State of Tasmania v Johnston [2009] TASSC 60

State of Tasmania v Johnston [2009] TASSC 60 - TASSC 2009 case summary — Zoe

[39]

"On or about April 2007, I recall that the Attorney General, Mr Steve KONS indicated to me that he wanted to merge the Resource Management Planning Appeals Tribunal (RMPAT) and the Resource Planning and Development Commission (RPDC) and that he wanted to have Mr Simon COOPER, who I understand is a lawyer, appointed to oversee both of these areas. However, Mr KONS stated that the Premier, Mr Paul LENNON did not want Mr COOPER involved in the running of these departments and that to avoid this, the Premier wanted him appointed as a Magistrate.

At around this same time, Mr KONS indicated to me that he believed that there had been some suggestion that Mr Stephen ESTCOURT, who is also a lawyer, should be appointed as the next Solicitor General once Mr Bill BALE retired from that position. I believe that this suggestion did not emanate from Mr KONS' department but from the Department of Premier and Cabinet (DPAC).

During August 2007 I recall Mr KONS showed me a Cabinet Minute in the main office area which had been prepared under his hand. My understanding was that the minute had been prepared for Mr KONS by his department at the behest of someone at DPAC. The subject of that minute related to the appointment of Mr Simon COOPER as the next Magistrate.

On being shown that document I saw that he had already signed the minute. ...

Immediately after this Mr KONS received a mobile phone call and returned to his office to take the call. A short time later I saw him go to a shredder that was situated outside Mr KONS' office. He then shredded the same Cabinet Minute. I had a further brief discussion with him about the document and he told me that he had just been speaking with Ms Linda HORNSEY from the Department of Premier and Cabinet. He said that information regarding government appointments had been leaked to Ms Sue NEALS from the Mercury and this is why the Premier did not want the appointment approved. I also recall that Mr KONS told me that he had been in discussions with Mr COOPER and that he had already advised him about his pending appointment.

In July this year, I was driving Mr KONS back from an appointment at Latrobe. As we were driving into the car park underneath the Burnie City Council, Mr KONS received a phone call. I could hear that the voice on the other end of the line was female and Mr KONS said 'yes Linda'. Mr KONS then put his finger up to his lips indicating for me to be quiet. Mr KONS appeared to be listening to the female on the phone and then terminated the call.

He then told me that it was Ms Linda HORNSEY and she said that a deal had been done between the Premier, Bryan GREEN and Mr ESTCOURT. The deal was that Mr ESTCOURT would be appointed as the next Solicitor General if he acted pro bono for Mr GREEN during his trial. He told me that because this information had been leaked to Ms Sue NEALS at the Mercury and that [sic] the deal would not be able to proceed.

Mr KONS then said to me words to the effect that 'If you reveal this you will have to resign or commit suicide'. He was visibly upset and appeared to be shaken by the phone call. ...

The following day, [Friday 13 July 2007] ... I accessed my personal email address, ... and sent myself a message. This message detailed the circumstances of the information that Mr KONS provided me the previous day."

[59]

21 It is of assistance to reflect on what the defendant would have known by the morning of 9 April 2008 about what others would have been aware of referable to the Solicitor-General allegation. On the face of Mr Burch's statutory declaration, by 13 July 2007, the Premier and Linda Hornsey, the Secretary of the Department of Premier and Cabinet, knew that Ms Neals was aware of a deal that had been made about the appointment of the Solicitor-General. So from the time that the defendant first read Mr Burch's statutory declaration, he would have known that if what Mr Burch said was correct, then the Premier and his senior advisor knew that a newspaper reporter knew of the deal, and in result that it was likely that any others involved in that deal were also so aware. He would also have known from both of Inspector Cerritelli's reports of 26 September 2007 on Mr Burch's allegations, that Inspector Cerritelli had said that the information regarding the appointment of public positions appeared to be well known in the media, particularly after recent articles that had been published by Ms Neals. By the morning of 9 April it was clear that a number of people were aware of the substance of Mr Burch's allegations in relation to the magistrate appointment. It had been detailed in Ms Neals' report in the Mercury of 5 April 2008. Mr Hodgman had inquired of Sergeant Shaw as to whether the police were investigating the allegation and the destruction of documents. During the morning of 8 April 2008, members of the parties in opposition in the House of Assembly had spent some time putting questions about that allegation and the destruction of a document, and Mr Booth had produced the document. As the document had previously been in the possession of Mr Burch, it was highly likely that he was the person who had provided it to Mr Booth. It was also likely that since the sacking of Mr Burch on 17 March 2008, he had been providing information in relation to his allegations and the fact that he had made a sworn statement referable to them to Inspector Cerritelli, to opposition members in the House of Assembly, as well as Ms Neals. In these circumstances, it was probable that those who were the subject of Mr Burch's allegations were aware that they were likely to be investigated by police. In result, from the standpoint of the knowledge of those who were the subject of the Solicitor-General allegation, the effect of the disclosures that were thereafter made by the defendant was to confirm the probability that the allegation would be the subject of a police investigation into a certainty.

