Criminal Law - Particular offences - Miscellaneous offences and matters - Offences relating to public officers - Disclosure of official secrets - Information obtained by virtue of a public office - Duty of public officer to keep information secret - Authorisation of public officer to publish or communicate information.

Director of Public Prosecutions (Vic) v Zierk [2008] VSC 184; (2008) 184 A Crim R 582, Pense v Hemy [1973] WAR 40, Gray v Chilman (No 2) (1935) SASR 359, Hersu v R (1991) 173 CLR 272, R v Hyman and French [1992] WAR 222, R v McCann [1998] 2 Qd R 56, referred to.

Police Service Act 2003 (Tas), s42

State Service Act 2000 (Tas), s9

Judgment Number: [2009] TASSC 60

1 The defendant, John Johnston, is charged with three counts of disclosing official secrets, one of which charges is an alternative count. The particulars to each count are that at Hobart in Tasmania he:

"... on or prior to the 9th of April 2008, being a public officer, namely Commissioner of Police, disclosed official secrets to Paul Anthony Lennon, namely that:

(a) An allegation had been made to Tasmania Police that an agreement had existed that Stephen Estcourt would be appointed Solicitor-General in return for acting free of charge for Bryan Green in criminal proceedings; and

(b) Tasmania Police had decided to commence an investigation into the said allegation.

(c) That Nigel Burch had made the said allegation to Tasmania Police.

Such facts had come into the possession of the said John Johnston by virtue of his office and he had a duty to keep them secret."

"... on or prior to the 11th of April 2008, being a public officer, namely Commissioner of Police, disclosed official secrets to Paul Anthony Lennon, namely that:

(a) An allegation had been made to Tasmania Police that an agreement had existed that Stephen Estcourt would be appointed Solicitor-General in return for acting free of charge for Bryan Green in criminal proceedings; and

(b) Tasmania Police had decided to commence an investigation into the said allegation.

(c) That Nigel Burch had made the said allegation to Tasmania Police.

Such facts had come into the possession of the said John Johnston by virtue of his office and he had a duty to keep them secret."

"... on or prior to the 9th of April 2008, being a public officer, namely Commissioner of Police, disclosed official secrets by forwarding a document titled 'Briefing Note' to the Minister for Police and Emergency Management, and or his staff and or causing the said briefing note to be forwarded to Paul Anthony Lennon containing the following facts:

(a) That on the 20th day of September 2007 a statutory declaration was completed and provided to police which alleged impropriety in the intended appointment of the Solicitor-General;

(b) that the investigation by Tasmania Police into the allegation had been delayed because there were significant links between the allegation and the ongoing prosecution of Mr Green MHA and that a real possibility existed that to continue the investigation would potentially prejudice that trial; and

(c) It now had been decided to resume the investigation and that Detective Inspector Cerritelli and Acting Inspector Shaw were to conduct a preliminary investigation.

Such facts had come into the possession of the said John Johnston by virtue of his office and he had a duty to keep them secret."

2 The following are further particulars that the Crown has provided of the "duty to keep secret" to which it contends the defendant was subject:

•

"In the case of the Commissioner of Police:

(a) Section 42(4) of the Police Service Act 2003; and

(b) Common Law duties of a Police Officer which include, but are not limited to:

(i) A duty to obtain all possible information regarding criminal offences which have been committed.

(ii) A duty to detect crime and bring an offender to justice.

•

In the case of the Secretary of the Department of Police and Emergency Management: s9(7) of the State Service Act 2000."

Consistent with the further particulars, I proceed on the basis that the defendant was a public officer by reason of his holding the position of Commissioner of Police and also because he held the position of Secretary of the Department of Police and Emergency Management. I note however that the latter position was not mentioned in the initial particulars to each count.

