By Hugh McSweeny
In the aftermath of the Lawyer X scandal, where barrister Nicola Gobbo’s role as a police informant with Victoria Police unjustly affected multiple convictions, the Victorian government recently passed the State Civil Liability (Police Informants) Act 2024. The legislation was introduced amid Gobbo’s civil case against the State of Victoria, in which she alleges the government negligently used her as an informer [1]. The original bill aimed to limit Victoria’s liability by extinguishing any civil cause of action against the State arising from or in connection with the provision of information from specified human sources, meaning Gobbo. The bill was later amended to allow civil proceedings; however, the “total maximum cumulative amount of damages”[2] was capped at $1 million. This Act unfairly restricts one’s ability to obtain compensation for legal wrongs committed against them during this scandal. Some individuals spent 12 years in prison for the wrongful conduct of Gobbo and the Victorian Police; placing an arbitrary restriction on what would likely be a substantially high award of damages is wrong.
In essence, this approach seemingly indicates this government's willingness to interfere with fundamental individual rights when convenient, with the apparent motivation to mitigate their accountability in this highly corrupt scandal.
Lawyer X: Who is she, and what did she do?
In early 2015, the Victorian Independent Broad-based Anti-corruption Commission (“IBAC”) produced a report that disclosed that “EF,” a criminal defence barrister later revealed to be Nicola Gobbo (“Gobbo”), was a registered “human source” or police informer with the Victorian Police (“VP”) throughout the 2000s. The report revealed that Gobbo acted for accused persons as their counsel while covertly informing the VP against them. These gravely severe breaches of her obligations as a barrister undermined the defences of some individuals, who were later convicted. At the time, the VP was heavily engaged in investigating and responding to Melbourne’s gangland wars, a period marked by serious criminal activity involving many murders and significant drug syndication both within and outside of Australia. The VP actively encouraged Gobbo’s conduct throughout this period, which greatly benefitted the VP, who relied on this information to inform their operations and actions.
The report focused on how Gobbo’s conduct might have unjustly influenced the convictions of seven individuals, including Tony Mokbel, a high-profile drug trafficker, sentenced in 2012 to 30 years’ imprisonment for various serious crimes. Opposing the prospect of disclosure, the VP Chief Commissioner instituted proceedings in the Victorian Supreme Court (“VSC”), seeking a declaration that this information ought not to be disclosed to the affected individuals due to the principle of public interest immunity, particularly the public interest in protecting Gobbo and her children from harm should her identity be disclosed. Both the VSC [3] and the Court of Appeal [4] (“VSCA”) and a unanimous High Court (“HCA”) in AB v CD; EF v CD [2018] HCA 58 [5] decided the public interest in maintaining Gobbo’s anonymity was subordinate to a “more powerful public interest” [6] in favour of disclosing Gobbo’s conduct to the affected individuals to “maintain public confidence in the integrity of the criminal justice system” [7]. Relevantly, the HCA was satisfied that the safety of Gobbo and her children would be adequately protected if they entered a witness protection program [8].
The HCA was scathing of Gobbo and VP, categorically denouncing their roles in actively facilitating and maintaining a highly corrupt operation in which they wilfully, negligently and duplicitously disregarded the many serious legal, ethical, and professional obligations expected of them to the detriment of the justice system and many individuals whose matters and convictions were substantially tainted. The HCA described Gobbo’s actions as an informant as “appalling breaches of [her] obligations as counsel to her clients and…duties to the court” [9], such as the duty to act in the best interests of her clients [10], the duty not to disclose information confidential to her clients [11], and overarching duties to the Court [12] and administration of justice [13]. The HCA denounced the VP as “guilty of reprehensible conduct in knowingly encouraging [Gobbo]” [14], leading to the convictions of those seven individuals being “corrupted” [15] due to the “[debasing of] fundamental premises of the criminal justice system” [16].
This judgment led to the Royal Commission into the Management of Police Informants in 2018, which found that Gobbo’s role as an informer was “extensive and sustained” [17] and may have affected the convictions or findings of guilt of an astounding 1,011 individuals [18]. The Commission also commented on VP’s extensive involvement in this operation, with over 100 personnel privy to her involvement as an informer. Despite ample opportunities, the VP took no steps to investigate the ethical implications of engaging a lawyer or seek legal advice regarding her participation.
Rightfully, the Australian legal community was shocked by this situation [19]. As both informer and barrister, she wrongly held herself out as independent, holding a serious conflict of interest that she did not disclose to her clients. She also obtained evidence improperly that was used to prosecute her clients. If she could not maintain legal professional privilege or confidentiality obligations, she should have ceased acting for the accused persons. That she did not do so fundamentally corrupted the integrity, objectivity, and independence that characterise our criminal justice system's ordinary and proper function.