[72]

28 When the investigation into Mr Burch's allegations was enlivened on 7 April 2008, those involved obtained a secure office space. On 14 April 2008 Commander Colin Little was appointed to lead the investigation. On 31 July 2008, Deputy Commissioner Hine approved an investigation plan for the investigation. Within a matter of days the investigation appears to have turned from an enquiry into Mr Burch's allegations to an enquiry into whether the defendant, by making the disclosures that are the subject of the charges, had breached the Code, s110. On 13 August 2008 he was interviewed about the disclosures. In the course of a lengthy interview, it lasted three hours and 15 minutes, he said that at the time of the disclosures he had been Commissioner of Police for a month and had a raft of things that he needed to do; Mr Burch's allegations were not the most important issue on his plate. He in substance acknowledged that with the benefit of hindsight he would not be being interviewed if he had required that the briefing note that he provided to the Minister not be passed on to the Premier, and if he had not himself spoken to the Premier. As to failing to require that the briefing note not be passed on, he said that he believed that other people understood their obligations. He did not recall providing information to the Premier in relation to the matter on or before 9 April 2008, save insofar as the information that he provided to the Minister had been passed on to the Premier. He recalled the conversation with the Premier that is the subject of count 2. He on many occasions asserted that the substance of Mr Burch's allegations of a deal about the appointment of the Solicitor-General had been widely known and had been the subject of gossip for many months prior to the disclosures that are the subject of the charges. It seems from the questions asked in the interview that, at least to that point, the investigators had not paid much attention to that aspect of the matter. Their focus was on the absence of media reports or questions in Parliament about the alleged deal. As to the briefing note, the defendant said that he had provided it to the Minister openly and transparently; it contained advice that he considered the Minister was entitled to know, which included advice that there was an investigation underway into two matters. He said that as far as he was aware, everybody knew that there were two issues afoot, he did not consider the provision of the information would compromise any investigation or activity, and he did what he considered was right at the time.

[90]

37 For present purposes, the different interpretations given to the term "public officer" in Tasmanian statutes are of no significance. The applicable definition is that contained in the Code, s1, and, as already noted, it is not in dispute that the defendant, as either or both the Commissioner of Police and the Secretary, Department of Police and Emergency Management, was a public officer within the meaning of that definition. Nevertheless, when considering whether he was subject to "a duty to keep secret" the information, it is important not to lose sight of the fact that the Code, s110, only applies to public officers, and the Code retains a definition of "public officer" that harks back to the last century and beyond. Relevantly, it means a person holding any public office, or who discharges any duty in which the public are interested. Unlike the wide meaning that has been given to that term in the other legislation referred to, it does not encompass every person employed in any capacity in the public service of the State. Illustrations of the sort of offices that were considered to be public offices when the Criminal Code was enacted can be found in The Laws of England, vol 23, 1912, par712, and the list at 300 - 304. At that time, the accepted common law definition of a public officer was as stated in Henly v Lyme Corporation [1828] EngR 701; (1828), 5 Bing 91 by Best CJ at 107: "everyone who is appointed to discharge a public duty and receives a compensation in whatever shape, whether from the Crown or otherwise" is a public officer. See The Laws of England (supra), par658, footnotes (a) and (i), Halsbury's Laws of England, 2 ed, vol 26, 1937, par579, footnote (o) and R v Whitaker [1914] 3 KB 1283 at 1296. The definition of a public officer that has been retained in the Code since its enactment reflects this past as do the views expressed by the Privy Council on the standing of a police constable who is a public officer, in Attorney-General for NSW v Perpetual Trustee Company Ltd [1955] HCA 9; (1955) 92 CLR 113, where their Lordships said, at 129:

[96]

