The ‘Lawyer X’ scandal appears to have become a circus, with the Victorian Director of Public Prosecutions (DPP) announcing no criminal charges will be brought against Victorian Police over what the highest court in the land described as “atrocious” and “reprehensible conduct” which “corrupted” and “debased” the “fundamental premises of the criminal justice system” – all but accusing police of perverting the course of justice.
The decision has heads shaking in Australia’s legal community and means a jury will not be given the opportunity to decide whether the state’s police officers engaged in criminal conduct.
Five-years
For the past five years, the office of the special investigator (OSI) headed by Geoffrey Nettle KC has been investigating the scandal involving Victorian criminal defence lawyer Nicola Gobbo (‘Lawyer X’), who worked both sides of the justice system, defending some of Australia’s most notorious alleged criminals while acting as a registered police informant and informing on them, between 1995 and 2009.
The investigation
The OSI investigation, to ascertain whether Ms Gobbo and any current and former police officers should be prosecuted for any crimes they may have committed was a key recommendation of the 2018 Royal Commission into the Management of Police Informants, which delivered its final report in 2020.
But despite a whopping cost of $125 million ($40 million for the Royal Commission, $25 million for the OSI and $60 million spent by Victorian Police on legal advice) – expenses which have come from the pockets of hardworking taxpayers, justice now seems unlikely.
The Victorian DPP has defended the decision not to pursue criminal prosecution against anyone involved, arguing there was not a reasonable prospect of conviction.
Director of Public Prosecutions, Kerri Judd KC, said in a statement that “in all three prosecutions [proposed by the Office of the Special Investigator], I never reached the stage of having to determine whether it was in the public interest to proceed…. All three prosecutions were refused on the basis that there were not reasonable prospects of conviction.”
May change her mind
In the wake of the public backlash, Ms Judd has qualified her decision by saying she has not ‘ruled out’ the prospect of future prosecutions, telling the media she would “consider any further briefs on their merits”.
There is a Director of Public Prosecutions in each state and territory. They operate under virtually the same guidelines.
In New South Wales, there strict guidelines which make clear what needs to be considered when determining whether a prosecution is in the public interest are as follows:
- Whether the available evidence is capable of establishing the offence.
- Whether there is a reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) that is properly instructed as to the law.
- Whether discretionary factors nevertheless dictate that the matter should or should not proceed.
The discretionary factors that are relevant to point 3 are listed as:
- The seriousness or, conversely, the triviality of the alleged offence or that it is of a “technical” nature only;
- The obsolescence or obscurity of the law;
- whether or not the prosecution would be perceived as counter-productive; for example, by bringing the law into disrepute;
- Any special circumstances that would prevent a fair trial from being conducted;
- Whether or not the alleged offence is of considerable general public concern;
- The necessity to maintain public confidence in such basic institutions as the Parliament and the courts;
- The staleness of the alleged offence;
- The prevalence of the alleged offence and any need for deterrence, both personal and general;
- The availability and efficacy of any alternatives to prosecution;
- Whether or not the alleged offence is triable only on indictment;
- The likely length and expense of a trial;
- Whether or not any resulting conviction would necessarily be regarded as unsafe and unsatisfactory;
- The likely outcome in the event of a finding of guilt, having regard to the sentencing options available to the court;
- Whether or not the proceedings or the consequences of any resulting conviction would be unduly harsh or oppressive;
- The degree of culpability of the alleged offender in connection with the offence;
- Any mitigating or aggravating circumstances;
- The youth, age, maturity, intelligence, physical health, mental health or special disability or infirmity of the alleged offender, a witness or a victim;
- The alleged offender’s antecedents and background, including culture and language ability;
- Whether or not the alleged offender is willing to co-operate in the investigation or prosecution of others, or the extent to which the alleged offender has done so;
- The attitude of a victim or in some cases a material witness to a prosecution;
- Whether or not and in what circumstances it is likely that a confiscation order will be made against the offender’s property;
- Any entitlement or liability of a victim or other person or body to criminal compensation, reparation or forfeiture if prosecution action is taken; and/or
- Whether or not the Attorney General’s or Director’s consent is required to prosecute.
The applicability of and weight to be given to these and other factors will vary widely and depend on the particular circumstances of each case.
What about justice being served?
The Victorian DPP’s decision is incredibly disappointing. In Victoria the head of the OSI, Geoffrey Nettle KC has threatened to quit over the decision not to prosecute, and relations between the OSI and the DPP are now under considerable strain.
But the DPP’s decision is also a disappointment for the Australian public, not just because of all the taxpayer funds spent to get this far, but because the Lawyer X scandal has placed the integrity of the justice system under a dark cloud.
The Royal Commission made 111 recommendations in 2020 after two years of inquiry, to ensure that something like the Lawyer X scandal does not occur again.
In its final report, it placed the lion’s share of responsibility for the scandal firmly at the hands of Victorian Police, and many would prefer to see misconduct of this scale put before the courts, and for justice to be served.
The impact persists
The use of Nicola Gobbo as a police informant tainted approximately 1200 cases, which have had to be reviewed, including where Ms Gobbo was acting as a client’s lawyer, and others where she may have been representing one of their co-accused. As a result of her breaching ‘client privilege’ and her duty to act in the best interests of her clients, many previously convicted criminals may now walk free.
There have already been three quashed convictions, including one for notorious gangland drug kingpin Tony Mokbel.
Faruk Orman who spent 12 years behind bars after being found guilty of being the getaway driver in the murder of Victor Peirce, has walked free after his conviction was quashed and is now suing Nicola Gobbo, who is still in hiding, her whereabouts unknown.
Cases related to the scandal are likely to reverberate through the Victorian Courts for many years to come, while those responsible, will not now, and perhaps ever, be held in any way criminally responsible.
Hopefully this won’t mean that the whole saga will be ‘swept under the carpet’, although, unfortunately, without prosecutions, it could well be.
Sydney Criminal Lawyers