3 The defendant does not dispute that as the holder of either or both of the offices referred to, that is, Commissioner of Police and Secretary of the Department of Police and Emergency Management, he was a public officer. What he does dispute is that, as the holder of either or both of these offices, he was subject to a duty to keep secret the facts referred to in any of the counts. He contends that to allow the prosecution to proceed would be an abuse of process as although he was a public officer, he was not thereby subject to a duty to keep secret information, as alleged, and that if he was subject to such a duty, the disclosures that he made did not breach it. For these reasons it is contended that the prosecution can be clearly seen to be doomed to fail. A finding to that effect is a basis for holding a prosecution to be an abuse of process; Walton v Gardiner (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ at 392 - 393 and Brennan J at 411. See also R v Smith [1995] VicRp 2; [1995] 1 VR 10, Brooking J at 15 - 16 and Byrne J at 28 - 29. A court will only be so satisfied in an exceptional or extreme case; Walton v Gardiner at 392 and R v Edwards [2009] HCA 20, par23. The onus of satisfying the Court of the abuse of process lies with the defendant, and his onus is a heavy one; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 529. In a case of this nature the application must be determined on the basis of the Crown's case at its highest. In this regard I have been greatly assisted by the parties' co-operation in identifying the relevant evidence and agreeing, in the main, on what can be said to be the Crown's case at its highest. It should be emphasised that their agreement as to this is solely for the purposes of, and confined to, the issues for my determination.

4 In 2006 Bryan Green was a member of the House of Assembly and member of the governing Labor Party. He was the Deputy Premier of Tasmania and, amongst other things, he was the Minister for Infrastructure, Energy and Resources. Tasmanian Compliance Corporation Pty Ltd was authorised to accredit building practitioners pursuant to the Building Act 2000 and was the only body so authorised. The Minister for Infrastructure, Energy and Resources had the power to authorise additional bodies to accredit building practitioners under that Act. On 15 February 2006 Mr Green, as that Minister, entered into a written agreement that:

"The Minister agrees that he will not exercise powers under s20(2) of the [Building] Act to authorise any additional body to accredit building practitioners ... without first giving the [Tasmanian Compliance Corporation Pty Ltd] written notice three years prior to that authorisation."

In consequence he was charged with interfering with an executive officer, contrary to the Criminal Code Act 1924 ("the Code"), s69, in that, by signing the agreement, he did an act intended to interfere with the free exercise by a Minister of the Crown of the duties or authorities of his office. Following this, Mr Green resigned from his position as Deputy Premier and his portfolios, but remained a member of the House of Assembly. One of those who acted for Mr Green in the defence of that prosecution was Stephen Estcourt QC.

5 On 6 July 2007, William Bale QC, tendered his resignation as Solicitor-General. It was well-known that Mr Estcourt aspired to be appointed Solicitor-General. Gossip suggested that in order to gain that appointment, Mr Estcourt would represent Mr Green on his trial at no cost. Susan Neals, a reporter with the Mercury newspaper, was aware of the gossip. When giving evidence in March this year she said that she had understood that "there was a suggestion or a speculation" which "was all rumour" that Mr Estcourt would act for Mr Green for "free or at a discounted rate, perhaps hoping" to be in "good favour" when the Solicitor-General was appointed. She said that the gossip she had heard had not gone so far as to suggest that there was a deal. She said that at some point which she could not recall, at a press conference or a "door stop" interview, she had asked a question to see if there was any truth in the rumour.

6 Stephen Kons was the Attorney-General and following Mr Green's resignation in 2006 he was Deputy Premier. Nigel Burch was employed as an advisor to Mr Kons from 2005 until 17 March 2008. Anthony Cerritelli was a Detective Inspector of Police and the officer-in-charge of the Glenorchy Criminal Investigation Branch. He took a statement from Mr Burch which was completed in the form of a statutory declaration and signed by Mr Burch on 20 September 2007. The statement related to two matters, the appointment of a magistrate, and the appointment of the Solicitor-General. It included the following:

"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."

7 A copy of the email was attached to the statutory declaration. It is as follows:

"13 July 2007

Yesterday I travelled to Latrobe with the Deputy Premier. On the way back, at around 1600 Linda Hornsy [sic] rang him. He motioned for me to be quiet, such as she would not know there was someone with him. I could not hear what she said, although I could hear that it was a woman and he called her Linda.

