Is Victorian justice dependent on your politics?

In the wake of ACT’s DPP Shane Drumgold’s public shaming for his handling of the Brittany Higgins rape allegation, Victoria’s DPP, Kerri Judd KC, is mauled for her refusal to lay charges in the (expensive) Lawyer X scandal. GERARD HENDERSON (in The Weekend Australian, July 1, 2023) reveals the troubling background that might explain why. 

In the US there is increasing debate about the emergence of two standards of justice: a soft one for left-of-centre liberals (in the North American sense of the term) who vote for the Democrats and a harsh one for right-of-centre conservatives who vote Republican.

American lawyer Alan Dershowitz is a Democrat who voted against Donald J. Trump in the presidential elections of 2016 and 2020. However, he is concerned that there appears to be one law for high-profile Democrats and another for Republicans.

Meanwhile in Victoria, concern is emerging about a double standard within the Office of Public Prosecutions, which is presided over by Director of Public Prosecutions Kerri Judd KC. Writing in the Herald Sun on June 26, state politics editor Shannon Deery quoted someone whom he described as a seasoned Melbourne legal expert as saying: “The complete lack of judgment and objectivity down at the OPP gets plainer every week.”

The reference was to the refusal of Judd to lay charges against individuals involved in the Lawyer X case. This involved Victoria Police engaging a defence lawyer, Nicola Gobbo, as an informant to provide information about her clients that could lead to convictions in what was called the gangland wars of recent memory.

The engagement of Gobbo to inform on some of her clients to Victoria Police ran counter to the legal principle that everyone is entitled to a fair trial in which it is up to the prosecution to establish its case in a criminal trial beyond reasonable doubt. The actions of Victoria Police in this instance were effectively condemned by the High Court in a unanimous judgment on November 5, 2018.

Writing in these pages on June 22, Victoria editor Damon Johnston reported how Victoria Police spent millions of dollars of taxpayers’ money to prevent Victorians from finding out about the scandal until the High Court’s decision to end the embargo. Johnston was editor of the Herald Sun newspaper at the time. The full story is told in Lawyer X (HarperCollins) by Andrew Dowsley and Patrick Carlyon.

In time, the Labor government in Victoria, led by Daniel Andrews, set up a royal commission to look into the matter. It recommended the establishment of the Office of the Special Investigator to examine whether there was sufficient evidence to prove that offences had been committed by Gobbo and/or by current or former police.

Geoffrey Nettle KC, a former High Court justice, was appointed to this position. Under the legislation covering the OSI, Nettle was prevented from filing a charge concerning alleged offences unless this was agreed by the DPP.

Kerri Judd KC

On June 20, Nettle wrote to the clerks of the Victorian Legislative Council and Legislative Assembly advising that he considered it “pointless” for the OSI to continue and that it should be wound up. He said there was sufficient evidence to lay charges against several individuals.

However, his recommendation had been overruled by Judd. In time, the advice was accepted and the OSI was closed.

And so it came to pass that one of the greatest scandals in Australian criminal law has come to naught. As Johnston wrote, “it’s difficult not to conclude that the cover-up has worked for police”.

arguments “do not improve with repetition”

Nettle is widely regarded as one of the finest legal minds in Australia. Yet his view on the need to lay charges was finally dismissed in condescending correspondence by Judd dated May 26, 2023.

In this letter, the DPP went to the extent of suggesting the OSI might have been proposing what amounted to “an abuse of process” in this instance. This led to an emphatic repudiation by Nettle in correspondence dated May 29, 2023. He told the DPP that the strength of her arguments “do not improve with repetition”.

There is a side history here. Nettle was a member of the High Court, led by Justice Susan Kiefel, which on April 8, 2020, quashed the conviction of Catholic Cardinal George Pell for historical child sexual abuse. Judd appeared for the OPP before the High Court.

To those who watched the hearings or read the transcript, it is evident that Judd could not explain how the alleged offences could have taken place. Then there was the question of performance. Shortly before the judgment was delivered, Melbourne Law School professor Jeremy Gans tweeted that all seven judges “were really on top of the factual details … way more than … Judd”.

