“And so it Ends”: Prominent Judge Quits in Open Court after DPP Complaint

The following was published in Lawyerly on 14 February 2024 by Christine Caulfield.

A high-profile criminal judge in Victoria has stunned a courtroom with his announcement from the bench that he would resign after learning of a DPP complaint to the state’s judicial commission over his handling of a case linked to the Eastern Freeway accident that killed four police officers.

Supreme Court Justice Lex Lasry revealed his intention to resign in open court on Wednesday, during a hearing in an unrelated prosecution case. The 75-year-old jurist, who has been a reserve judge in the criminal division since 2018, will step down effective February 23.

“Ladies and gentlemen, I will not be able to continue with any further hearings in this case and will soon be resigning from this court. Since this matter is part heard before me, you are entitled to know why that is occurring,” he said.

Justice Lasry told the courtroom he had received a letter from the Judicial Commission of Victoria on February 5, outlining a complaint made against him by the Solicitor of Public Prosecutions, Abbey Hogan.

The commission confirmed to Lawyerly it had written to Justice Lasry after receiving the complaint, which centred on the judge’s decision to stay an indictment against trucking company supervisor Simiona Tuteru.

Justice Lasry read out portions of the complaint, which said the judge’s comments in court and in a published judgment tossing the Tuteru case “had the tendency to diminish public confidence in the administration of justice in Victoria and diminish the confidence of litigants and the public in general in His Honour’s impartiality and independence”.

“These are allegations I utterly reject,” the judge said Wednesday.

“I note that neither before or since the Director’s complaint was made, no applications were made in any case on her behalf, that I disqualify myself from hearing any of the criminal matters that I have dealt with or are now dealing with, including this case.

“Whilst it is impossible to know what the Judicial Commission’s findings might be, now that I know of the Director’s allegation, it is clear that it is not appropriate for me to continue to preside over any matters involving her as a party, including this matter. Although a reserve judge, I’m a member of the Criminal Division of this court. That is the work I have always done at this court. I am 75 years of age and very close to permanent retirement in any event.

“In all those circumstances, I feel I have no option but to resign from the court.”

Lawyerly has contacted the DPP for comment.

Senior criminal barrister Patrick Tehan KC rose from the Bar table to wish Justice Lasry well. “On behalf of the Victorian Bar and all members of the Bar at the Bar table, we are deeply moved by what Your Honour has just said. Each of us at the Bar table and all members of the Victorian Bar regard Your Honour as an excellent judge of the highest integrity,” Tehan said.

Senior Crown prosecutor Patrick Bourke SC acknowledged the judge’s standing in the state. “Can I indicate that the attempt to measure your contribution to the criminal justice system of this state will be overwhelming,” he said.

Judge accepts criticism ‘without qualification’

Prosecutors initially charged Connect Logistics supervisor Tuteru with four counts of manslaughter for allowing driver Mohinder Singh behind the wheel of a truck, which plowed into four police officers on the Eastern Freeway in Melbourne on April 20, 2020, killing all four.

The DPP alleged Tuteru knew Singh was suffering from fatigue and was unfit to operate a heavy vehicle. The manslaughter charges were later dropped, replaced by an indictment charging Tuteru with offences under the Heavy Vehicle National Law.

Justice Lasry permanently stayed the indictment in March 2023, saying the court’s processes had been used “oppressively and unfairly” by the DPP. The judge found the prosecutor had maintained the manslaughter charges against Tuteru for more than a year when it “must have been known” there was no viable case for manslaughter. He characterised the DPP’s conduct as a “glaring and oppressive misuse of the court process”.

“At some point, the court must draw a line in order to protect its processes from the prospect of ongoing abuse. The manner in which the DPP has proceeded means that the unfairness which would be brought upon the accused now outweighs the substantial public interest of the community in having those who are charged with criminal offences brought to trial,” Justice Lasry said.

The ruling was overturned in August, with the Court of Appeal finding that Justice Lasry did not provide a basis for his view that the manslaughter charges were unviable and made “unsafe assumptions” about the reason for the DPP’s discontinuance of the charges.

“There is an obvious difference between a finding that the Director knowingly instituted and maintained an unviable prosecution in the Supreme Court and a finding that the institution and maintenance of charges by the Director’s office was a bona fide but inept prosecution. To the extent that it is possible to read the ruling as conveying the former, it is necessary to state that there was absolutely no basis for that finding,” the appeal judges said.

In his resignation accouncement, Justice Lasry said he accepted the Court of Appeal’s criticism “without qualification”.

The DPP’s complaint to the judicial watchdog was submitted on May 23, three months before the appeals court’s judgment.

The judicial commission told Lawyerly no findings had been made in relation to the complaint.

“Relevantly, section 16(3) of the Act provides that the commission must dismiss a complaint if the Officer concerned has resigned and is no longer a judicial officer,” a spokesperson for the commission said.

Justice Lasry was appointed to the Supreme Court in 2007. According to Wikipedia, he grew up in Healesville, attended Haileybury College and Monash University, where he graduated with a Bachelor of Laws in 1972.

As a barrister he acted in several headline-grabbing cases, representing Van Tuong Nyugen, who was convicted of drug trafficking in Singapore and executed in 2005; and members of the Bali Nine. While on the bench he presided over numerous high profile cases, including the trial of Matthew Charles Johnson for the murder of gangland killer Carl Williams.

In his spare time the judge plays in a rock band known as the Lex Pistols, but it wasn’t a Pistols song that accompanied his cryptic Tweet the night before his resignation: “And so it ends after 51 years”. That honour went to American jazz musician Mike Stern, whose mournful instrumental ‘Wing and A Prayer’ seemed to say the rest.