The fallout from the Lawyer X case in Victoria shows little sign of abating as news hounds gleefully report a deadlock between Victoria’s top prosecutor and a retired high court judge.
At stake is whether charges should be brought against multiple suspected Victorian police officers for perjury and attempting to pervert the course of justice – arising from the recruitment, management and use of Melbourne lawyer Nicola Gobbo to inform on her criminal clients.
It probably seemed like a handy idea at the time – a lawyer with feet in both camps helping the police while defending drug traffickers and murderers. This rewarding dual function surprised the legal profession, whose members had been brought up on the idea that you’re not supposed to rat on your clients.
Unfortunately for police, some of their scalps have now had convictions overturned as a result of their entanglement with Gobbo.
A royal commission was established and at vast cost (about $40m) it reported two years later in November 2020 – recommending, among other things, the creation of a special investigator to look at prospective criminal charges and breaches of police discipline.
Retired high court judge Geoffrey Nettle took up the reins at the Office of the Special Investigator in December 2021 and has been beavering away ever since, at an estimated cost of another $25m.
Now, however, he has done something he was destined to do from birth – he grasped the nettle and advised there’s no point in continuing with his work because the director of public prosecutions (DPP), Kerri Judd, is disinclined to prosecute the targets of his work.
He prepared a special report to the Victorian parliament outlining the briefs that had been prepared for the DPP.
Judd says she is unconvinced the material is sufficient for reasonable prospects of conviction. Further, she had “no confidence” about the reliability of Gobbo as a prosecution witness.
On Thursday Nettle doubled down, telling the Australian that the DPP’s explanations do not “affect the reasons or conclusions expressed in the special report”.
And so it goes. The public would be entitled to think that after four years and $125m poured into investigating and correcting this perversion of the course of justice, and a massive lawyers’ picnic into the bargain, that there would be a few heads on poles.
This disagreement at the top table has been accompanied by an unseemly comparison of lawyerly skills. The shadow Victorian attorney general, Michael O’Brien, declared that Nettle must know what he is talking about more than Judd because, after all, he has reached the highest reaches of the legal food chain, while the DPP “does not have that level of experience”.
A former supreme court judge, Stephen Charles, who is also a leading light in the public integrity campaign, says he is “appalled” that Judd has not acted, adding that it should be left for a jury to decide.
“One of the main purposes of our criminal justice system is to deter crime,” Charles told the Age, thereby opening up the notion that deterrence should be considered by prosecutors, along with reasonable prospects of conviction and the public interest.
A former chief crown prospector Gavin Gilbert was quoted as saying: “Gobbo offered to plead guilty and give evidence now. What more do you need than that?”
Public prosecutors are vested with independence in their role, however there are a few caveats to that. They are answerable to the attorney general for the overall management of their office, and the attorney general is answerable to parliament on criminal justice and the budget of the Office of Public Prosecutions.
Victoria was the first Australian jurisdiction to establish a separate prosecutor by legislation. Yet independence of the office is qualified by various requirements, including that the DPP has to consult with a committee of wise elders when making “special decisions”.
Deep in long forgotten prerogatives, attorneys general still have unused inherent powers to order charges and withdraw charges. Criminal justice is a highly political business and prosecutors are subject to the whims of law and order campaigns.
Independence is to some extent qualified by public expectations about justice.
In New South Wales, the DPP Act gives legislative expression to this prerogative, as the attorney general can exercise the same prosecutorial functions as the DPP and can also issue general directions. So much for the appearance of independence.
Public prosecutors also work hand in glove with the police, who are charged with investigating crimes and marshalling the evidence.
Investigators and prosecutors generally are mutually dependant, so it may not be entirely surprising if prosecutors tread warily when contemplating charges against police officers.
We hasten to add there is no evidence of this in Nettle v Judd.
Sometimes the gloves come off, as we’ve seen with the ACT DPP’s decision to prosecute Bruce Lehrmann for rape, against the resistance of the local constabulary.
It is worth mentioning in passing that Judd is same prosecutor who took the media on with contempt charges after the publication of anodyne front page stories following Cardinal George Pell’s jury conviction on child sex charges, which were later overturned in the high court. Little evidence of hesitation there.
As a prosecutor, Judd has to meet her two threshold requirements when weighing up the charges: a reasonable prospect of conviction, and the public interest.
A “reasonable prospect” is a chancy element, because while a prosecutor may think it’s reasonable, a jury may not.
The public interest is just as important and in some situations more important. The Lawyer X fallout is assuredly in the zone of significant public interest.
Even if the DPP thinks that evidence may not be optimal for conviction, she would nonetheless have a duty to hand this to a jury in a case that goes to the heart of criminal justice and the good old rule of law.
Richard Ackland writes at 500Words.com.au
