Lawyer X investigator threatens to quit because prosecutors won’t charge police

The former High Court judge tasked with deciding if criminal charges should be laid in the Lawyer X saga has threatened to quit because the public prosecutor will not charge the Victoria Police officers he has collected evidence against.

Special Investigator Geoffrey Nettle tabled an explosive report to parliament on Wednesday, saying it appeared to be a “waste of time and resources” to pursue the Nicola Gobbo matter any further.

Former High Court judge Geoffrey Nettle, left, has tabled an explosive report on the Lawyer X scandal involving Nicola Gobbo.

The Lawyer X scandal is considered one of the darkest chapters in Victoria’s legal history, and one that resulted in the quashing of three criminal convictions. The scandal centred on Gobbo, a former gangland barrister, being used as a police informant.

Nettle said that despite compiling hours of audio and thousands of pages of evidence across multiple operations, he hit a roadblock with the Director of Public Prosecutions, Kerri Judd.

“In light of the director [of public prosecution’s] past refusal of permission for [the Office of the Special Investigator] to file charges of relevant offences, and the director’s recent identification of considerations likely to result in her refusing to permit OSI to file any other charges of relevant offences, I consider that there is no longer any point in OSI persisting with investigating and determining whether there is sufficient evidence to establish the commission of relevant offences,” Nettle wrote in his report.

The former High Court judge said that while it was up to the government and parliament to determine whether to wind up his office, it was clear to him that his assessment of the evidence and the DPP’s approach “stand considerably apart and are unlikely to coalesce”.

“If, therefore, the government or parliament decides that OSI should continue to investigate and analyse evidence of relevant offences, it will cease to be appropriate for me to remain as special investigator. In that event, I shall resign so that someone whose views more closely accord to the director’s position may be appointed in my place.”

The Lawyer X royal commission’s final report recommended that Victoria Police officers be referred to a special investigator to determine if there was sufficient evidence for them to be criminally charged or disciplined.

“The question of whether Ms Gobbo and Victoria Police officers did, in fact, commit criminal offences or misconduct, and the implications of any such conduct for potentially affected persons’ cases, will be matters for investigatory and prosecuting agencies and the courts to determine,” Royal Commissioner Margaret McMurdo said in the final report.

Premier Daniel Andrews said on Wednesday morning he had not yet been briefed on the letter from Nettle.

“People are free to have their views, they’re free to have opinions about the future of their role,” Andrews said.

“What is really clear and important is that we have independent prosecutorial decision-making in this state. It doesn’t mean everybody necessarily agrees with the decisions that the director of the [Office of Public Prosecutions] makes.”

The government is yet to make a decision about the conclusion of the Office of the Special Investigator.

Attorney-General Jaclyn Symes said laying charges was a serious step and needed to be supported by the most robust brief of evidence possible to ensure it holds up in court.

Attorney-General Jaclyn Symes. Credit: Jason South

“That’s why it’s critical that the Office of the Public Prosecutions operates independently of government and statutory bodies like the [Office of the Special] Investigator – to preserve and uphold this high benchmark.”

She said the Office of the Special Investigator had been supported with more than $25 million to do its work.

“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. 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 said the office of the special investigator should have greater powers to bring charges directly.

“There should be no used-by date on corruption or conspiracy to pervert the course of justice,” O’Brien said.

“I’m not casting any aspersion on the DPP … but I think the government would be very, very pleased to see this all swept away.”

Judd said in a letter explaining her decision in May that the police would have a good defence available to them, which is that they were acting in good faith “in an effort to solve and prevent serious criminality”.

“In the face of that ‘good faith’ defence – and notwithstanding the cogent findings of the Royal Commission in relation to the impropriety of choices made by senior members of Victoria Police – it will be difficult to prove ‘wilful misconduct’ beyond reasonable doubt,” she said.

Judd also said any hypothetical trial would likely not be conducted until 15 to 25 years after the events.

“The passage of time will undoubtedly have a significant bearing on the prospects of a conviction,” she said.

In his reply, Nettle expressed his disappointment, saying his officers had “laboured long and hard” over the investigation.

“When I was appointed to the position of Special Investigator, I believed that I knew sufficient of the law properly to discharge the task,” he said.

“The analysis of the law relating to misconduct in public office included in your letter ... implies that you take leave to doubt it.”

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