Victoria’s director of public prosecutions has defended her decision not to lay charges over the Lawyer X scandal, saying she had no confidence a key figure involved would plead guilty and testify against police officers.
A letter from Kerri Judd was tabled in parliament on Thursday, a day after the special investigator tasked with building criminal cases against those involved in the scandal, Geoffrey Nettle, attacked her for refusing to approve charges.
Nettle, a former high court judge, called for the office of the special investigator (OSI) to be disbanded or he would resign, arguing any further work would be a “waste of time and resources” given the chances of prosecution was “effectively nil”.
While praising the “diligent efforts of the OSI in these most challenging investigations”, Judd challenged Nettle’s description of a 5,000-page brief of evidence for one investigation, dubbed Operation Spey, that he said “established a powerful case of offending”.
“Much of this material was irrelevant to any likely facts in issue in the proposed proceeding or, if relevant, would have been inadmissible as a matter of law,” Judd said.
She said the OSI’s case relied on an individual involved in the scandal pleading guilty to perverting the course of justice and testifying against police officers. However, she received conflicting statements about what the individual would receive in exchange for their testimony: either a lighter sentence or indemnity from prosecution.
“The OSI informed me – and I accept – that it had given the individual no assurances that I would give them an indemnity from prosecution or an undertaking that their evidence not be used against them,” Judd wrote.
“But given the discrepancy in material provided to me, I had no confidence that the individual would in fact agree to plead guilty and give evidence as contemplated by the OSI.”
She said the brief also did not include a statement from a “crucial potential witness”, given the pseudonym Fleet, who was “the primary victim of the alleged offending” but “uncooperative and potentially not compellable”.
Fleet had given evidence at the Lawyer X royal commission but Judd said this would not be admissible at a criminal trial.
“Without Fleet’s direct account of the alleged attempt to pervert the course of justice, I considered there was insufficient admissible evidence to prove the offence,” Judd wrote.
On a possible charge of perjury against another individual, Judd said she asked for more material on the case on 1 December 2021, and the special investigator said he would try to provide it.
“To date, I have not received further material in relation to that brief of evidence,” she wrote said.
On another investigation, known as Operation Charlie, Judd said the passage of time since the alleged police offence “would undoubtedly have a significant bearing on the prospects of conviction”.
She questioned whether it was in the public interest to pursue the case, which would take years to make its way through the courts and would likely lead to a non-custodial sentence.
The OSI was created after a recommendation by the Lawyer X royal commission to investigate laying criminal charges against those involved. The OSI was not given the power to prosecute cases itself, instead requiring the office of public prosecutions to do so on its behalf.
The use of Nicola 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.
The attorney general, Jaclyn Symes, said even though no charges have been laid against those involved in the scandal, many lessons had been learned as a result.
“Not everybody gets the outcome that perhaps they want but the work has been completed … and the DPP has assessed that these cases would not make it through to successful prosecution in the courts. She’s an expert in her field,” Symes told reporters outside parliament.
The premier, Daniel Andrews, characterised the conflicting reports as “healthy debate” between two of the state’s “best legal minds”.
“That’s not new at all. Debates are not unhealthy and I’m in no way critical of either of those who have to make those difficult judgments.”