarth – has made a last-minute application to alter its defence in the Gobbo lawsuit. The suit was filed more than three years ago.

Gobbo, who has been in hiding since her exposure as Informer 3838, or “Lawyer X”, in late 2018, is seeking millions of dollars in compensation over allegations her life was ruined and her safety put at risk through “negligence” and “malfeasance in public office” by a number of high-profile officers.

The source said Victoria Police was now trying to argue any duty of care owed to Gobbo was invalidated because the barrister may have committed crimes while acting as an agent of police from 2005 to 2009.

During this period, Gobbo informed on dozens of clients and allegedly collaborated with police in manipulating criminal proceedings. Gobbo has never been charged with a crime.

The Age does not suggest Gobbo committed any criminal acts, only that Victoria Police is seeking to use the allegation as a legal tactic.

Victoria Police declined to comment when contacted by The Age. Gobbo’s legal representatives also declined to comment.

Documents and evidence tendered by Victoria Police during its attempts to suppress her identity as an informer and the royal commission contain numerous references to the duty of care Victoria Police claimed it owed Gobbo to protect her safety and keep her working as an operative.

“In my view Victoria Police have a duty of care to Gobbo to ensure she is not exposed and that this duty of care must outweigh the necessity to call her as a witness,” a senior officer wrote to then assistant commissioner Graham Ashton in 2011. “Any subsequent liability regarding the risk created is carried by Victoria Police, not the Commonwealth DPP [Director of Public Prosecutions].”

Ashton, who went on to become police chief commissioner, would later call Gobbo a “glittering prize” who helped the force stop Melbourne’s underworld war.

It remains unclear how Victoria Police will explain how Gobbo allegedly committed criminal acts without simultaneously implicating her “handlers”, investigators and senior police who were responsible for managing her work as an informer and using the information she obtained in cases and prosecutions.

No police officer has been criminally charged or been subjected to disciplinary proceedings.

The Office of the Special Investigator, which was set up after the royal commission to investigate possible criminal offences committed by Gobbo and police, submitted at least two briefs of evidence against officers to state prosecutors.

Director of Public Prosecutions Kerri Judd declined to charge anyone.

However, at least two police detectives have had to receive “certificates against self-incrimination” while providing evidence in appeals against convictions by Gobbo’s clients, because of concerns about possible criminal behaviour in their interactions with Gobbo.

The new Victoria Police tactic comes as the state government’s controversial bill aimed at blocking compensation payments to alleged victims of police misconduct in the Lawyer X scandal has encountered resistance. Intensive negotiations to try to get it through parliament are continuing.

Attorney-General Jaclyn Symes has so far been unable to secure the support of the Greens or cross-bench for the State Civil Liability (Police Informants) Bill 2024 since its introduction more than two weeks ago.

The government has argued that the bill is designed to “limit expending of further resources” on the case. “Enough is enough. It is time to end this dark chapter in our legal history for the benefit of taxpayers,” Symes said when announcing the bill.

The latest legal manoeuvre rejecting any duty of care owed to Gobbo comes as Victoria Police is also fighting a High Court battle to protect the identity of an informer in a high-profile murder case.

Police are allegedly contemplating halting or dropping the murder prosecution to protect the identity of a source in the event the High Court orders the person’s exposure.

“The chief commissioner’s uncontested evidence was that disclosure carried with it a real risk of death – not some lesser form of harm, but death to a person known as HS,” Victoria Police has argued in court documents.

The Age has previously revealed that Victoria Police’s human source program has been crippled by doubts about the effectiveness and safety of its operations in the wake of the Gobbo saga.

The deeply problematic chapter has led to stringent new registration and disclosure protocols that have made it hard to recruit new informers and keep them operating in secret, sources say.

Victoria Police has a history of making novel legal arguments to mitigate its liability in civil lawsuits, including when trying to block compensation payments to officers allegedly injured in the line of duty.

In 2014, Victoria Police argued that injured police were not employees but rather agents of “our Sovereign Lady the Queen”, meaning they had no grounds to sue the state for compensation. The justification was that officers were sworn into service under an oath to the Crown written in 1958.

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