Afterwards the Deputy Premier told me that Linda had just told him that there was a deal done between the Premier, Bryan Green and Escort [sic] QC such that Escort [sic] would act pro bono for Bryan Green and afterwards would be made Solicitor-General.

The Deputy Premier said that this deal was now unable to proceed because Sue Neals of the Mercury had become aware of the intention to make Escort [sic] the SG.

He said that only Linda, the Premier and I knew of this conversation, and if it leaked out I would have to 'resign or commit suicide'.

I am concerned that I am being set up, or that the Dep Premier is creating a fall guy in case he is unable to keep his mouth shut or is set up himself, and I am diarising this on email so that a dated record of the facts and my concerns exists.

Nigel."

8 Senior counsel for the Crown informed the Court that the Crown acknowledges that there never was such a deal, that is, there never was a deal that Mr Estcourt would be appointed as the next Solicitor-General if he acted for Mr Green for free during his trial. On the evidence before me that acknowledgement is plainly correct. However, important as that acknowledgment is to the reputation of those who were the subject of the allegation, it has no bearing on the issues for my determination. What is relevant to those issues is the fact that Mr Burch made allegations to the police as detailed in his statutory declaration and email, one of which was an allegation of a deal about the appointment of the Solicitor-General. Had the allegation been true, those involved could have been prosecuted for the crime of bargaining for public office in breach of the Code, s111.

9 Mr Burch's statutory declaration was referred by Inspector Cerritelli to the then Commissioner of Police, Richard McCreadie, under cover of two documents dated 26 September 2007. One was headed "Confidential Executive Summary", and the other, a report, was marked "Confidential". Both documents contained advice to the effect that:

•

Mr Burch said that if the information he had provided became public he would definitely lose his job;

•

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 Sue Neals (copies of those articles did not accompany the reports, and they are not in evidence); and

•

Mr Burch was a prosecution witness in the pending trial of Mr Green and that trial could be prejudiced if Mr Burch's information was investigated before its finalisation, so it would be appropriate to postpone the investigation until after the trial.

10 On 8 October 2007 Inspector Cerritelli conferred with Commissioner McCreadie in relation to Mr Burch's allegations and then contacted Mr Burch. Following that contact, Inspector Cerritelli provided Commissioner McCreadie with a written report to the effect that he had spoken to Mr Burch and explained that it would be inappropriate to investigate his claims until after the trial of Mr Green had concluded, as an investigation could unfairly prejudice the outcome of the trial. Inspector Cerritelli reported that Mr Burch fully agreed with this decision. During the course of their discussion, Mr Burch told Inspector Cerritelli that he had retrieved the shredded document as to the appointment of a magistrate and retained it. This was not mentioned in Inspector Cerritelli's report to Commissioner McCreadie, but it was referred to in a later report he sent to the defendant dated 7 April 2008.

11 The statement of the Crown case at its highest records that on 15 October 2007 Commissioner McCreadie told David Llewellyn, the then Minister for Police and Emergency Management, that an allegation had been received from a staffer of the Attorney-General and that it related to the appointment of the next Solicitor-General. Mr Llewellyn was told that the allegation was that Mr Estcourt would be appointed Solicitor-General in return for representing Mr Green pro bono and that he, Commissioner McCreadie, would keep a watching brief on the matter. So far as I am concerned this conversation is of no relevance to the issues for my determination as there is no evidence before me that the defendant was aware of it. For the purposes of the issues for my determination, it is the defendant's knowledge of the relevant circumstances that is crucial.

12 On 20 December 2007, Inspector Cerritelli sent Mr Burch's file to Commissioner McCreadie and it was placed in a safe in the Commissioner's office. Commissioner McCreadie retired on 7 March 2008 and on the following day the defendant was appointed as his replacement. Before his retirement, Commissioner McCreadie told the defendant of Mr Burch's allegations and the reason why their investigation had been delayed.

