Call for new powers to lay Lawyer X charges

Radical plan revealed to break unprecedented legal deadlock between Special Investigator and DPP over Lawyer X criminal charges.

Pictured from left; Lawyer X, Nicola Gobbo, former High Court judge Geoffrey Nettle, who is investigating the scandal and Director of Public Prosecutions Kerri Judd. Picture: Supplied

Urgent legislation should be rushed into state parliament to arm Victoria’s Lawyer X special investigator with the power to independently lay criminal charges, a veteran barrister has argued.

Gavin Silbert KC, a former chief crown prosecutor, said boosting the powers of the Office of Special Investigator was the quickest and clearest way to break the impasse.

‘‘Give the OSI the ability to lay its own charges. Absolutely, that’s the way to fix this,’’ the veteran prosecutor said.

Support in the legal community for a legislative fix to the unprecedented stand-off between Special Investigator Geoffrey Nettle and Director of Public Prosecutions Kerri Judd is growing.

The Opposition’s shadow attorney general Michael O’Brien floated the plan earlier this week in the midst of the outbreak of hostilities between the powerful legal figures over the DPP rejecting the OSI’s briefs of evidence against former police officers and Lawyer X, Nicola Gobbo.

Ms Judd informed Mr Nettle there was not sufficient evidence to lay charges and the ‘‘passage of time’’ between the alleged offending and any trial further undermined the prospects of a conviction.

‘‘There’s no doubt from this report that if the OSI had those powers, people would be charged today with serious offences: conspiring to pervert the course of justice, perjury, and potentially a range of other offences,” Mr O’Brien said

In his extraordinary report tabled in parliament on Wednesday, Mr Nettle, a former judge of the Victorian Supreme Court and the High Court of Australia, specifically referred to the OSI’s inability to lay criminal charges.

‘‘Unlike the Independent Broad-based Anti-corruption Commission ... which has the power to bring criminal proceedings for any matter arising out of an IBAC investigation, OSI’s ability to bring criminal proceedings for a relevant offence is subject to constraint,’’ Mr Nettle stated.

‘‘Section 40 ... prohibits the OSI from filing a charge of relevant offence unless the Director of Public Prosecutions first agrees to the charge being filed.’’

Mr Silbert challenged the DPP’s assertion that the ‘‘passage of time’’ would undermine the cases against Lawyer X figures, saying historic cases are regularly prosecuted.

‘‘We are consistently prosecuting sex cases 20 years after the events,’’ he said. ‘‘They do it every day. The passage of time has got nothing to do with whether to prosecute or not.’’

In a statement to The Weekend Australian, the Office of Public Prosecutions said:

‘‘At no stage did the Director decline to authorise a prosecution referred to her by the OSI on the basis that too much time had passed.

‘‘The Director’s assessment was that there were no reasonable prospects of conviction based on the evidence provided by the OSI in support of the proposed charges.

‘‘The passage of time was properly raised with the OSI as a relevant consideration, but it was not determinative.’’

Mr Silbert paid tribute to Mr Nettle, saying he possessed one of the nation’s most brilliant legal minds. ‘‘I would bet on Geoffrey Nettle every day of the week against any barrister in the country,’’ he said.

‘‘These (Lawyer X charges) are cases where you would prosecute, even if it ended up in acquittal,’’ he said. ‘‘At least the system would have been used and operated as it is intended to work.’’