The Commission made 111 recommendations, including investigating whether to impose disciplinary measures or criminal charges against the VP and Gobbo. Subsequently, the Office of the Special Investigator (“OSI”) was created in 2021, headed by former High Court justice Geoffrey Nettle, to provide recommendations to the VDPP [20]. His investigations resulted in the preparation of at least three prosecutions, involving charges of perjury and perverting the course of justice, understood to be against Gobbo and police personnel. However, Nettle has stated that the VDPP was unwilling and unconvinced by the material due to a perception that there were no reasonable prospects of prosecution. The OSI was subsequently disbanded. As a result, no charges have been laid against Ms Gobbo or any of the police officers and personnel involved.
What convictions were affected?
By acting as an informant against her clients, Gobbo tainted the legitimacy of several convictions against an accused person for whom she acted. In recent years, unsurprisingly, many of Gobbo’s former clients have commenced proceedings to quash their convictions [21]. In Victoria, section 274 of the Criminal Procedure Act 2009 (Vic) establishes a convicted person’s right to appeal, including circumstances where there has been a “substantial miscarriage of justice” [22]. One of Gobbo’s clients who relied on this provision was Faruk Orman [23].
In 2009, Orman was sentenced to 20 years imprisonment and convicted for a 2002 murder, which he maintains he did not commit. Gobbo represented him and was the junior counsel in the trial. Gobbo failed to disclose to Orman and his senior counsel that she previously acted for Mr Thomas, a key prosecution witness. She advised the VP on using Mr Thomas in the trial against Orman and instructed the VP to ensure Mr Thomas did not disclose her involvement. Gobbo concealed evidence about Mr Thomas's reliability, including that he had lied about his whereabouts at the time of the offence. She also advised the prosecution on what evidence might be helpful to obtain to use against Orman.
Following the revelations of how Gobbo’s conduct might have unjustly affected his trial, Orman filed a “petition of mercy” pursuant to section 327 of the Criminal Procedure Act 2009 to appeal his conviction on the basis that Gobbo’s conduct caused a miscarriage of justice. The VSCA set aside his conviction, ordering a judgment of acquittal on the basis of Gobbo’s dishonest dual role, with no re-trial ordered. Orman maintains he did not commit the murder. It is not far-fetched that, had there been no interference, Orman might have been acquitted of this charge in 2009 and had never spent 12 years in jail. It should not be so, but it is a reminder that professional obligations are not “simple niceties of the legal profession” [24] but can clearly have serious consequences. Everyone has the right to a fair trial, no matter the offence. It is also concerning the utter disregard Gobbo and the VP had to so casually play around with Orman’s life, seemingly because it was expedient to their persistent pursuit of controlling Melbourne’s gangland wars.
Since 2019, multiple former clients have, with various levels of success, issued proceedings to set aside convictions or reduce their sentences based on Gobbo’s improper conduct. A central theme linking the claims, brought through various avenues of appeal, is a “substantial miscarriage of justice”, which the High Court [25] has acknowledged is not universally definable but can be marked by criteria including a “serious departure from the prescribed processes of trial” or an error or irregularity in or connected to the trial. Several of the proceedings fit this characterisation, including:
Visser v Director of Public Prosecutions (Cth) [2020] VSCA 327
Mr Visser filed a petition of mercy appeal pursuant to s 327 of the Criminal Procedure Act 2009 on two bases against his convictions of serious drug offences in 2014, one being the alleged improper involvement of Ms Gobbo and Victoria Police. The Court found that their conduct would not have caused his trial to be permanently stayed, notwithstanding that evidence involved in the prosecution was obtained improperly by Ms Gobbo [26]. The Court considered that her involvement was not material, considering the value of the evidence with reference to principles under s138 of the Evidence Act 2008; and
Cvetanovski v The Queen [2020] VSCA 272
Mr Cvetanovski was convicted of serious drug trafficking and sentenced to 10 years imprisonment. His conviction was influenced by Mr Cooper, who gave Crown evidence as a prosecution witness incriminating Mr Cvetanovski. Mr Cooper was, shockingly, paid by Gobbo and Victoria Police in this role [27]. The material impact of Gobbo’s conduct was an evident inability to challenge key evidence and his lack of knowledge of her role as an informer, which led to his acquittal [28].
Notwithstanding that many of those whose convictions were affected entered pleas of guilty, they can rely on the principle enunciated in Peters v The Queen (No 2) (2019) [29]: the appellant must show “proof of an objective circumstance that allows a conclusion that the plea was attributable to that circumstances and not to a consciousness of guilt [30]. Such circumstances might involve specific instances of Gobbo’s conduct while representing them, such as improper advice or pressure placed on them to plead guilty [31].
What is the State Civil Liability (Police Informants) Act 2024?
