Lawyer X Nicola Gobbo was prepared to plead guilty, give evidence against police

Barrister turned supergrass Nicola Gobbo was planning to plead guilty and give evidence against police under a deal orchestrated by the Lawyer X special investigator, it can be revealed.

A public spat has erupted between former High Court judge Geoffrey Nettle (middle) and Director of Public Prosecutions Kerri Judd (right) over whether Nicola Gobbo (left) can be trusted.

Gangland barrister turned supergrass Nicola Gobbo was planning to plead guilty and give evidence against police under a deal orchestrated by the Lawyer X special investigator to lay charges over the scandal.

But a dispute about whether she could be trusted became a major roadblock between the investigator and the Director of Public Prosecutions, Kerri Judd, and has now erupted in a public spat between the high-ranking legal figures.

Former High Court judge Geoffrey Nettle, who heads the Office of the Special Investigator, has called for the role to be shut down because he cannot get the DPP to lay charges for multiple briefs he has recommended for prosecution.

In a scathing report, he said the chances of Ms Judd laying charges over the Lawyer X saga, which prompted a royal commission, were “effectively nil” despite his efforts to lay charges for misconduct in public office and perverting the course of justice.

Director of Public Prosecutions Kerri Judd, QC, said an unnamed individual was prepared to plead guilty to perverting the course of justice. Picture: Supplied

In a letter released on Thursday, the Director hit back at Justice Nettle’s report and defended her decision not to lay charges so far.

A key sticking point was the use of an unnamed individual who would have been “criminally concerned” but was prepared to plead guilty to perverting the course of justice and give evidence on police members.

This is understood to be Nicola Gobbo and that there were discussions about her being able to serve out her sentence from jail.

She also provided two “can say” statements detailing what she was prepared to allege.

But Ms Judd wrote that it appeared to her Gobbo wanted to be immune from prosecution entirely.

“On the face of two can say statements obtained by the OSI, the individual was seeking an indemnity from prosecution or an undertaking that their evidence not be used against them, as opposed to agreeing to give evidence for the prosecution for the purposes of obtaining a sentencing benefit in a prosecution against them,” she wrote.

“The OSI informed me – and I accept – that it had given the individual no assurances that I would give them an indemnity from prosecution or an undertaking that their evidence not be used against them.

“But given the discrepancy in material provided to me, I had no confidence that the individual would in fact agree to plead guilty and give evidence as contemplated by the OSI.”

This was a key reason in the DPP’s decision not to lay charges over what was dubbed Operation Spey.

Gangland barrister turned supergrass Nicola Gobbo was planning to plead guilty and give evidence against police under a deal orchestrated by the Lawyer X special investigator.

Another major complaint was that a key witness, who was given the pseudonym “Fleet”, may not give evidence and the Director viewed them as crucial to the case.

“Without Fleet’s direct account of the alleged attempt to pervert the course of justice, I considered there was insufficient admissible evidence to prove the offence,” Ms Judd wrote.

“Evidence that Fleet had previously given to the Royal Commission would not have been admissible in subsequent criminal proceedings against the proposed accused, pursuant to the hearsay rule.”

The OSI has also criticised a letter in which she warned him that the long time period between the offending and charges being laid might mean it is not in the public interest to prosecute or might lower the chances of a conviction for a draft brief they had prepared.

Ms Judd responded that she had “some concerns” about the passage of time but disagreed that she had ruled out charges being laid.

“I noted that this was particularly significant if there was a reasonable prospect that, at the conclusion of a protracted criminal proceeding, some years into the future, the ultimate disposition was non-custodial,” she wrote.

“For those reasons, I indicated that I would be grateful to receive a further brief of evidence, if one was to be prepared, as soon as possible.

“At no stage did I rule out the prospect of authorising any future prosecution, and I would consider any further briefs on their merits, having regard to the Director’s policy.”

Premier Daniel Andrews said it was not appropriate for the government to intervene in the matter.

“No one in the Victorian parliament determines who gets charged and with what,” he said.

“It’s the evidence, and a comprehensive brief of evidence, that should be the only factor.

“We do not want a situation where members of parliament, let alone leaders of governments, are out there deciding who gets charged and what they get charged with.

“I’ll make no commentary that would undermine the independence of those independent prosecutorial decision makers.”

Mr Andrews said it was not uncommon for the “best legal minds” to have different views on whether someone should be charged. Picture: Andrew Henshaw

Asked if concerns raised by Mr Nettle were disappointing, Mr Andrews said: “It’s not a matter of being disappointed that people aren’t being charged. It’s perhaps a level of disappointment that there wasn’t sufficient evidence in the judgement of Kerri Judd.”

Mr Andrews said it was not uncommon for the “best legal minds” to have different views on whether someone should be charged or not.

He said Mr Nettle’s resignation threat and concerns raised in an explosive report tabled in parliament this week was a “matter for him”.

“There will always be differences of opinions on these matters. It’s not the first time that the director of the Office of Public Prosecutions has made a decision … to prosecute or not that not everybody has necessarily agreed with,” Mr Andrews said.

“That’s not new at all.

“It’s just not appropriate for us to be interfering with who gets charged with what.”

Mr Andrews said suggestions that changing the powers of the Special Investigator was “laughable”.

“That’s not what the Royal Commission handed up,” he said.

“We have been completely faithful to the recommendations of former Judge McMurdo made.

“The outcome is not pleasing to the person who has done that work but again that’s the nature of these things.”

Shadow Attorney General Michael O’Brien said it was clearly in the public interest for people to be held to accountable for “such a great failure”.

“It’s wholly unsatisfactory, that after a royal commission, after a special investigation and after tens of millions of taxpayers dollars, not a single person has been charged over the greatest legal scandal in Victoria’s history, the Lawyer X scandal,” he said.

“It is not good enough to sweep it under the carpet.”

Mr O’Brien reiterated calls for Mr Nettle to be given power to bring charges himself, noting his decades of experience.

“Geoffrey Nettle has had decades of experience as a trial judge, as an appellate judge in the Victorian Supreme Court and Victorian Court of Appeal and the High Court of Australia. The Director of Public Prosecutions, with respect to her, does not have that level of experience that Justice Nettle has.”

Mr O’Brien said delay should not be used as a reason to not act.

“There’s no statute of limitations on corruption. There’s no statute of limitations on destroying the integrity of our legal system. And I’m very surprised that the DPP would put that up as a reason to not prosecute those responsible,”’he said.

“We’re talking about serious crimes that contributed to the undermining of Victoria’s legal system.

“This is about as serious as it gets.”

Originally published as Lawyer X Nicola Gobbo was prepared to plead guilty, give evidence against police