Shannon Deery: Lack of Lawyer X charges exposes deeper issues

The decision by DPP Kerri Judd, KC, to not endorse charges has created a disturbing political impasse and highlighted a jarring inconsistency.

There is a jarring inconsistency with the Director of Public Prosecutions’ stubborn refusal to endorse charges in the infamous Lawyer X scandal.

As one seasoned legal expert opined this week: “The complete lack of judgment and objectivity down at the OPP gets plainer every week.”

It’s a harsh assessment, but not one that is considered unique among the legal fraternity.

The decision of DPP Kerri Judd, KC, to not endorse charges has created a disturbing political impasse.

So concerned is Special Investigator Geoffrey Nettle, who was appointed in 2021 to investigate the scandal, he has threatened to resign over the inaction.

Special Investigator Geoffrey Nettle was appointed in 2021 to investigate the Lawyer X scandal.

He has spent more than $25m investigating and has formed the judicial view that at least five people should be charged.

Nettle is no slouch.

In an almost 50-year career he worked as a trial and appellate judge in the Victorian Supreme Court before serving on the High Court.

He has also been appointed a Companion of the Order of Australia for eminent service to the judiciary and to the law. There are few greater judicial minds in the land.

The Director of Public Prosecutions has decided not to endorse charges in the Lawyer X scandal.

Judd, however, has refused to endorse charges for misconduct in public office and perverting the course of justice.

She says doubts over supergrass barrister Nicola Gobbo’s potential co-operation with authorities, and the long time between the offences and charges being laid means the prospect of convictions is grim.

Judd should be able to spot the grim prospect of a conviction when she sees one. Last year, convictions as a percentage of all Victorian trial verdicts dropped to their lowest in a decade, just 55 per cent.

In other words, almost half of all matters taken to trial end without convictions.

We have also recorded our lowest number of guilty verdicts as a percentage of case completions in some years.

The Director of Public Prosecutions has raised doubts over supergrass barrister Nicola Gobbo’s potential co-operation with authorities.

At the same time prosecutors have admitted the quality of their work is declining: the workload is increasing, convictions are decreasing.

Under DPP guidelines a prosecution may only proceed if there is a reasonable prospect of a conviction; and a prosecution is in the public interest.

In determining whether there is a reasonable prospect of a conviction, regard must be had to factors including all the admissible evidence, the reliability and credibility of the evidence, the possibility of evidence being excluded and any possible defence.

Essentially, Judd has the unenviable task of playing judge and jury before matters can proceed.

And one must question how closely these guidelines are followed, given our low success rate.

Was it followed in the prosecution of George Pell?

Concerns were raised, even if only privately, about the strength of the case against Pell well before charges were laid.

Briefs of evidence went back and forth between prosecutors and police before Pell was ultimately charged.

Coverage of the infamous Lawyer X affair in 2014.

Lawyer X coverage in 2018.

His legal team privately petitioned the DPP to discontinue the case, outlining gaping holes in the evidence. Each of the 26 offences Pell was charged with were subsequently dropped or dismissed.

What about the matter of tradie Phoenix Cooper, who lost $200,000 in legal fees in clearing his name after being charged with rape.

A central part of the initial claims against him was that he had drugged a woman after meeting her in a bar.

Toxicology tests found that the woman had not been drugged.

He was charged anyway.

Such commitment to the pursuit of justice seems at odds with that which is now not being pursued in relation to the Lawyer X affair.

Conveniently, at least through a political lens, was it pursued in relation to the Red Shirts elections rorts, or the Hotel Quarantine debacle?

Director of Public Prosecutions Kerri Judd has decided not to endorse charges in the Lawyer X scandal. Picture: AAP

It was Victoria that established the nation’s first independent DPP in 1982, to allay concerns of the politicisation of criminal prosecutions. It embedded an independent, nonpartisan prosecuting agency quite separate from the investigative process.

There can be no question about the integrity or quality of the investigation completed by Nettle.

When parliament returns next month the Opposition is likely to introduce a Bill that would give the Office of the Special Investigator prosecutorial powers. Shadow Attorney-General Michael O’Brien says the Bill would give Nettle the power to lay charges without having to seek the permission of the DPP.

Failing that, Judd can still act.

Great legal minds are bound to reach different conclusions when considering such sensitive matters.

But Judd’s High Court history suggests Nettle has the upper hand.

Since her appointment as DPP in 2018 annual reports show she has brought eight matters to the High Court. Four were dismissed.

With a hit rate of 50-50, rolling the dice on Lawyer X might be worth a shot.

Originally published as Shannon Deery: Lack of Lawyer X charges exposes deeper issues