13 Geoffrey Leigh Sealy was appointed Solicitor-General to take effect from 3 March 2008. Mr Estcourt had acted for Mr Green on his first trial. He charged $50,000 for his services. On 19 September 2007, Mr Estcourt had advised Mr Green that this was the fee he required, and it was agreed that Mr Green would pay that amount by three instalments of $15,000 and a final payment of $5,000. That this was done is evidenced by bank records and the like. The final payment of $5,000 was made on the last day of Mr Green's first trial, 4 December 2007. Insofar as these events establish that the deal that is the subject of Mr Burch's allegation was not effected, the following points need to be made. Whilst these events undermine the likelihood of the deal having been made, they do not contradict Mr Burch's allegation which was that on 13 July 2007 when he was told of the deal, he was also told that it would not proceed. Moreover, for the purposes of the issues before me, what is relevant is the state of the defendant's knowledge. Whilst he must have been aware that Mr Sealy had been appointed as Solicitor-General, there is no evidence that prior to the disclosures which are the subject of the charges, he had any knowledge of the fact that Mr Green had paid Mr Estcourt for his services.

14 Mr Green was tried twice and on each occasion the jury was unable to reach a verdict. On 12 March 2008, the Director of Public Prosecutions announced that no further proceedings would be had on the indictment against Mr Green.

16 During the week commencing 17 March 2008, Darren Hine, the Deputy Commissioner of Police, raised with the defendant the need to get on with the investigation of Mr Burch's allegations and the defendant responded that he would speak to the Director of Public Prosecutions.

17 On Saturday 5 April 2008, the Mercury newspaper published an article written by Ms Neals which detailed the substance of the allegation referable to the appointment of a magistrate that was contained in Mr Burch's statutory declaration. No mention was made of Mr Burch or his statutory declaration in the article, nor was any mention made of his allegation of a deal referable to the appointment of the Solicitor-General. That day Inspector Cerritelli telephoned Deputy Commissioner Hine and told him that Mr Burch had the document Mr Kons had shredded as to the appointment of a magistrate, and expressed concern that Mr Burch might go to the media about the failure of the police to investigation his allegation. Deputy Commissioner Hine telephoned the defendant and relayed to him the Inspector's concerns.

18 On Monday 7 April 2008, Michael Hodgman QC, a member of the Liberal Party, in opposition in the House of Assembly, telephoned Sergeant Stephen Shaw and asked if there was a police investigation into the allegation referable to the appointment of a magistrate and the destruction of documents. Sergeant Shaw made no comment. The defendant was notified of this conversation. The defendant telephoned the Director of Public Prosecutions and discussed the allegation surrounding the appointment of the magistrate but not the alleged deal about the appointment of the Solicitor-General. Later that day, the defendant met with Inspector Cerritelli and Deputy Commissioner Hine and in the course of their meeting, he told them that the Director of Public Prosecutions had advised that Mr Burch should be re-interviewed. There was also a brief discussion about advising the Minister for Police and Emergency Management, and the defendant said it was not necessary to do so.

19 During the morning of 8 April 2008, members of the opposition parties in the House of Assembly questioned Mr Kons about the allegations made in the Mercury article and about whether any signed Cabinet document recommending the appointment of a magistrate had been destroyed. He denied that this had occurred. Thereafter, at 10.41am, the shredded document, as reconstructed, was produced in the House by Kim Booth, a member of the Greens Party. The defendant was made aware of these events. He requested Deputy Commissioner Hine to prepare a briefing note for the Minister in relation to the investigation of Mr Burch's allegations, and in response to a query by Mr Hine, the defendant said that the Minister had a right to know that an investigation was underway. A draft briefing note was prepared by Inspector Cerritelli. It was as follows:

"BRIEFING NOTE

MINISTER FOR POLICE AND EMERGENCY MANAGEMENT

SUBJECT: ALLEGATION RELATING TO THE APPOINTMENT OF TWO PUBLIC POSITIONS

•

During September 2007, a complaint was received by the Department of Police and Emergency Management from a person raising concerns about the inappropriate appointment of two public positions.

