A judge who accused Victoria’s top prosecutor of indifference and a lack of respect has been accused of attempting to peek behind the door of prosecutorial discretion.
Trucking boss Simiona Tutera was charged with manslaughter over the deaths of four Victoria Police officers in the Eastern Freeway crash in April 2020.
Prosecutors dropped those charges in October last year but refused, when asked by Justice Lex Lasry, to give a reason why.
In deciding to permanently stop the prosecution of Mr Tuteru on other charges, Justice Lasry slammed the lack of an explanation.
He said Director of Public Prosecutions Kerri Judd’s decision not to outline reasons showed indifference and a lack of respect.
“In my opinion the court’s processes have been used oppressively and unfairly by the DPP at various stages of this case,” he said.
But in a challenge to that ruling in the Victorian Court of Appeal on Wednesday, it was argued Justice Lasry didn’t have the jurisdiction to press for details on prosecutorial discretion, by Ms Judd or anyone acting on her behalf.
Justice Lasry had grilled then-prosecutor Robyn Harper about the decision, suggesting it was because “the Crown finally realised it didn’t have a case”.
Ms Harper told the judge that she wouldn’t say that was right and she had been instructed not to give an explanation.
“His Honour has effectively taken what the prosecutor said in response to his direct questioning, disregarded it, and proceeded on the exact opposite basis,” Ben Ihle KC, who is now prosecuting the matter, told the appeal judges.
But David Hallowes KC, for Mr Tuteru, challenged that.
He said there was an inference open to Justice Lasry that prosecutors ought to have known there was no reasonable prospect of conviction, and that the case was discontinued in circumstances where there was no public policy reason for doing so.
Justice David Beach said the real vice was the suggestion that prosecutors had known for more than a year before discontinuing the case.
Mr Ihle also noted that in a hearing to have manslaughter charges severed from heavy vehicle charges, Mr Hallowes had noted that the prospect of two separate trials was an oppression Mr Tuteru was “willing to undertake”.
But Mr Hallowes told the appeal justices that remark was made between the devil and the deep blue sea.
“It doesn’t mean that the oppression that then flowed was somehow diminished,” he said.
The judges have reserved their decision.