Criminal Law News & Current Affairs
03.07.23
Lawyer X case highlights systemic failures in investigating and prosecuting police misconduct within Australia
For the past 5 years, the Office of the Special Investigator (“the OSI”), lead by Mr Geoffrey Nettle KC, has been investigating the scandal involving Victorian criminal defence lawyer, Ms Nicola Gobbo (known as ‘Lawyer X’).
Ms Gobbo acted as a police informant for over 15 years in the early 2000s. Over this period, Ms Gobbo represented a number of prominent figures in Melbourne’s criminal underground, most infamous of which include Carl Williams and Tony Mokbel, whilst at the same time providing police with information about her clients.
In 2018, the High Court said the use of Ms Gobbo as a police informer “debased fundamental premises of the criminal justice system” and that police conduct in using Ms Gobbo as an informer was “atrocious” and “reprehensible”. In the wake of the High Court case, a royal commission was established (the 2018 Royal Commission into the Management of Police Informants). It found the police use of Ms Gobbo as an informer may have affected the convictions or findings of guilt of more than 1,000 people.
The OSI has been investigating the actions of Ms Gobbo and any current and former police officers involved for any crimes they may have committed during the time she acted as an informant. This investigation was a key recommendation of the royal commission, however, the OPP maintained final say over whether any charges would be pursued.
In January 2022, Mr Nettle KC said 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,” according to Mr Nettle KC.
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, the OPP, Ms Kerri Judd KC, notified the OSI that “she had determined that a charge sheet should not be filed”.
Her justification, according to Mr Nettle KC, was that “she did not consider that there was a reasonable prospect of conviction” against the five alleged offenders.
Mr Nettle KC 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.
On 1 June 2023, Mr Nettle KC met with the Victorian attorney general, Ms Jaclyn Symes, and told her he considered the chances of the OPP “approving any brief of evidence that the OSI might submit were effectively nil”.
The royal commission and resulting investigation by the OSI has reportedly cost tax payers $125 million ($40 million for the Royal Commission, $25 million for the OSI and $60 million spent by Victorian Police on legal advice).
After all that money and time spent on this investigation, Mr Nettle KC has now called for his office to be disbanded or he would resign, citing frustration with the OPP for refusing to approve criminal charges.
“Any further investigation of relevant offences by the 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 the OSI be wound up,” he wrote in a report tabled in state parliament on 21 June 2023.
This case highlights the systemic failures in investigating police misconduct within Australia that seriously needs to be addressed.
According to the royal commission, hundreds of people within Victoria Police knew about Ms Gobbo’s work as an informant. The Independent Broad-based Anti-corruption Commission (“IBAC”) also knew about Ms Gobbo, but decided in 2015 it did not have the jurisdiction to deal with it.
IBAC is responsible for preventing and exposing public sector corruption and police misconduct in Victoria. While the IBAC provides the promise of independent oversight, it is limited by a lack of resources, jurisdiction and investigative powers. In Victoria, like all Australian jurisdictions, police investigate a vast majority of complaints against police, and very few complaints are substantiated.
In fact, IBAC sent this matter back to police to investigate. Unsurprisingly, the police showed little inclination to investigate themselves.
A parliamentary inquiry into IBAC made a raft of recommendations for change in the system of police oversight in 2018, but these have not been implemented.
It seems for now, and in this matter at least, police can continue to engage in, to quote the High Court, “atrocious” and “reprehensible conduct” which is capable of corrupting and debasing the fundamental premises of the criminal justice system without being held accountable or punished.