Lawyer X investigator comes out firing
Kerri Judd’s strong defence over not laying Lawyer X charges fails to convince Geoffrey Nettle. Read his new statement here:
Special investigator Geoffrey Nettle has stood by his concerns over the failure of Victoria’s top prosecutor to lay criminal charges against police and Lawyer X as unprecedented public hostilities between the legal chiefs rage.
In a statement to The Australian, Mr Nettle KC dismissed a strongly worded defence tabled in state parliament by Director of Public Prosecutions Kerri Judd KC to criticisms he raised the previous day in a special report.
“The director’s response does not affect the reasons or conclusions expressed in the special report,’’ Mr Nettle, a former judge of the Victorian Supreme Court and the High Court of Australia, said.
Mr Nettle’s brief but defiant statement followed Ms Judd’s rebuttal on Thursday of his special report in which he expressed serious concerns about her rejection of recommendations that key Lawyer X figures should be charged with misconduct in public office and perverting the course of justice.
In a statement to parliament, Ms Judd said her decisions not to seek to prosecute anyone to date over the scandal on which more than $125m has been expended “should be interpreted as nothing other than the results of careful and realistic assessments of the evidence”.
In relation to one of the cases, Operation Spey, that the Office of the Special Investigator presented a 5000-word brief of evidence on, Ms Judd was particularly scathing, stating: “Paragraph 17 of the special report asserts that this brief consisted of ‘more than five thousand pages of admissible documentary evidence, many hours of audio recordings, and multiple witness statements’.
“This is, with respect, an inaccurate characterisation of the material. Much of this material was irrelevant to any likely facts in issue in the proposed proceeding or, if relevant, would have been inadmissable as a matter of law.”
Ms Judd’s comments come after Mr Nettle tabled a special report on Wednesday, stating that he believed Ms Judd’s reasons for rejecting his recommendations to press charges against multiple individuals at the centre of the scandal involving gangland lawyer turned police informant Nicola Gobbo were “wrong”.
Mr Nettle also threatened to quit, stating he has concluded the chances of the DPP approving any charges he might submit are “now effectively nil”, making it a “waste of time and money” for the $25m office of the special investigator to persist with its work. Victorian Attorney-General Jaclyn Symes met with Mr Nettle on Wednesday as the fate of the OSI hangs in the balance, with cabinet expected to debate the issue on Monday.
Asked whether the government would disband the OSI following Mr Nettle’s claim that it was a “waste of time and money”, Ms Symes said: “I’m not going to preempt a decision that cabinet will consider.”
In her response on Thursday, Ms Judd stated that prosecution was only able to proceed if there was “a reasonable prospect of conviction” and prosecution was “in the public interest”.
She also cited conflicting statements submitted to her by Mr Nettle’s OSI regarding the likelihood that a key figure would plead guilty to perverting the course of justice and testify against the police, stating that she had no confidence the individual would do either.
“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,” Ms Judd said.
“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.”
Ms Judd said the OSI had failed to provide her with a statement from a “crucial potential witness”, a drug cook for gangland kingpin Tony Mokbel codenamed “Fleet”.
She argued evidence Fleet gave to a royal commission would have been inadmissable under the hearsay rule.
The DPP noted that she had told the OSI of her concerns about the prospects of conviction relating to the first case Mr Nettle submitted in December 2021, but indicated further evidence could alleviate those concerns.
“The OSI advised me it would endeavour to obtain that additional material. To date, I have not received further material in relation to that brief of evidence,” Ms Judd wrote.
She also referred to discussions and correspondence with the OSI in May, in relation to another case, known as Operation Charlie, saying she had indicated concerns about the potential brief of evidence.
“In doing so, I noted that the passage of time would undoubtedly have a significant bearing on the prospects of conviction, and was also a matter I would have to take into account in determining whether it was in the public interest to proceed with a prosecution,” Ms Judd wrote.
She said she believed there was a “reasonable prospect that, at the conclusion of a protracted criminal proceeding, some years into the future”, the prosecution was likely to result in a non-custodial sentence.
The DPP said that between October 2021 and December 2022, the OSI had asked her to authorise three different prosecutions.
“On various occasions, I put the special investigator on notice about the need for me to be satisfied that a prosecution was in the public interest,” Ms Judd wrote.
More Coverage
Iranian ambassador faces new scrutiny after calling Israeli strikes a ‘terrorist attack’
The Iranian ambassador to Australia, Ahmad Sadeghi, made the comment despite receiving a formal warning to respect Australian law and to stay out of domestic affairs.
Albanese faces multi-front attack on IR laws
Anthony Albanese is facing multimillion-dollar campaigns run by mining, business, building and industry groups, which attack union-backed IR laws and warn of damaging economic impacts.