In 2021, Gobbo filed civil proceedings in the VSC against VP, seeking damages on the basis that they negligently induced her into becoming a police informant while a barrister. In addition, several individuals whose criminal convictions were overturned on appeal following the disclosure of the conduct of VP and Gobbo have now commenced civil proceedings against the State of Victoria, seeking compensatory damages. In response to the potentially significant amount of compensation that might follow from successful actions for compensation, and considering the approximately $200 million spent on the Royal Commission and implementing its recommendations thus far [32], the Victorian government introduced in August 2024 the State Civil Liability (Police Informants) Bill 2024 [33].
The introductory bill sought to limit the civil liability of the state by extinguishing any civil cause of action, prospective and retrospective, against the State of Victoria “arising from or in connection with the provision of information or other assistance to Victoria Police” [34] by a specified human source, which includes Gobbo. This would mean that the government (including current and former members of the VP) who knowingly facilitated this operation would not be held accountable for their wrongdoing. Understandably, this caused significant backlash within the Australian legal community, with the Victorian Bar noting they are “fundamentally opposed” to the bill, highlighting that “individual civil claims that have been instituted against the State in the Victorian Supreme Court are now a key process by which those involved might be held to account.” [35] The bill was later amended to allow civil proceedings but to restrict an individual's compensation on a claim to $1 million [36]. While the Act preserves the right to proceedings, it is nonetheless concerning that damages would be restricted to $1 million.
The government’s reasoning for introducing the bill itself is entirely insufficient. In explaining the bill, the explanatory memorandum notes: “The cost of delivering the Royal Commission and implementing its recommendations has been significant. The State also continues to commit considerable resources toward ongoing legal matters arising from the Royal Commission.” [37] It would appear the “considerable resources” committed refers to the resources expended to draft, amend, and pass this bill. It is ironic that the “resources” committed, which one might reasonably consider would involve an implied benefit directed to improving this situation for those affected, is actually a restriction on the ability of those affected to be awarded damages in the amount they may be entitled to. In addition, the government has justified the legislation by highlighting the benefit it will have in “[protecting] taxpayers from further costs associated with this appalling chapter of police informant misuse” [38], and that “royal commission related expenditure should not burden our community more than necessary” [39]. Evidently, this level of protection does not extend to those individuals who are or might bring causes of action.
The impact of this Act in a civil and political way extends beyond those who it specifically targets. In their rebuke, the Victorian Bar rightly noted that the bill would “set an extremely disturbing precedent for Parliaments that might in future seek to extinguish people’s rights against the State in other areas if it becomes financially or politically expedient to do so” [35]. The financial expedience in the present situation is mitigating the amount of claims and money the government might have to pay to those who successfully bring causes of action. It is politically expedient for the government because controlling the awards of damages minimises the brunt of public scrutiny and indicates the government’s intent to attempt to legislate an escape for complete accountability.
While not minimising Gobbo's role, this operation was not possible without the VP. The VP knew it was walking on unsteady ethical, moral, and legal ground by engaging her for information collection to assist in convicting organised crime figures and that this compromised her legal advice. The VP failed to disclose to accused persons that they might rely on improperly obtained evidence, precluding their ability to challenge its admissibility. The magnitude of this operation, corrupting the process of 1,011 convictions, is unprecedented in Australia.
Even if calculating the specific amount of damages a particular affected person might be entitled to is case-specific, it is not clear that this amount would, with certainty, be below $1 million. Several years ago, Orman unsuccessfully sought $10 million in compensation but is still understood to be pursuing compensation [40]. In recent years, the Western Australian government has compensated two individuals for wrongful murder convictions, with ex-gratia (“out of grace”) payments in the sum of $1.3 million [41] and $1.6 million [42]. Despite the government’s discretion to make ex-gratia payments, their desire to do so in this situation is another question. Regardless, the core issue remains that this government so readily introduced a bill that places a cap on damages, with no justification beyond the political convenience of limiting government liability for serious wrongdoing that has yet gone unpunished and that not passing this bill would negatively impact the taxpayer. It is not wrong for the government to implement methods to mitigate risk or try to be financially responsible, should that be their goal in this instance, but the ends do not justify the means. This is an issue because it represents that to the Victorian government, placing restrictions on rights is justified when convenient. This Act serves the government; it does not serve the people.