41 The decision in Pense v Hemy (supra) is pertinent. The issue before the Full Court in that case was whether a regulation made under the authority of the Commissioner of Police that required a police constable to obtain medical attention for a prisoner imposed on the constable a "duty in his office", a breach of which could amount to a neglect of duty and justify a conviction pursuant to the Police Act 1892 (WA), s19. The court held that the regulation was for disciplinary purposes and did not impose a duty of the nature required for a conviction, and that a duty of the requisite nature on a police constable was to be derived from his office. The decision in Pense v Hemy was referred to in R v Hyman and French [1990] 2 WAR 222. The background to that decision was the prosecution of a police officer and an associate for official corruption in breach of the Code (WA), s82, as it was at that time. Unlike analogous provisions in the Code (Tas), which are confined in their application to a public officer, the Code (WA), s82, applied to any person "employed in the Public Service, or being the holder of public office, and being charged with the performance of any duty by virtue of such employment or office," in respect of anything done or omitted to be done "in the discharge of the duties of his office". The prosecution alleged that the police officer had breached a duty of nondisclosure imposed on him by the Police Regulations (WA), reg607(1), which provided that a member "shall not give any person any information relating to the force or other information that has been furnished to him or obtained by him in the course of his duty". At the outset of the trial counsel for the defendants had submitted to the trial judge that as a matter of law, the police officer was not subject to a duty in his office of the kind required to establish liability under the Code (WA), s82, and relied on Pense v Hemy. That submission was accepted by the trial judge who commented that if the case proceeded, he would have to advise the jury that the prosecution had failed to establish a duty pursuant to s82. The prosecution informed the judge that it would not adduce any evidence on the charge in question and verdicts of acquittal were entered by the jury on the direction of the judge. The prosecution applied to appeal out of time. That application was rejected by the Full Court on the basis that no decision had been made by the trial judge. In the course of his judgment, Brinsden J at 235 - 238 criticised the decision in Pense v Hemy on the basis that it approached the construction of the statute from a pre-conceived notion of the role of a police constable at common law. He concluded at 238 that for the purposes of the Code (WA), s82, a police officer was like any other employee in the Public Service. Appropriate as that criticism may be with reference to that provision, the criticism has no application to the approach to be taken to the construction of the Code (Tas), s110, which patently does not apply to every employee in the public service and is confined in its application to public officers. The Code (Qld), s87, is expressed in similar terms to the Code (WA), s82. It applies to any person employed in the Public Service or being the holder of any public office. The Code (Qld), s87, is the subject of the decision in R v McCann [1998] 2 Qd R 56. In that case Byrne J, agreed with by Davies JA, gave detailed and extensive attention to the meaning of the phrase "holder of any public office" in the Code (Qld), s87(1). (The definition of "public officer" in the Code (Tas), s1, uses the phrase "a person holding any public office"). The approach taken by Byrne J and the conclusion he reached differ markedly from that of Brinsden J in R v Hyman and French. Byrne J concluded that the phrase "holder of any public office" had its ordinary meaning and it was not open to conclude that an employee held public office in circumstances in which no responsibilities pertained to his position. Davies JA held that the essential characteristic of the holder of any public office is that the office exists independently of its holder. Both Byrne J and Davies JA expressed the view that the chapter containing s87 in the Code (Qld) deserved the attention of the legislature. A similar view was expressed by Burt CJ in Cortis v R [1979] WAR 30, at 32 with reference to the Code (WA), s81. Over the years there have been a number of well-reasoned calls for the reform of the law referable to secrecy provisions. See Leo Tsaknis, Commonwealth Secrecy Provisions: Time for Reform?, (1994) 18 Crim LJ 254 at 258 and J McGinness, Secrecy Provisions in Commonwealth Legislation, [1990] 9 FLR 49. Since the abovementioned judicial comments, the Code (WA), s81, has been substantially amended, although no amendment has been made to the Code (Qld), s87. The Code (Tas), s110, remains as it was when enacted in 1924.

[158]

"71 To paraphrase Steyn LJ [Elguzouli-Daf v Commissioner of Police of the Metropolis [1994] EWCA Civ 4; [1995] QB 335] (at 349), the recognition of a duty of care of the kind contended for by the appellant would tend to have an inhibiting effect on the discharge by the police of their central functions of investigating and preventing crime and apprehending offenders. It would in some cases lead to a defensive approach by police to their multifarious duties. It would introduce a risk that police would act so as to protect themselves from claims of negligence. The police would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against them. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of the police would be diverted from concentrating on their prime functions. That would be likely to happen not only during the investigative and preventative processes, and the administrative tasks ancillary thereto, but also when the police are sued in negligence by aggrieved defendants. The police would be constantly enmeshed in an avalanche of civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the police and the quality of the services they provide.

