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Lawyer X special investigator says DPP refuses to lay charges
Lawyer X’s special investigator has told the Victorian government to close down the office or expect his resignation amid frustrations that the state’s Director of Public Prosecutions (DPP)was not prepared to lay criminal charges against key police officers caught up in the scandal.
Naomi Neilson
As a special investigator, former High Court justice Geoffrey Nettle was tasked with examining whether there was sufficient evidence to lay criminal or disciplinary charges against those responsible for using barrister Nicola Gobbo as an informant on her own clients.
In a May 2023 letter attached to the report, Mr Nettle told Ms Judd he believed the chances of her approving any charges was “effectively nil” and it would be a “waste of resources for OSI to persist”.
“Since it now appears to me that the director will not grant OSI permission to file any charge of relevant offence, I consider it to be pointless for OSI to continue,” Mr Nettle said in the report.
While the OSI was established to examine evidence, including from material disclosed to the Royal Commission into the Management of Police Informants (RCMPI), it was not given the power to independently lay charges and had to have the DPP do so on its behalf.
In a meeting earlier this month with Attorney-General Jaclyn Symes, Mr Nettle said he recommended the OSI be wound up.
If the government did not decide to do so, Mr Nettle said he was prepared to resign to “make way for someone whose views as to the weight of the evidence required to warrant prosecution for relevant offences more closely accorded to the director’s position”.
Briefs of evidence rejected by the DPP
Included in the report was an outline of three separate briefs the OSI was working on in the hopes of laying criminal charges.
One brief, known as the “perjury brief”, was submitted to the DPP on 19 November 2021 but was rejected 10 days later because Ms Judd did not believe there were any “prospects of conviction” at that stage.
Ms Judd explained there was a “public interest consideration” she said “weighed against a decision to approve the charge”.
This consideration, Ms Judd added, was the alleged offence was committed in 2017 and was “relatively old”, that it was committed in the context of civil proceedings rather than criminal, and the personal circumstances of the alleged offender made it unlikely a custodial sentence could be secured in a court.
Days later, the alleged offender left the jurisdiction, which Mr Nettle explained made it “pointless to proceed with the brief”.
In January 2022, the OSI identified eight other matters involving possible relevant offences and homed in on one particular matter.
Mr Nettle explained the progress was hampered for nine months by the office’s inability to access unredacted copies of documents from the RCMPI and in overcoming claims of public interest immunity and the application of statutory secrecy provisions.
Once it did, a brief of 5,000 pages of admissible documentary evidence, many hours of audio recordings and multiple witness statements were handed to the DPP in December 2022.
The OSI concluded that hours of audio recordings before and after the alleged offending and thousands of pages recording communications between Victoria Police members had “attested powerfully to the deliberateness, planning and implementation of the alleged offence and the effect of them on the alleged victim”.
In March this year, Ms Judd said a charge sheet should not be filed because four of the five alleged offenders were junior officers who could “conceivably raise a defence that they did not know how to prevent what occurred”. Ms Judd concluded there was no reasonable prospect of securing a conviction against any of the five.
The OSI returned to the eight matters and found three of them run together could “sustain a charge against one senior police officer” of knowingly failing to report, investigate and prosecute offences of attempt to pervert the course of justice.
While there was no alleged immediate victim who may be willing to make a statement, Mr Nettle said the office had concluded “the most important consequence of the alleged offending … was the damage done to the fundamental integrity of the criminal justice system”.
In a May 2023 letter, Ms Judd said it would be difficult to “prove ‘wilful misconduct’ beyond reasonable doubt”.
Although Mr Nettle predicted the brief would not be finalised until 2024, he concluded the letter meant there was little prospect of receiving approval for charges from the DPP’s office.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
