Victoria’s Lawyer X special investigator has threatened to quit because the director of public prosecutions refuses to charge several key figures involved in the scandal, including police officers.
In a report tabled in state parliament on Wednesday, special investigator Geoffrey Nettle called for his office to be disbanded or he would resign, citing frustration with the director of public prosecutions (DPP), Kerri Judd, for refusing to approve criminal charges.
‘‘In light of the director’s past refusal of permission for OSI [office of the special investigator] to file charges of relevant offences … I consider that there is no longer any point in OSI persisting with investigating,” Nettle, a former high court judge, wrote.
The OSI was created after a recommendation by the Lawyer X royal commission to investigate laying criminal charges against those involved in the scheme that saw gangland lawyer Nicola Gobbo recruited by police to inform on her own clients. The OSI was not given the power to prosecute cases itself, instead requiring the office of public prosecutions (OPP) to do so on its behalf.
The use of Gobbo as an informer broke the convention of lawyer-client privilege and resulted in the overturning of three criminal convictions, including against drug kingpin Tony Mokbel.
Nettle said during January 2022 the OSI had identified eight matters that it felt warranted prosecution and compiled a 5,000-page brief of evidence that included “many hours of audio recordings and multiple witness statements”.
“Each of those eight matters concerned multiple suspected offenders in relation to a range of facts traversing a period of more than nine years,” Nettle wrote.
The OSI asked the OPP to file charges of attempting to pervert the course of justice against five identified persons in the brief of evidence, believing it had “established a powerful case of offending”.
But in March 2023 Judd notified the OSI that “she had determined that a charge sheet should not be filed”.
Her justification, according to Nettle, was that “she did not consider that there was a reasonable prospect of conviction” against the five alleged offenders.
Nettle also revealed the OSI had compiled a brief of evidence against one individual over a perjury charge but the OPP had refused to prosecute the case, in part due to the personal circumstances of the alleged offender and the strong chance a non-custodial sentence would be imposed.
The alleged offender went on to leave the jurisdiction, “making it pointless to proceed with the brief”, Nettle wrote.
He said he met with the Victorian attorney general, Jaclyn Symes, on 1 June and told her he considered the chances of the DPP “approving any brief of evidence that OSI might submit were effectively nil”.
“Any further investigation of relevant offences by OSI appeared to me to be a waste of time and resources and that I believed that the appropriate course was to recommend to parliament that OSI be wound up,” the report states.
Nettle said if the government decided the OSI should continue he would resign, “so that someone whose views more closely accord to the director’s position may be appointed in my place”.
In a letter explaining her decision, attached to the report, Judd noted that Gobbo was registered as a police informant in 1995 and that most of the resulting alleged wrongdoing occurred between 1999 and 2009.
“Accordingly, a hypothetical trial would likely proceed some 15-25 years after the event it concerns,” Judd wrote.
“The passage of time will undoubtedly have a significant bearing on the prospects of conviction.”
She also noted police involved would be able to run a defence that “any wrong or improper decisions … were made in good faith in an effort to solve and prevent serious criminality”.
The shadow attorney general, Michael O’Brien, called for the OSI to be given powers to lay charges itself, describing the allegations made by Nettle in his report as “very concerning”.
“These are things that go to the heart of the justice system in this state. If people committed those offences, they should be held accountable for them,” O’Brien said.
In a statement, the OPP said it was considering a response to Nettle’s special report and “will respond in due course”.
Symes said laying charges was a “serious step” and needed to be “supported by the most robust brief of evidence possible to ensure it holds up in court”.
“That’s why it’s critical that the office of the public prosecutions operates independently of government and statutory bodies like the investigator – to preserve and uphold this high benchmark,” she said.
