Gloves off in secret Lawyer X battle between Geoffrey Nettle and Victorian DPP Kerri Judd

An extraordinary letter from a former High Court judge to Victoria’s DPP has exposed the depth of animosity between the powerful legal figures.

An extraordinary letter from Geoffrey Nettle, left, to DPP Kerri Judd KC has exposed the depth of animosity between the powerful legal figures. Picture: Supplied/AAP

The gloves came off just weeks ago in the increasingly tense battle of legal minds that had been playing out in secret for the past 18 months between a former High Court judge and Victoria’s top prosecutor.

An extraordinary letter from Special Investigator Geoffrey Nettle — who served on the High Court for more than five years — to DPP Kerri Judd, KC, has exposed the depth of animosity between the powerful legal figures.

In his letter, sent to the DPP on May 29, Mr Nettle, KC, accuses Ms Judd in unusually blunt terms of questioning his understanding of the criminal law.

‘‘When I was appointed to the position of Special Investigator, I believe that I knew sufficient of the law properly to discharge the task,’’ the former Supreme Court and High Court judge stated.

‘‘The analysis of the law relating to misconduct in public office included in your letter … implies that you take leave to doubt it. That is disappointing as it is displeasing, although of course you are entitled to your opinion.’’

In the May 29 letter, Mr Nettle tells Ms Judd that in his view her decision not to charge former police officers with criminal offences based on OSI briefs of evidence was flawed.

‘‘I set out in brief substance why I considered that your reasons for rejecting the Spey brief of evidence were wrong,’’ he wrote.

‘‘Despite the repetition of your reasons in your letter of 26 May 2023, I remain of the view that they are wrong. As with most other arguments, the strength of yours do not improve with repetition.’’

Mr Nettle’s May 29 letter is responding to Ms Judd’s May 26 letter in which she provides a detailed legal opinion as to why she has been refusing to lay charges on behalf of the OSI.

In summary, Ms Judd’s legal opinion is that the OSI proposal to charge police officers with misconduct in public office would be difficult to prosecute beyond reasonable doubt.

‘‘A particular difficulty is the need to prove that the accused wilfully misconducted themselves,’’ Ms Judd wrote, going on to note that in her view the police could effectively employ a ‘‘good faith’’ defence.

‘‘They (police) may also characterise the litigation the Chief Commissioner of Police commenced to protect Ms Gobbo’s anonymity … as an indication that their employer considered their acts to be not so patently wrong as to doom a public interest immunity claim,’’ she told Mr Nettle.

‘‘The accused may well argue that Victoria Police’s institutional position over the years regarding public interest immunity validated their own subjective perception that their actions did not amount to misconduct.’’

Ms Judd also explains that, in her opinion, the ‘‘passage of time’’ would complicate any prosecution that would be held some ‘‘15-25 years after the events it concerned’’.

‘‘As it stands the passage of time will undoubtedly have a significant bearing on the prospects of conviction,’’ she wrote, also noting that she believed there were ‘‘deficiencies’’.

Ms Judd tells Mr Nettle in the letter that ‘‘witness memories have likely faded over time’’ and questions whether prosecuting the cases would be in the public interest.

The OSI’s special report details a series of investigations codenamed Spey, Leith, Wick, Forth and Charlie. It also refers to a separate operation into a ‘‘perjury brief of evidence’’ from a related civil action in 2017.

The special report revealed that Operation Spey identified eight matters involving multiple suspected offenders over more than nine years.

The Spey brief of evidence ran to more than 5000 pages, audio recordings and multiple witness statement, and there were five potential defendants. But Ms Judd decided not to prosecute.

‘‘I wrote to the Director submitting that her decision to reject the Spey brief was wrong, and setting out the in brief substance why I considered that her reasons for rejecting the brief were untenable,’’ he wrote.

The special report also reveals that Operation Charlie flowed from Leith, Wick and Forth and that the OSI believed there was strong evidence to sustain a prosecution.

‘‘(Charlie) would sustain a charge against at least one senior police officer of misconduct in public office committed by knowingly failing to report, investigate and prosecute offences of attempt to pervert the course of justice,’’ he wrote.

‘‘The most important consequence of the alleged offending in Charlie was the damage thereby done to the fundamental integrity of the criminal justice system, and the suspect (or conceivably suspects) in Charlie was at relevant times a senior police officer with apparent ability to prevent what had occurred.’’

In his three-page May 29 letter, included in a special report to state parliament on Wednesday, Mr Nettle launches a robust defence of the OSI’s professionalism and hard work.

‘‘For the sake of the OSI officers who have thus far laboured long and hard … be aware that the premise of the brief is not as your analysis imagines,’’ he wrote.

‘‘It is rather that the subject, knowing or believing that past Purana convictions may have been secured by attempts to pervert the course of justice, and that the evidence in support of pending prosecutions had likewise been obtained, intentionally refrained from investigating, detecting and prosecuting the persons who had committed those offences, for the sole or dominant purpose of avoiding risk that disclosure would result in past convictions being set aside.’’

In the May 29 letter, Mr Nettle appears to challenge Ms Judd’s view that police could mount a ‘‘good faith’’ defence to any charges.

Mr Nettle notes that she (Ms Judd) believes police could mount a ‘‘good faith’’ defence and that ‘‘what you conceive to be applicable public interest considerations are such that the likelihood of you ever approving any charges that OSI may submit is effectively nil.

‘‘After a great deal of reflection, I have concluded that, given that is so, there is no point in OSI persisting. It is a waste of people’s time and scarce economic resources.’’

In his May 29 letter, Mr Nettle also suggests that their dealings had become in increasingly tense this year. ‘‘I regret that it has taken me until now to comprehend its (Judd’s letter) full significance. To put the matter in appropriate context, however, I should deal first with some points of clarification,’’ he writes.

‘‘To begin with, the references in your letter of 23 May 2023 to your letter of 16 March 2023 suggest you might think that I had forgotten its contents. I had not.’’