Lawyer X investigator Geoffrey Nettle threatens to quit, says public prosecutor refusing to charge police

The former High Court judge probing the Lawyer X scandal says his investigation is a “waste of time” as Victoria’s public prosecutor is refusing to charge police.

A former High Court judge investigating the Lawyer X probe has told the government he is wasting his time and will resign if they don’t close down his office.

Geoffrey Nettle was appointed as special investigator by the Andrews government in June 2021 and tasked with investigating whether charges should be laid against police and disgraced gangland barrister Nicola Gobbo over the scandal.

But he has sensationally flagged his resignation amid an ongoing feud with Victoria’s Director of Public Prosecutions, Kerri Judd, who Justice Nettle said had refused to approve the laying of any charges as a result of his work.

He has repeatedly raised concerns with the Ms Judd, and Attorney-General Jaclyn Symes, and has told the government it should close the Office of Special Investigator.

Lawyer X Nicola Gobbo

Former High Court judge Justice Geoffrey Nettle.

Justice Nettle said he had formed the view that the chances of Ms Judd approving any brief of evidence that the OSI might submit were “effectively nil”.

“I advised the Attorney-General that, in those circumstances, any further investigation of relevant offences by OSI appeared to me to be a waste of time and resources and that I believed that the appropriate course was to recommend to parliament that OSI be wound up,” he said in a report tabled in parliament on Wednesday.

“I suggested that OSI cease further investigation and the assessment of evidence, and that the government propose to parliament the legislative amendment necessary for OSI to be wound up.

“I advised that if the government decided to adopt that course, I would remain as Special Investigator for the time it would take to give effect to that decision; alternatively, if the government decided that OSI should continue, I would resign as Special Investigator to make way for someone whose views as to the weight of evidence required to warrant prosecution for relevant offences more closely accorded to the Director’s position.”

The report makes clear Justice Nettle has formed the view charges could be laid, including for offending related to misconduct in public office.

The Office of ­Special Investigator began its work into the Lawyer X scandal in December 2021 and was allocated an initial $13.5m to complete its work.

It was given a further funding boost in the 2022-2023 budget, splitting $3.2m with the Victorian Inspectorate and a further $4.4m as part of last year’s Victorian Economic and Fiscal Update.

The scathing letter says the investigator put forward briefs for at least one person to be charged with perjury, with eight other topics to be probed.

Gobbo (centre) with underworld hit man Andrew `Benji’ Veniamin (left) and gangland boss Carl Williams.

One of these key areas, known as Operation Spey, ran over nine months and recommended five people be charged with attempting to pervert the course of justice.

But the investigator was surprised to find this was knocked back.

“The Spey brief of evidence consisted of more than five thousand pages of admissible documentary evidence, many hours of audio recordings, and multiple witness statements,” he wrote.

“OSI considered that the brief established a powerful case of offending and therefore expected that the director would approve the charges.

“The director stated that she did not consider that there was a reasonable prospect of conviction against any of those five persons.”

In March this year, Justice Nettle wrote to the director to say her decision was wrong and that her reasons for rejecting the brief were “untenable”.

Another three investigations were combined to become a stronger case, known as Operation Charlie.

This included recommending that at least one officer in Victoria Police be charged with misconduct in public office by knowingly failing to report, investigate or prosecute offences that attempted to pervert the course of justice.

Attorney-General Jaclyn Symes says no decision about the OSI’s future has been made. Picture: David Geraghty

This also did not proceed, with the director claiming that four of those police officers facing charges were juniors at the time and could use this as a defence.

A back and forth broke out between the two over whether there was enough evidence to go ahead.

In May, the OSI wrote to Attorney-General Jaclyn Symes to say there appeared to be almost no chance the director’s office would approve charges for Charlie or any other operation.

In light of all these roadblocks, Justice Nettle said it was “no longer realistic to suppose that the director could be persuaded to approve any charge of relevant offence”.

“Since it now appears to me that the Director will not grant OSI permission to file any charge of relevant offence, I consider it to be pointless for OSI to continue.”

Justice Nettle has sat as both a trial and appellate judge in the Victorian Supreme Court and Court of Appeal before serving as a Justice of the High Court of Australia.

Ms Symes said no decision about the OSI’s future had been made.

“The Special Investigator’s role was a vital recommendation of the Royal Commission — to continue examining and gathering the evidence against Victoria Police officers who exploited gaps in our justice system for their own benefit,” she said.

“To lay charges against someone is a serious step and needs to be supported by the most robust brief of evidence possible to ensure it holds up in court. That’s why it’s critical that the Office of the Public Prosecutions operates independently of government and statutory bodies like the Investigator — to preserve and uphold this high benchmark.

Victorian Director of Public Prosecutions Kerri Judd

“We have supported the Office of the Special Investigator (OSI) with more than $25m to undertake its work and significant powers recommended by the Royal Commission similar to those available to Victoria Police. These arrangements made sure that the OSI could undertake its important work whilst still adhering to the way our justice system must work.

“We will continue to ensure the findings of the Royal Commission result in systemic and long-lasting cultural change in our criminal justice system.”

Shadow Attorney-General Michael O’Brien has called on the government to give Lawyer X investigators the power to place their own charges or risk a situation where “no one pays the price” for the scandal.

Under current laws, the Office of the Special Investigator can only recommend charges through briefs to the DPP who then have the power to act on them.

Mr O’Brien said the government now had to introduce laws that gave the OSI the power to lay their own charges.

This would be similar to the Independent Broad-based Anti-corruption Commission.

“The special investigator has said the evidence is there to lay charges,” Mr O’Brien said.

“There’s no doubt from this report that if the OSI had those powers, people would be charged today with serious offences

“It’s inconceivable that after all the scandal of Lawyer X, the perversion of a course of justice and dodgy dealings between a rotten lawyer and crooked cops, no one gets charged.”

The Court of Appeal once said that the Lawyer X saga “might prove to be one of the greatest scandals of our time in relation to the workings of the criminal justice system”.

But Mr O’Brien said it seemed that the Andrews government was content not to intervene.

“Labor seems to be very happy with the idea that a terrible scandal occurred, ‘let’s have a royal commission’ and no one pays a price,” Mr O’Brien said.

“There’s no accountability. We’ve seen this time and time again.

“Terrible things happen .. No one pays the price.”