From Pell to Gobbo, Kerri Judd faced ‘the familiar drumbeat of difficult decisions’

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For a person who rarely speaks publicly, Victoria’s former director of public prosecutions, Kerri Judd, KC, became a magnet for controversy. I once made a polite request to her office for an interview. The response was polite but a firm no.

The Office of Public Prosecutions was set up more than 40 years ago to avoid controversy − to make sure decisions to prosecute in serious cases were taken out of the hands of individual police and government-appointed officials and given to an independent authority, with the director given the status of a Supreme Court judge.

Former director of public prosecutions, Kerri Judd, KC, has been appointed a Supreme Court judge.Credit: Paul Jeffers

Victoria was the first state to set up an OPP, with the first director, the rock-solid John Phillips, later becoming chief justice of the Supreme Court. Of the Victorian OPP’s eight directors, seven have been elevated to the bench. Judd is the latest.

It took time to decide how to handle cases involving public figures. Was it best to charge and have the evidence tested in open court to show the public the truth, or to treat each case on its merits?

Eventually, it was decided the test was universal: is a successful prosecution more likely than not? No one is above the law, no one should be given preferential treatment, and no one should be treated differently because they have a public profile.

Many years ago, the then Commonwealth DPP, Ian Temby, rejected a brief of evidence against Melbourne businessman Irvin Rockman over cocaine charges because the star witness was someone higher up in the crime chain. Rockman’s high profile could not be a consideration and using the witness was like “using a mackerel to catch a sprat”.

Judd chose to prosecute the late Cardinal George Pell, despite his lawyers petitioning her to abandon the proceedings.Credit: Jason South

One case that Judd faced involving a public figure was that of Cardinal George Pell, who was charged with historical sexual assault. Although he was convicted, the case was dismissed by the High Court. Those who wanted to believe he was guilty applauded Judd, and those who believed he was innocent thought it an abuse of process.

Then there was the decision to reject the advice of special prosecutor and former High Court judge Geoffrey Nettle, who wanted charges laid against some police connected with the decision to use disgraced barrister Nicola Gobbo as an informer.

Nettle resigned from the post and Judd’s decision not to prosecute split the legal fraternity.

When I wrote that it was Judd’s decision to make, one lawyer set aside his cheese platter at the Melbourne Club to send an outraged email, proving he had missed the law lectures on the justice process.

Perhaps on his way to the Titles Office before lunch he should have popped into the Supreme Court to see how the system works.

“This article is the biggest trash I have read all year. Clearly you are not a lawyer. I fully support Geoffrey Nettle,” he opined, apparently unaware criminal cases are not subject to a voting system akin to MasterChef.

When I pointed out it was Judd’s decision, not mine, he coughed on his Stilton before responding: “Geoffrey Nettle was a Supreme and High Court judge who ruled on many criminal law matters as a judge and is universally respected … anyway, I will not be reading any of your opinions in future. I just saw it online and happened to read it. First and last time I will read any of your stuff.”

Judd opted not to charge police over their use of Nicola Gobbo as an informer.Credit: Joe Armao

It shows you that even those who should know better allow passion to trump precedent.

When Judd sent an email to her staff this week to say she was leaving for the Supreme Court, it was clear she was thinking of such cases.

“As director, these challenges have found daily expression in the familiar drumbeat of difficult decisions … which is not to win for winning’s sake, but rather to present every case with scrupulous fairness.

“To recognise when a case carries reasonable prospects of success, and to have the courage to recognise when it does not. To remember where and to whom our overriding duties lie, which is to the law, the courts, and the community we serve.

“And to always bear in mind the utter emptiness of the notion of equal treatment under the law if we fail to treat everyone the same – no matter who they are, what their status, or who they know.”

It is a noble sentiment and one we hope future directors will remember as criticism descends on them in controversial cases where many have opinions and few have the responsibility.

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