Michael McHugh’s advice to the NSW government about the way the NSW DPP and his deputy handled the Patrick Power affair injected a momentary thrill into something that basically had gone nigh-nighs.
The government is on a mission to skewer the DPP, Nicholas Cowdery, and his former deputy, who is now the Liberal member for Epping and the shadow attorney general, Greg Smith.
The issue to be endlessly teased and tortured is that following the discovery by a DPP technician of child pornography on Power’s computer, Smith, with Cowdery’s approval, advised the then deputy senior crown prosecutor that there was evidence he had breached the Crimes Act.
It was only after Power had stood down voluntary from his job as the seventh most senior prosecutor in the state that Smith rang the police.
It was not until about 48 hours later that Power was arrested (July 6) and taken to Surry Hills police station.
The government has a field day, alleging that Power had been tipped off by a mate.
On May 10, shadow attorney general Smith made a personal explanation to parliament defending his actions.
He explained that when he was told what was on the computer he wanted to clarify with Power whether the material formed part of a case he was prosecuting, and if not to get him to stand down because within days he was to conduct a number of important criminal appeals.
On May 29 the government passed a motion censuring Smith over his handling of the Power affair, accusing him of misleading the parliament in his personal explanation.
The government must have felt that it could milk the issue further because the next day (May 30) NSW AG John Hatzistergos asked McHugh for advice on the question:
“If the Director of Public Prosecutions learns that a person employed in his office possesses child pornography, should the director first inform and seek the advice of police officers before informing the person that the pornography has been found.”
The government got the advice it was looking for. “Yes,” said the former High Court judge.
“Once a matter has arisen that requires police investigation, the public interest requires that the director take no steps that might prejudice the investigation. Informing the employee of the finding of the pornographic material has the inherent potential to prejudice the investigation in a number of ways.”
In other words, as soon as the director and deputy director took the view that this was a police matter, then Power (pic) should not have been told about what was discovered on his computer.
“With great respect to the opinion of the director – which of course must be given great weight – I find it difficult to see why it was necessary to remove Dr Power ‘before any police investigation was likely to be conducted’.”
Cowdery was not impressed:
“Needless to say, I accept the wisdom of Mr McHugh’s advice; but without being critical of it or of the author I assert that it is a counsel of perfection, given with the benefit of hindsight 11 months after the event… Where matters of judgment are for evaluation, hindsight can be a distorting factor.”
Cowdery said that for his own part, he had not concluded at that stage that the matter was inevitably one for police investigation.
Further, to the extent that McHugh’s conclusion was based on a belief that both he and Smith had decided that the police would need to investigate, then the advice “proceeds on an erroneous basis”.
However, in the light of McHugh’s examination Cowdery accepted that with the benefit of hindsight his judgment at the time may not have been the best one that might reasonably have been formed. But that doesn’t mean that the judgment he did form was wrong.
Attorney General Hatzistergos told parliament last Thursday (June 21) that even though the circumstances that arose in the DPP’s office on July 4, 2006 were difficult and confronting, “the judgment needed to handle them however was not, in my view, arduous”.