72 In Tahche v Abboud (No 1) [2002] VSC 36, Smith J was concerned with whether police officers owed a duty to the plaintiff to disclose to him, alternatively to the Director of Public Prosecutions, certain information that would have assisted the plaintiff in defending the allegations of criminal conduct that had been made against him. His Honour suggested that a distinction should be drawn 'between those officers who arguably had the responsibility to make decisions about whether to take the review of the plaintiff's conviction further and those officers whose task it was to gather the material and contribute to any discussion of it' (at [69]).

73 With respect to his Honour, I do not think that drawing such a distinction overcomes the policy factors identified in Elguzouli-Daf. Those factors apply irrespective of the particular task individual police officers are required to carry out. Furthermore, there is no bright line between the functions of disclosure and investigation, or between administrative and investigative tasks. Attempts to classify and compartmentalise police functions into one or other of these categories would be likely to generate uncertainty, sophistry and sterile litigation."

[179]

75 A further matter that I have in mind in construing the Police Service Act is that over the years the legislature has evidenced an intent to remove, rather than broaden, the exposure of police to public prosecution in respect of disciplinary breaches. When enacted, the effect of the Police Regulation Act (1898), ss31 and 62, was that, subject to an officer's right to elect to have a charge adjudicated by the Commissioner of Police, a police officer charged with insubordination, misconduct, neglect, or violation of duty, faced a hearing before two or more justices of the peace in the mode then prescribed by the Magistrates Summary Procedure Act 1848. So, subject to that right of election, a police officer charged with a disciplinary offence was dealt with in the same manner as any member of the public charged with a summary offence. Over the years the provisions of the Police Regulation Act as to disciplinary offences were amended, with the result that a breach was dealt with by the Commissioner of Police unless the alleged offender elected to have it dealt with by a magistrate, see ss29A and 29B. The Police Service Act 2003 which repealed the Police Regulation Act has removed the potential ignominy of a police officer going before a court to answer to a disciplinary offence. Pursuant to that Act, ss43 and 47, a disciplinary offence is dealt with by the Commissioner of Police, and the officer has a right to apply to the Police Review Board for a review of the Commissioner's decision, s65(1). Insofar as it might be suggested that there is some ambiguity or obscurity about the constructions of the provisions referable to the code of conduct in the Police Service Act and my conclusion that they are intended to remove the ignominy of a police officer going before a court to answer for conduct that amounts to a disciplinary breach, it is appropriate, pursuant to the Acts Interpretation Act, s8B, to look for any assistance that may be found in the speech of Mr Llewellyn MHA, the then Minister for Police and Public Safety, when he moved that the Bill which became the Police Service Act 2003, be read a second time. He said as to Pt3 of the Bill which includes the code of conduct:

[187]

78 The decision in Zierk relates to a magistrate's dismissal of a prosecution for the disclosure of information following a summary trial. It does not relate to a jury trial. In those circumstances there was no reason for Warren CJ to distinguish between the issues of fact and law involved in the assessment of whether a duty existed or had been breached. For my purposes, what was said by Warren CJ in pars34 - 36 of the above quoted passage does not pay due regard to these issues. In my view, in the example there given, the duties breached are the duties to prevent crime, investigate crime and apprehend offenders, and the breach is the disclosure of information. I do not accept that it is appropriate to convert a disclosure that breaches those recognised duties from a breach into a duty of non-disclosure. To illustrate the distinction I draw, I refer to the duty of care that the common law recognises is owed by the driver of a motor vehicle. That duty is commonly breached when damage or injury is caused by conduct such as driving on the wrong side of the road or at a significant speed. It is not however inevitable that such conduct will amount to a breach of the driver's duty of care as the position of the vehicle on the roadway or its speed may be reasonable in the circumstances of the case. For example, the explanation for the position or speed of the vehicle may be the need to avoid far greater damage or injury than that which eventuated. So a claim based on conduct of this nature is based on the recognised duty of care owed by a driver, and alleges that by reason of the vehicle's position or speed that duty was breached. It would be wrong to assert that the driver was subject to a duty not to travel on the wrong side of the road, or not to travel at a particular speed. The point I am endeavouring to illustrate also arises in relation to traffic regulations. They do not impose subsidiary duties of care on a driver. In Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424, the High Court, in a unanimous decision, held that traffic regulations were not definitive of the duties of drivers of vehicles. The regulations in question in that case related to the requirement that drivers give way to the right. At 427, the court said:

[191]

80 My research has not elicited any authorities that detail a test to adopt or the principles to be applied when determining whether a previously unrecognised duty, a breach of which may result in a criminal sanction, should be adopted by the common law. The determination of whether such a duty exists is, of course, a question of law for a judge, not a question of fact for a jury. Even in the much-litigated area of the civil law dealing with a duty of care, some have said that the High Court has found it difficult to provide clear guidance on how to ascertain when that duty arises; see Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 at [96], Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [211], Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 at [45], and Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [14]. It seems to me that the origin of some duties recognised by the courts have wrongly been attributed to the common law when, in fact, they can be traced back to a statute. See for example the duties detailed in the first and second Statute of Westminster that are referred to in par31 of these reasons and the example given in the paper by Helen Gamble "Manslaughter by Neglect" (1977) 1 Crim LJ 247 at 248. In that paper the point is made that in both civil and criminal cases the courts have been most reluctant to find a duty unless it was strictly imposed by statute. What is clear from my reading of the authorities is that it would be rare indeed for a court to recognise a new duty, a breach of which has criminal consequences. In my view a cautious approach should be taken to the recognition of a test that would result in the imposition of such a new duty on a public office, notwithstanding that the duty is described as a subsidiary duty. Where criminal consequences flow from the breach of a proposed new duty, that caution should, if anything, be greater than the cautious approach taken by courts to the recognition of new civil causes of action. As to that caution see Holloway v State of Tasmania (2006) 15 Tas R 125, par14. It is not to gainsay the maxim that ignorance of the law does not excuse an act which contravenes it, to recognise that there would be some injustice in finding that a person was in breach of a duty of an office when that duty had not previously been recognised as applying to that office.

[200]

87 From the defendant's point of view it can be said that speculative gossip about the Solicitor-General deal was wide spread many months before the disclosures that are the subject of the charges. The gossip had been sufficient to prompt Ms Neals to ask a question at a press conference or a "door stop" interview to test its truth. On the face of Mr Burch's allegation to the police, at the very least, the Premier and his senior advisor were aware of the gossip and of Ms Neals' knowledge of it. Inspector Cerritelli, in reports of 26 September 2007 that he provided on Mr Burch's allegations, said that the information regarding the appointment of public positions appeared to be well known in the media, particularly after recent articles that had been published by Ms Neals. The defendant had heard of the Solicitor-General allegation before he was appointed Commissioner of Police. In these circumstances it seems inevitable that, if Mr Burch's allegation was correct, the Premier, Mr Estcourt and Mr Green were well aware of the gossip. Had there been any substance to it, those involved had had many months within which to thwart any investigation of it. When Mr Burch's allegations were first made there was very good reason to ensure that they were keep confidential. This was necessary in order to protect Mr Burch's employment and protect those who were the subject of his allegations from what might prove to be unwarranted harm. Moreover, whilst the allegation of a deal as to the appointment of the Solicitor-General involved an assertion that the deal was off, there was some prospect that subsequent events could provide evidence of the deal. Mr Estcourt could have been appointed Solicitor-General and it could have been that he had not charged Mr Green for his services. By the time the disclosures were made, the circumstances were quite different. Mr Burch had been sacked. He had provided the document shredded by Mr Kons to Mr Booth who had produced it in the House of Assembly and it was obvious that Mr Burch was assisting Mr Booth and others to publicise his allegations. It was likely that he was the source of the information that was the basis of Ms Neals' report of 9 April that a sworn statement had been made to Inspector Cerritelli late last year detailing the chain of events in Mr Kons' office that led to the destruction of a document as to the appointment of a magistrate. There was no reason to think that Mr Burch was not being similarly active in disseminating information about the Solicitor-General allegation he had detailed in that statement. From the outset a difficulty with Mr Burch's allegation had been that it was hearsay on hearsay. The gravity of his allegation and the weight to be attributed to it had been somewhat diminished by subsequent events. The alleged deal had not been effected and it could no longer be effected had it been ongoing. Mr Sealy, not Mr Estcourt, had been appointed Solicitor-General on 3 March 2008. Government Ministers were being questioned in the House of Assembly on the basis of information provided to the opposition by Mr Burch and 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.

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Judgment (226 paragraphs)

State of Tasmania v Johnston [2009] TASSC 60 (5 August 2009)

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