There was always a doubt that Pell should have been charged. In the event, Victoria Police laid 26 charges but only five made it to court. The first jury was hung and the second convicted Pell after four days of deliberations. Pell’s legal team filed a notice of discontinuance before the second trial, which was dismissed by Judd without reasons.

The Victorian Court of Appeal divided two to one in a hearing in which the OPP could not explain the prosecution’s case – as even journalist David Marr, a Pell antagonist, conceded. And, likewise, Judd failed to do so before the High Court, where she was criticised by the Chief Justice.

The OPP case had been subjected to devastating criticism by Justice Mark Weinberg’s dissent in the VCA. The High Court reached similar conclusions.

In a letter to Nettle dated March 16, 2023, Judd wrote that there was no reasonable prospect of conviction due to the shortage of evidence. This despite the fact the OSI submission ran for 5000 pages. As Weinberg pointed out in the VCA, there was no evidence whatsoever against Pell apart from the complainant’s allegation.

Writing to Nettle on March 26, 2023, Judd claimed the “passage of time … would have to be taken into account in determining whether it is in the public interest to proceed with a prosecution”. In fact, the passage of time was longer in the Pell case than with respect to the Lawyer X matter.

For his part, Andrews publicly sided with Judd. This stands in contrast with his decision to effectively criticise the High Court’s unanimous decision in George Pell v The Queen.

In the state of Victoria there appears to be a law for Victoria Police and another for the late Pell and some others.

Gerard Henderson is executive director of the Sydney Institute. His Media Watch Dog blog can be found here.



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12 Responses to Is Victorian justice dependent on your politics?

  1. Father Ted Whalensky says:

    Careful what you say about Bananas – 🍌 and the alternative to Trade Unions is Dictatorship – The Labor Party is the Political Arm of the Union Movement – before that we had Privatised Convict Transports – and no vote for women and ordinary folk – Every single social reform has been the from the work of Leftists – The Conservatives have opposed ever single basic wage rise since 1901 !

  2. Father Ted Whalensky says:

    Please inform me – (for my students) – which (if any) cases of Wrongful Conviction or Aquittal the Package of Police – DPP – Media and AGs haven’t been involved ? Wrongful- that is ! And then precisely- precisely how will a CCRC overcome the scurrilous – without being nobbled themselves ? It’s proven easily done .

    • andrew says:

      Police failures were found to be causal or contributing factors in 55% of wrongful convictions, in Griffith University research by Dr Rachel Dioso-Villa. That is the highest of all the factors she found, with erroneous judicial instructions second at 23%.

      The CCRC would not be a court but a referral system, where cases deemed to deserve a review would be sent back to the relevant appeal court.

      • Robert Greenshields says:

        Another interesting news item emerging this evening Andrew, concerning the validity of supposed legitimate writings in another book by another ex Victorian copper.
        The publication has been withdrawn from sale and participation by the claimed ex SOG member is under scrutinisation and being questioned.
        Its been a torrid time for many serving and ex policing officers across Oz of late. I have recently read of a policing type found guilty in court of sex with an under-age female, another of possession of child pornographic material, yet another of supposed physical assault of a woman. Many other incidents in national and local newspapers………..and all of this while the integrity of NSW executive police is under scrutiny due to the perceived flaws in the flows of information following the tasering of an elderly lady at Cooma NSW, and the the ongoing coroners inquiries relevant to the death of a young aboriginal person are questioning the behaviour of NT policing cultures and behaviours.
        Australia is in a shocking state of regression and declining values and morality due to public servants misusing authority, and perceived authority founded leverage for self determined enhancing capacities. How can any citizen honestly have faith or respect for institutions and authorities that are seemingly saturated with venality and culturally induced criminality?
        Let’s hope respected and responsible investigative journalists are hooking into the recently recorded and released information, I imagine there is a good book in among it all, that’s not reliant on imaginative lionising, or even plagiarism to tell the honest truth.