Concluding thoughts
The State Civil Liability (Police Informants) Bill 2024 is now the State Civil Liability (Police Informants) Act 2024. Several media commentators have opined that this law will be appealed, given its unique status for an Act of its kind. Acknowledging its unique restrictions, the Victorian Bar wrote, "the Commonwealth Parliament does not have the constitutional power to enact such legislation, and all Victorian citizens should be deeply concerned that their State Parliament might seek to do so” [43]. While some view the Act as a way to stop serious criminals from getting “undeserved millions” [44], this purported benefit may be a short-lived win. As John Silvester recently noted, “Civil rights, when they are taken, rarely return.” [45]
Endnotes
“The statement of claim alleges the state's "high-handed, insulting or reprehensible conduct" caused damage to Ms Gobbo's physical and mental” from Ashleigh Barraclough, ‘Nicola Gobbo seeking damages from Victoria Police for her use as an informer, Supreme Court documents reveal’, ABC News (1 July 2023) <https://www.abc.net.au/news/2023-07-01/nicola-gobbo-seeking-damages-victoria-supreme-court-documents/102549602>
State Civil Liability (Police Informants) Bill 2024, s5
AB & EF v CD [2017] VSC 350, [38] and EF v CD [2017] VSC 351
AB v CD & EF [2017] VSCA 338, [214]
AB v CD; EF v CD [2018] HCA 58; 362 ALR 1
n3, 4
n3, 4
n3, 11
n3, 10
Legal Profession Uniform Conduct (Barristers) Rules 2015, rule 35
n8, rule 114
n8, rule 23
n8, rule 4(a), rule 8(c),
n3, 10
n3, 10
n3, 10
Victoria, Royal Commission into the Management of Police Informants, Report (2018)
n15
Tammy Mills, ‘Lawyer X, Nicola Gobbo, and Informer 3838 explained’, The Age (online, 30 November 2020) <https://www.theage.com.au/national/victoria/the-nicola-gobbo-lawyer-x-scandal-explained-20201124-p56hh9.html>
Tammy Mills, ‘Former High Court judge Geoffrey Nettle appointed Lawyer X investigator’. The Age (30 June 2021). <https://www.theage.com.au/national/victoria/high-court-judge-geoffrey-nettle-appointed-lawyer-x-investigator-20210630-p585hf.html>
As of 2024, the list of convicted persons who have quashed or altered sentences in connection with Gobbo’s conduct during their prosecution include: Faruk Orman (conviction quashed), Zlate Cvetanovksi (quashed), Tony Mokbel (sentence reduced),
Criminal Procedure Act 2009 (Vic) s 276 (b) and s 276 (c)
Orman v The Queen [2019] VSCA 163; 59 VR 511
Jarrad Napier and Raffaele Piccolo, “Conflicting Loyalties: A Miscarriage of Justice? The Case of Lawyer X (2019) Bulletin (Law Society of South Australia)
In Baini v The Queen (2012) 246 CLR 479, the High Court stated that there is no universal definition because of the different ways a miscarriage of justice can occur.
Visser v Director of Public Prosecutions (Cth) [2020] VSCA 327
“In the course of 2006, Ms Gobbo and Victoria Police provided various forms of financial
Cvetanovski v The Queen [2020] VSCA 272
Peters v The Queen (No 2) (2019) 60 VR 231
n27
Kohari v the Queen [2018] VSCA 307
Media Release, ‘Drawing a line under royal commission into police informants spending’, Premier of Victoria, (Melbourne 13 August 2024) https://www.premier.vic.gov.au/drawing-line-under-royal-commission-police-informants-spending
State Civil Liability (Police Informants) Bill 2024, Introduction Print
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Media Release, State Civil Liability (Police Informants) Bill 2024, Vicbar, (Melbourne, 13 August 2024)
State Civil Liability (Police Informants) Bill 2024
Explanatory memorandum, State Civil Liability (Police Informants) Bill 2024
n28
Second Reading Speech, State Civil Liability (Police Informants) Bill 2024
Cameron Houston and Tammy Mills, ‘Police block damages claim for Gobbo client who served 12 years’ jail’, The Age, 4 June 2021, <https://www.theage.com.au/national/victoria/police-block-damages-claim-for-gobbo-client-who-served-12-years-jail-20210603-p57xqz.html#:~:text=Victoria%20Police%20has%20moved%20to,%2Dpolice%2Dinformer%20Nicola%20Gobbo.>
Calla Wahlquist, ‘Indigenous man granted $1.3m compensation for wrongful conviction, The Guardian (18 April 2018) <https://www.theguardian.com/australia-news/2018/apr/18/indigenous-man-granted-13m-compensation-for-wrongful-conviction>
Keane Bourke and Kenneth Ng, “Scott Austic given $1.6 million e gratia payment after Stacey Thorne murder acquittal”, ABC News (17 May 2023) <https://www.abc.net.au/news/2023-05-17/scott-austic-compensation-after-stacey-thorne-murder-acquittal/102357922>
n13
John Silvester, “Lawyer X: Why the Nicola Gobbo saga is like munching on a dead elephant”, The Age (13 August 2024) <https://www.theage.com.au/national/victoria/why-the-gobbo-case-is-like-munching-on-a-dead-elephant-20240811-p5k1g5.html>
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