Victoria and Lawyer X
12th Jul 2023
There is something deeply troubling about a democracy when its police are able to get away with acting with complete disregard for the rule of law by adopting an ends justifies the means approach.
Yet this is exactly what happened in Victoria recently with the decision by the state’s Director of Public Prosecutions (DPP) Kerri Judd KC to refuse to prosecute cases referred to her by the eminent former High Court judge and special investigator into the Lawyer X scandal, Geoffrey Nettle KC.
To quickly recap. Lawyer X, Nicola Gobbo, became a police informer during the early part of this century as Victoria Police sought to control the so-called gangland wars. A Royal Commission into the Management of Police Informants, headed by former Queensland judge Margaret McMurdo, reported in 2020 and its main finding was staggering: ‘After a rigorous analysis of the evidence, including all relevant submissions, the Commission has concluded that the convictions or findings of guilt of 1,011 people may have been affected by Victoria Police’s use of Ms Gobbo as a human source’. The Commission recommended the appointment of a special investigator to look at possible criminal charges against police and Gobbo. That was the role Mr Nettle held until his office was disbanded last month.
Yet it appears there will be no reckoning for any of those police involved even though the lynchpin of the exercise, Ms Gobbo, has said she would plead guilty to charges. Mr Nettle has been scathing in his criticism of the refusal of Kerri Judd to refuse to prosecute cases he has sent to her since he started work in 2021. The result: his office is being disbanded.
It is hard to think of a more outrageous abuse of power and undermining of the rule of law by a police force across Australia in recent times, or certainly since the exposure of police misconduct in Queensland and New South Wales in the late 1980s and early 1990s. As put by one lawyer, Ruth Parker, who acted for a victim of the Lawyer X scandal freed from prison after his conviction was quashed: ‘the corruption that occurred in our criminal justice system involving at least one criminal lawyer and a number of police is, as far as I know, unprecedented in the Western world’.[i]
Disturbingly some seem to think the Lawyer X scandal is no big deal. John Silvester, a veteran Nine Newspaper journalist who reports on crime wrote an extraordinary column last month in The Age, in which he said:
‘The Royal Commission final report ran to 1000 pages. We prefer to sum it up in 60 words:
There was an underworld war in Victoria. Then there was a taskforce called Purana.
The cops used informers. One was a defence lawyer called Gobbo.
She snitched on crooks. She wasn’t the only one.
The crooks got charged. Most pleaded guilty and went to jail.
No false evidence was presented to any jury.
The underworld war stopped.
Er, the end.’
So in other words, who cares that the rule of law was undermined by Victoria Police officers, because the gangland war stopped.
Premier Daniel Andrews was rightly chided a few days later by Geoffrey Watson SC, who speaks regularly on transparency issues and who said that there would be no accountability for the actions of Victoria Police officers under the Andrews government: ‘not under this DPP, and not while ever the most powerful trade union in Victoria is the Police Association’.[ii]
In response Andrews made the extraordinary claim about Nettle that ‘[i]nvestigators don’t make good prosecutors. There needs to be a separation. If you have investigated the matter, you are altogether too close to it to be making decisions about whether a conviction is likely’.[iii] This statement is absurd and plain wrong. First Nettle is a lawyer of eminent standing who understands what it takes in terms of evidence to determine if a conviction is possible. Secondly, there are equally eminent minds – like Watson, former Victorian judge Stephen Charles KC, top criminal barrister Philip Dunn KC and former senior prosecutor Gavin Silbert KC – who disagree with Judd’s decision.
Note Andrews’ refusal to criticise Victoria Police. He could have said while his government respects the DPP’s decision, the conduct of Victoria Police was appalling and reflected a deeply disturbing mindset on its part in a democracy.
Confidence in the rule of law, in ensuring police act within the law, and that serious wrongdoing by public officials, including police, will be uncovered and punished, is essential in a democracy. There will be serving police and retired police in the state breathing a sigh of relief no doubt, but the loser is the rule of law in Victoria.
This is an edited version of an article first published by Pearls and Irritations
The ALA thanks Greg Barns SC for this contribution.
Greg Barns SC is a barrister and National Criminal Justice Spokesman for the Australian Lawyers Alliance.
The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
[i] C Morgan and T Cosoleto, ‘Derision over ‘cowardly’ Lawyer X investigator decision’, Australian Associated Press (28 June 2023)
[ii] R Willingham et al, ‘Special investigative office probing Lawyer X scandal to be shut down with no charges laid’, ABC News (27 Jun 2023) < https://www.abc.net.au/news/2023-06-27/special-investigative-office-lawyer-x-scandal-to-shut-down/102530866>.
[iii] M Clarke and K Rooney, ‘Lawyer X: Royal Commission special investigator’s office disbanded’, Herald Sun (28 June 2023) < https://www.heraldsun.com.au/news/victoria/lawyer-x-investigators-office-to-be-disbanded/news-story/955a5ed97eb55d9a4350a1af373c4e2f>.