26th June 2023

Premier, time to pick up the phone. Two quick phone calls will resolve the impasse in determining the gult or innocense of individuals involved in the Lawyer -X affair.

A demonstration of leadership.

The calls will not compromise the independence of either party. All that needs to be done is that advice is given for both parties to cooperate in the best interest of the administration of the Law.

Both parties are eminent legal professionals, so a quiet word from you and everything can move on.

The impasse that has evolved between the Director of Prosecutions (DPP) Kerri Judd KC and former High Court judge Geoffrey Nettle, Special prosecutor (OSI) tasked with investigating whether criminal charges should be made against a number of people in the Lawyer-X affair, does not serve our Legal process well.

The issue is over the authority to prosecute, and in our view, the failure to give the Special Prosecutor power to prosecute was a significant failing.

Although we only have access to public information, we are bemused that the issue between the two legal heavyweights has tended to focus on the offence of Misconduct in Public Office. Undoubtedly, this offence could apply to many of the individuals accused.

We are somewhat mystified why the offence of Conspiracy to pervert the course of Justice has perhaps not been pursued, as it very obviously threaded through the whole artifice and would allow the Courts to properly dispense appropriate Justice depending on the roles of the perpetrators responsible for the entire artifice.

The Lawyer-X scandal has spanned many years at an eye-watering cost to the public purse without resolution, and the Special Prosecutor, a recommendation of the Royal Commission,  was a positive step to bringing the matter to a conclusion, resolved by the Courts, enabling a line to be drawn under the matter.

The community will be outraged at the expenditure without resolution of these matters by a court. Equally, the potential of the guilty walking free without accounting to a Court for what was described as egregious behaviour is unacceptable at any level.

The community is developing an increasingly jaundiced view of the lack of resolution in matters, particularly where corruption by officials of the State is inferred.

Further, without resolution, the deterrent effect, a critical function of the administration of the Law against repetition in the future, is lost, and the sanctity of Client Lawyer privilege is forever diluted and compromised.

There has been a series of Legal issues allowed to drift into the ether without a proper resolution,

• The Red Shirts. Alleged misuse of public monies, which may have involved criminality, that may have unfairly interfered with the electoral process.
• The Quarantine fiasco . Allegedly responsible for the deaths of over eighty Victorians during the COVID pandemic.
• I-Cooks Foods What seems to be a conspiracy by Public Officers to shut down a private business because it competed in a market space the Government moved into.
• Premiers Vehicle crash. Involving a cyclist, many suspicions and contradictions place serious concerns that the truth has not been told, and a cover-up of the facts was embarked upon.
• The non-prosecution of politicians. A number of politicians clearly identified as rorting the system of parliamentary allowances, theft by deception. Officials would not hesitate to prosecute this behaviour if it happened outside of the political sphere.

The pattern is now actual, and the uncertainty created by non-resolution runs the risk of the whole Government being known for cover-ups, irrespective of whether there was one. The confidence of the community can become irreparably damaged.

Additionally, the attorney has very scant knowledge of the Legal system and is embarrassingly exposed as a lightweight on legal matters.

The trashing of legal professional privilege is a critical legal principle, and appropriate penalties must be imposed to reduce the likelihood of it ever happening again.

Ordinarily, we would be recommending that the Attorney General intervene; however, according to reports in the Herald Sun on 24^th June 2023, Jacklyn Symes MP, our Chief Law Officer, Attorney General (AG), said,

“…it would be wildly inappropriate to give the OSI prosecutorial powers.”

“We have an investigative body; it’s not appropriate for an investigative body to then decide they are the prosecutor as well,” she said.”

This claim by the AG is remarkable in its naivety of the legal process and standard practices operating in our legal system.

Disgraceful from our highest Legal officer.

The AG is wrong in her assertions about prosecutions.

There is a proliferation of organisations within the government system that then have ‘wildly inappropriate powers’ as  investigators and prosecutors, including,

Police   –    Local government    –     VicRoads     –      IBAC    –    Health Department    –     Energy, Environment and Climate Change Department, and others, – also including some Government authorities.

The reality is that most prosecutions undertaken on the State’s behalf are made by agencies other than the DPP. The AG’s interpretation is breathtakingly mistaken.

The DDP’s role only becomes evident in matters that may end up in a Court higher than the Magistrates Court. The DPP Act give the DPP responsibility to act as the prosecutor in such matters.

Other than a direct presentment, rarely used, accused persons are subject to a Committal hearing, where a Magistrate rules on whether there is a Prima facie case for the accused to answer, a fail-safe part of our Legal system.

We call on the Premier to exercise leadership and either support the proposed Opposition bill on this issue or make a couple of calls to resolve this tiff between two professionals and allow the legal process to proceed.

It would be criminal of itself not to have this matter proceed and the multimillions of dollars invested in this process wasted.