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Lawyer X scandal fizzles out with no legal repercussions

Those behind the explosive Lawyer X scandal are not likely to face legal consequences as the office responsible for building criminal cases disbanded. Lawyers Weekly takes a look back at the scandal that triggered a royal commission, criminal appeals and an expensive government operation that ultimately failed to take any action.

user iconNaomi Neilson 29 June 2023 Big Law
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The $25 million Office of the Special Investigator (OSI) that was tasked with examining whether there was sufficient evidence to lay criminal or disciplinary charges against members of Victoria Police or criminal-barrister-turned-human-source Nicola Gobbo will be wound up, Victorian Attorney-General Jaclyn Symes confirmed this week.

In a statement to media, Ms Symes said the special investigator, former High Court Justice Geoffrey Nettle, and royal commission implementation monitor Sir David Carruthers recommended winding up the OSI, and this was accepted by the Victorian government.

It comes after Mr Nettle and the Victorian Director of Public Prosecutions (DPP), Kerri Judd, clashed in statements about the prospect of criminal charges.


“Prosecutorial decisions are a matter for the DPP, and it is critical that the Office of the Public Prosecutions operates independently of government and statutory bodies like the OSI,” Ms Symes said.

The decision was slammed by shadow legal affairs spokesperson Michael O’Brien, who labelled the decision as “appalling” and weak.

In his own statement to media, Mr O’Brien said the Labor government had opted to give a “free pass to all those who engaged in what our highest court condemned as ‘reprehensible conduct’”.

“The worst legal scandal in Victorian history will end with a whimper because a weak Labor government does not want to give the OSI the power to authorise charges,” Mr O’Brien added.

“It is perhaps fitting that the scandal which shockingly undermined Victoria’s justice system will remain unpunished because of the insipid weakness of the Andrews government.”

Mr O’Brien said the entire scandal had cost taxpayers “hundreds of millions of dollars”. In addition to the $25 million for the OSI, Mr O’Brien said it included $39.5 million on the Lawyer X royal commission and $60 million on Victoria Police’s legal defence.

This “waste of resources” was identified by Mr Nettle in a statement where he issued an ultimatum: either wound up the OSI or he would step aside to “make way for someone whose views as to the weight of the evidence required to warrant prosecution for relevant offices more closely accorded to the director’s position”.

In the statement, Mr Nettle said the office had prepared at least three briefs he believed included substantial evidence to lay criminal charges against police officers, but all were rejected by Ms Judd.

“Since it now appears to me that the director will not grant OSI permissions to file any charge of relevant offence, I consider it pointless for OSI to continue,” Mr Nettle said in the report.

In response, Ms Judd hit back at Mr Nettle and explained her office knocked back three of the briefs “on the basis there were not reasonable prospects of conviction” for any of the alleged individuals.

“On various occasions, I put the special investigator on notice about the need for me to be satisfied that a prosecution was in the public interest. This was consistent with the director’s policy,” she said.

Mr O’Brien said the opposition had drafted a bill that would give the OSI prosecutorial powers, telling media the special investigator should “have the authority to place charges directly” as opposed to seeking the DPP to do so on its behalf.

Pending the bill, the disbandment of the OSI has put an end to the prospects of criminal charges against key individuals, specifically five police officers, who were involved in the Lawyer X scandal.

The royal commission and the fallout from the scandal

Following 125 hearings, 115,000 documents, and 280 witnesses, the Lawyer X royal commission handed down its final report in December 2020. It detailed the extent of “inexcusable” breaches committed by Ms Gobbo as a police source against her own clients.

Commissioner Margaret McMurdo made a suite of recommendations to prevent a similar scandal from happening in the future. Other than establishing the OSI, this also included disclosure obligations.

“[Ms Gobbo’s] breach of obligations as a lawyer has undermined the administration of justice, compromised criminal convictions, damaged the standing of Victoria Police as well as the profession, and shaken the public trust and confidence in Victoria’s criminal justice system,” Ms McMurdo wrote in one of the 1,000 pages of the final report.

As for Victoria Police, Ms McMurdo said its failures during the scandal and the intention to avoid reputational damage and appeals against convictions “corrupted the criminal justice system”.

Ms McMurdo found Ms Gobbo could not have informed on her clients “without the assistance of the police officers to whom she informed”, and those members “too displayed negative patterns of conduct”.

In his statement, Mr Nettle said one of the briefs included 5,000 pages of admissible documentary evidence, many hours of audio recordings and multiple witness statements that he believed would have secured convictions against one senior police member and four other members who were junior offices at the time.

In his letter, Mr Nettle added Ms Gobbo would be prepared to enter a guilty plea to attempt to pervert the course of justice in exchange for having input into the agreed statement of facts in her own proceedings and a promise from the prosecution that it would advocate for a community corrections order on her behalf.

Ms Judd disputed this in her statement, clarifying that Ms Gobbo was instead seeking indemnity from a possible prosecution “as opposed to giving evidence for the prosecution for the purpose of obtaining a sentencing benefit in the prosecution against them”.

In recommending the OSI, Ms McMurdo did acknowledge it could be a huge task for the DPP as “records may be incomplete, and memories may have faded”. Given Ms Gobbo lives under threat from former clients and police members went on to have successful careers, it would also be difficult to convince her to give evidence.

Ms McMurdo concluded the convictions of 1,011 people might have been affected during the course of Ms Gobbo’s informing, and over 800 of these were referred to Victoria Police with a recommendation they inform them their cases may have been impacted.

As a result of the scandal, gangland figure Tony Mokbel — and a major client Ms Gobbo informed on — appealed his conviction in 2020, and this was quashed. While he remained behind bars for other drug offences, he did convince a Court of Appeal to reduce his 30-year prison term down to a total of 26 years.

In July 2019, gangland getaway driver Faruk Orman was immediately released because of the “substantial miscarriage of justice” committed by Ms Gobbo, who was alleged to have encouraged key witnesses against Mr Orman to talk to police.

Mr Orman, who was jailed for 20 years in 2009 with a minimum of 14 years, was the first to have his conviction overturned.