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Court in the Act
26 August, 2009  
Map of Tasmania

Political skulduggery … Senior legal appointments derailed … Newspaper leaks … Shredded documents … Unsavoury odours … Rumour … Innuendo … Mayhem … Even though it’s cold, reporter Natalie Buck discovers that Tasmania is surprisingly steamy

imageA snapshot of the festering interplay of Tasmania’s law and politics emerged earlier this month from the eagerly awaited outcome in Tasmania v Johnston.

John (Jack) Johnston (pic) is the stood-aside Tasmanian Police Commissioner who had been charged with disclosing official secrets to the then Premier, Paul (Burst Saveloy) Lennon.

It was alleged that the top copper told the Sav about a police investigation into claims that the solicitor general’s job had been offered to Stephen Estcourt QC if the barrister acted pro bono to defend the former Deputy Premier Bryan Green on corruption charges.

Justice Peter Ethrington Evans found that the discretion assigned to Johnston in his role as the head cop meant he wasn’t under a duty to keep information secret if he thought it appropriate to disclose it.

In permanently staying the charges Evans relived the enthralling Coopergate affair, which among other things put an end to the political career of the Deputy Premier and Attorney General Steve Kons.

Evans’ judgment also skewered the “job-for-favours” allegation involving Estcourt.

* * *

imageThe Johnston case played out against a backdrop of the rather rife and ragged Taswegian rumour mill.

The rumours were fuelled by a famous stat dec to police by Kons’ staffer (now ex) Nigel Burch.

In his statement Burch said that the Burst Sav wanted to appoint Simon Cooper (pic) a magistrate so as to get him out of his job running the state’s resource planning process.

Cooper had made it abundantly clear that the Gunns Pulp & Pollution Mill proposal was critically “deficient”.

Burch claimed he saw a signed Cabinet minute appointing Cooper to the bench, but shortly after Kons came under barking orders from Linda Hornsey at Comrade Lenin’s HQ to call off the appointment because details of it had been leaked to reporter Sue Neales at the Hobart Mercurial.

imageSnap – Hornsey

The aptly named Kons then popped the Cabinet minute in the office mincer.

The ministerial staffer also swore that he had been told by Kons that a deal had been hatched between the Premier, Bryan Green and Stephen Estcourt whereby the silk would get the sol-general’s gig if he acted pro bono for Green at his trial.

Again, this information had been leaked to Neales so the appointment allegedly could not proceed.

The police decided to hold-off looking into Burch’s claims until Green’s trial had finished, in case an investigation prejudiced the outcome.

* * *

imageGreen (snap) was tried and re-tried and each time the jury was unable to reach a verdict.

The DPP announced on March 12, 2008 that he would not be proceeding further against Green on the indictment.

The Deputy Police Commissioner, Darren Hine, then reminded Johnston about getting stuck into the investigation of Burch’s allegations.

These are the key dates.

* July 12, 2007: Burch learned from his minister that an alleged arrangement involving Estcourt’s appointment as SG had been called off.

* September 19, 2007: Green agrees to Estcourt’s fees of $50,000 for defending him at his trial – to be paid by three instalments of $15,000 each and a final payment of $5,000.

* September 20, 2007: Burch signs his stat dec making the allegations involving the purported appointments of Cooper and Estcourt.

* March 3, 2008: Leigh Sealy is appointed solicitor general and around the same time Kons sacked Burch.

* April 5, 2008: allegations about the appointment of Simon Cooper as magistrate popped-up in an article by Neales in the Mercury.

* April 8, 2008: Opposition members in the House of Assembly questioned Kons about the magistrate allegations in the Mercury and the destruction of the signed cabinet minute.

imageKons denied it.

It turns out that Burch (pic) had done some serious sticky-taping during those cold Hobart nights and resurrected the shredded cabinet minute, which Greens MHA Kim Booth then produced with a flourish.

Kons claimed confusion, admitted he’d misled parliament and fell on his sword.

So went Coopergate.

* * *

On April 9, 2008 Johnston prepared a briefing note on the Mercury report for the Police Minister, referring to both the magistrate and sol general allegations, though at that stage the latter had not been reported in the media.

The minister forwarded the briefing note to the Premier.

On the same day Johnston told Premier Lenin about Burch’s solicitor general allegation and that police were launching an investigation.

On April 11, 2008 Johnston met the Bust Sav and explained why the police investigation had been delayed (Green’s trial and the possibility of prejudice).

Within a matter of days the police investigation “turned from an enquiry into Mr Burch’s allegations to an enquiry into whether [Johnston], by making the disclosures that are the subject of the charges, had breached the [Criminal Code Act]”.

* * *

imageThe crown acknowledged that there was “never a deal that Estcourt (pic) would be appointed as the next solicitor general if he acted for free during [Green’s] trial”.

Justice Evans did say that this did not contradict Burch’s allegation to the effect that when he was told of the deal by Kons on July 12, 2007 he was also told that it would not proceed.

Evans found that the Police Commissioner was not under a duty to keep secret the information he disclosed to the Premier.

He held that the statutory “requirement as to confidentiality … is not absolute, but discretionary, in the sense that it calls for an assessment of whether or not the disclosure of information is appropriate”.

The judge thought that it would be “a significant impost [and] rare indeed for a court to recognise a new duty” of secrecy either under statute or the common law, because to do so would have the effect of exposing a public officer to criminal consequences.

On this basis there could be no breach of duty.

Evans found that even if Johnston had owed a duty not to disclose certain information, there was no breach because the disclosure was appropriate in the context of “wide spread and speculative gossip”.

He stated, “it was obvious that Mr Burch was assisting Mr Booth and others to publicise his allegations”.

Evans thought that Burch was probably being “similarly active in disseminating information about the solicitor general allegation” as well.

Evans added that the allegations “had been somewhat diminished by subsequent events” and that “there was no good reason not to put the Premier and the Minister for Police in possession of sufficient information to respond to likely further questions arising from Mr Burch’s allegations”.

He also rejected the proposition that the disclosures were not authorised:

“In the circumstances of the diverse considerations and obligations that may bear on whether information received by a police officer should be disclosed, it is essential that the Commissioner of Police has the authority to make a decision one way or the other about whether particular information may be disclosed.”

* * *

imageSo there it is.

A magisterial appointment derailed … A deal to appoint a solicitor general on the basis of a favour – except there was no favour … A government emitting more than its fair share of unattractive odours …Rumours … Denials … Shredded documents … Ministerial disgrace … A novice Police Commissioner keen to keep his Premier (snap) in the loop.

* * *

Except that it’s not quite over yet.

Johnston is still to face a code of conduct investigation, likely to be conducted by a judge from interstate.

DPP Tim Ellis has till September 2 to lodge an application with the High for special leave.

Johnston will not be reinstated until the DPP’s decision is known.


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