Victoria’s shame: police and justice system ‘broken’

Following the Lawyer X and George Pell debacles, many in the legal fraternity have completely lost faith in Victoria’s criminal justice system.

On Wednesday, well-regarded Melbourne barrister Gavin Silbert KC posted this message on X: “The Victorian criminal justice system is corrupt in the words of the Catholic Archbishop of Sydney (Anthony Fisher OP). This is further evidence of how badly it is broken. Lex Lasry is an honest and hardworking judge of the highest integrity.”

The latter reference is to the decision of Lex Lasry KC to quit his position of reserve judge on the Supreme Court of Victoria last Wednesday, as reported by Damon Johnston in this newspaper. Lasry was appointed to the court by a Labor government in 2007 and remained on the bench until retiring in 2018. However, he continued as a reserve judge and sat on a number of major criminal law cases.

Lasry told the court on Wednesday he had decided to retire after learning from the Judicial Commission of Victoria that a complaint had been made against him by Kerri Judd KC, the Victorian Director of Public Prosecutions.

Lasry made the point that he had continued to undertake the criminal work of the court, all of which involved the DPP as a party, while being unaware Judd had complained about him.

On any analysis, Judd’s complaint put Lasry in an untenable position. Sure, in an earlier case Lasry had criticised a decision about a prosecution made by Judd. But he, in turn, had been overruled by the Victorian Court of Appeal. In the legal system, these things happen – as Lasry understands. But Judd went to the Judicial Commission of Victoria without informing Lasry.

In a subsequent post, Silbert wrote that both Lasry “and Geoff Nettle have been treated appallingly and the ultimate victim is the public”. The reference was to Judd’s refusal to lay charges against individuals, including members of Victoria Police, in what is called the Lawyer X case.

This involved the decision of Victoria Police to engage defence lawyer Nicola Gobbo as an informant with a view to her providing information that could lead to convictions. The actions of Victoria Police were condemned by a unanimous High Court decision.

In time, the Victorian Labor government, then led by Socialist Left premier Daniel Andrews, set up a royal commission to examine the matter. It recommended the establishment of an Office of the Special Investigator to look into the issue. It was headed by retired High Court judge Geoffrey Nettle KC.

After a two-year investigation, Nettle reported that there was sufficient evidence to lay charges against several individuals, including one who was prepared to plead guilty. However, Judd declined to do so and, in a somewhat condescending tone, told Nettle that what he was proposing amounted to “an abuse of process”.

Andrews, who retired from politics on September 26 last year, soon joined in the chorus. Although not possessing any legal qualifications, he told the former High Court judge “if you have investigated a matter you are altogether too close to it to be making decisions about whether a conviction is likely”. This in spite of the fact that several Victorian institutions possess such powers.

And so it came to pass that the OSI was disbanded and no one at Victoria Police has been held accountable for its grossly unprofessional actions, which have discredited the Victorian system of criminal law.

And then there is the case of the late Cardinal George Pell, who was charged by Victoria Police with 26 instances of historical child sexual assault. In his post on February 14, Silbert indicated his agreement with Fisher that the Victorian legal system is corrupt, with special reference to Victoria Police.

Fisher’s comment was reported on The Australian’s front page of January 12 this year by Dennis Shanahan. Shanahan also quoted retired High Court judge Michael Kirby as saying Pell’s conviction was a miscarriage of justice and should lead to “efforts to establish a criminal cases review commission – as in the United Kingdom, New Zealand and Canada”.

In a speech at the Sydney Institute on January 24, priest and lawyer Frank Brennan described the Pell case as “nothing more than an appalling sting operation”. Of the 26 charges laid by Victoria Police, only five made it to court, where they were thrown out by the High Court in a 7-0 single judgment.

Earlier in August 2019, following a jury verdict of guilty in a retrial, Pell’s conviction had been upheld by Victoria’s chief justice and president of its Court of Appeal. But there was a devastating dissent by Justice Mark Weinberg, then the most experienced criminal jurist in Australia. As even Pell antagonist David Marr conceded, the barrister for the DPP could not explain the prosecution’s case.

It was much the same in the High Court. On this occasion, Judd herself led in her role as Victoria’s DPP. It was a poor performance since she struggled on occasions to explain the prosecution’s case to the bench, including the two most senior judges at the time – chief justice Susan Kiefel and Justice Virginia Bell.

Silbert, a former Victorian senior Crown prosecutor, is on record as stating his belief in Pell’s innocence. On February 15, he also posted: “The Hon Geoffrey Nettle, the Hon Justice Lex Lasry. Is there a pattern developing and who is going to stop it?”

The handling by Victorian legal authorities of the Lawyer X and Pell cases, plus the ongoing criticism of the Office of Public Prosecutions, demonstrates the need for an inquiry into the Victorian legal system, focusing, initially, on how Victoria Police behaved so poorly and unprofessionally with respect to both matters.

But such self-examination seems unlikely. In Victoria, Labor has been in office for about 21 out of the past 25 years. And the Liberal Party-led opposition presents as weak and lazy.

It’s all rather sad. When I completed a law course at Melbourne University half a century ago, the Victorian Supreme Court was highly regarded and Victoria Police, after some periods of corruption, was performing well.

And now a prominent Victorian lawyer regards the same legal system as badly broken, even corrupt.