        • Owen allen says:

          Great work Robert. Truth will always come out;
          Charged and Convicted police nation wide are monitored and exposed on probably more than one site. Honourable police must be gutted when one of their own is found to be a fake.

          • Robert Greenshields says:

            Well Owen, like countless millions of others, I sincerely hope that the honest truth will always come out; but given the exposure of policing in house cultures, ie, the closing of ranks to protect the obviously blatant venality and criminality practiced within, I have little faith in the professionalism or impartiality of many/most within the job.
            Newspapers this morning are yet again reporting on two local officers within the New England area being required to front court on assault and tampering with evidence charges. Given discussions I am aware of, and know to be truthful, the words of a past Area Commander, “I have been trying to sort those bastards out there (Gunnedah) for years”, ring loudly and clearly in my memory.
            Australia is in dire straits when it comes to the honesty and integrity of our trusted (wrongfully or rightly) policing forces, and cowardice and compliance to criminal cultures like closing ranks does nothing to enable any advancement from the obviously well practiced and accepted status quo of yesteryears pitiable standards. .

          • Ted says:

            Truth will always come out ! IS that SO ? How many good citizens know that it took 30 years to ADMIT a dog eat the baby – NEVER apologised to Police Victim Michael Chamberlain ? Will the South Australian Justice System EVER admit the truth of their mongrel action in exploiting that Halfwit Manock ? Will any Swine of the Queensland and South Australian
            “Justice System”ever admit the Truth – —-they Murdered Poor Little Ray Bailey – Took 50 years to NOT appologise to Darryl Beamish – How many concerned or interested Australians Know of the method used to nobble the British CCRC ? You don’t think that the maggots will just surrender their Fat Power Rice Bowl ?

      • Father Ted Whalensky says:

        Manock = Flexable Forensics for the dear little Police Brain (not DNA-sorry) Other Scoundrels supply the DNA evidence to the gullible mug jury (and the Citizens thru the stinking political media- our daily paper. We were all informed by our leaders in society – baby blood in Car ! Oh well – say no more – a young ladies baby is easily provably eaten by a dog – Police Brain Thinks -I can get a conviction here ! What about honesty and competency – :uck that shit ! Appology- get stuffed !

        • Geraldine Allan says:

          “If you’re really a mean person you’re going to come back as a fly and eat poop.”
          ― Kurt Cobain

          Hope he knew something …

  3. Father Ted Whalensky says:

    The Good News – Ridsdale and Pell will soon have endless time for a laugh about the Good Old Days in Ballarat – They might prey for the Aquittal of poor Derek Bromley – just as all good Catholics do – Henderson and Abbott certainly have – after all we can’t have the innocent Catholics in prison – can we ?

  4. Father Ted Whalensky says:

    Cardy Pell was a good boy – but couldn’t have committed those Offences – Derek Bromley was a bad boy – but couldn’t have committed those offences – Gerry Henderson will get innocent Derek out – surely ? A good Catholic Lad – done over by the Maniackle Mannock –

  5. John S says:

    Another bent DPP!

    Prisons should be overflowing with bent officials, but how would that ever happen? Which DPP is going to charge themselves!

    Everyone knows how to spell Labor in Vic: CFMEU!

    But nought to do with them here in this case (yet). Maybe Dan should consult them about it! They might even surprise us all and have the DPP sacked! Hooray!

    Perhaps he is now Chairman! May they hang their heads in shame! What sense of justice and fairness at being put on trial could one take from all this? None!!!

    So fellow Victorians: be on notice! You may have to go all the way to the Fed High Court for justice, the Vic system is bent as (like all other States & Territories it seems). Who can afford that? Very few. So don’t get complacent, and try not to get caught! If your luck runs out, contact the Human Rights Commission ASAP , and apply for political asylum in NZ!

    We really are becoming a Banana Republic, Keating was on to something all those years ago! I’m not joking either!

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