•

Due to the nature of the allegation, a decision was made to delay any investigations into the claim until the criminal trials associated with the Service Level Agreement involving the Tasmanian Compliance Corporation had concluded.

•

Now that the trials have concluded an examination of the allegation has been undertaken in consultation with the Director of Public Prosecutions to ascertain whether any offences have been disclosed.

•

Preliminary enquiries have commenced to determine whether an investigation will be conducted."

20 Before the end of the House of Assembly sitting on the night of 8 April 2008, Mr Kons acknowledged that he had misled Parliament in relation to the shredding of the magistrate appointment document. No doubt many media outlets in Tasmanian reported the events in Parliament that day, and on the following morning, 9 April 2008, the Mercury did likewise. In a separate article on police enquiries into the destruction of documents, Ms Neals reported that the then Premier and Mr Kons had said they did not know of such an enquiry and that:

"The Mercury understands a statement was made to Detective Inspector Tony Cerritelli, of the Glenorchy branch of Tasmania Police's Criminal Investigation Branch, late last year, detailing the chain of events within Mr Kon's office leading to the destruction of the signed documents.

It is believed the then Police Commissioner Richard McCreadie and Director of Public Prosecutions Tim Ellis received copies of the sworn statement.

Neither the DPP nor Tasmania Police would comment yesterday when asked about the alleged statement in their possession."

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.

22 On the morning of 9 April 2008 the office of the Commissioner of Police received an oral request from the office of the Minister for Police and Emergency Management for a briefing on the Mercury report. The request made no specific reference to the allegation by Mr Burch referable to the appointment of the Solicitor-General and there had not been any report of that allegation in the media. The defendant had added to the briefing note prepared by Inspector Cerritelli, and when he was advised of the Minister's request, he forwarded the briefing note as prepared by him, as well as a question time brief to the Minister's office. Thereafter, at 9.30am, he went to the Minister's office and met the Minister and two of his staff. Questions about the investigation of Mr Burch's allegations had been directed to the Premier the previous day. When asked whether the briefing material should be disclosed to the Premier, the defendant did not object to that course being taken. He said that he had deliberately inserted less information in the question time brief than in the briefing note, and that he did not think that all the information contained in the briefing note should be stated in Parliament.

23 The briefing note and the question time brief were as follows:

"BRIEFING NOTE

MINISTER FOR POLICE AND EMERGENCY MANAGEMENT

SUBJECT: ALLEGATION RELATING TO THE APPOINTMENT OF TWO PUBLIC POSITIONS

•

On 20 September 2007, a statutory declaration was completed and provided to police which alleged impropriety in what was believed to be the intended appointment of a magistrate and of the Solicitor-General."

•

Upon receipt of this material, discussions were held between the office of the Director of Public Prosecutions and the Commissioner of Police (Richard McCreadie) and these led to the commencement of an investigation.

•

It was identified that there were significant links between this allegation and the ongoing prosecution of Mr B Green MHA and a real possibility existed that to continue the investigation could potentially prejudice that trial. The Commissioner of Police and the DPP agreed that the investigation should be deferred pending the resolution of the proceedings againsts [sic] Mr Green.

•

The trial of Mr Green did not produce a result and the DPP has decided to discontinue the prosecution.

•

I decided that the deferred investigation should be resumed and directed the Acting Deputy Commissioner to conduct it in a timely fashion. He has assigned Detective Inspector Cerritelli and Acting Detective Inspector Stephen Shaw to complete a preliminary investigation to determine whether or not an offence has been committed. In this process the advice of the Director of Public Prosecutions will be sought.

J Johnston

COMMISSIONER OF POLICE

9 April 08"

"QUESTION TIME BRIEF

Hon Jim Cox, MP

Minister for Police and Emergency Management

SUBJECT: ALLEGATIONS RELATING TO THE APPOINTMENT OF TWO PUBLIC POSITIONS

SUGGESTED RESPONSE

Mr Speaker, this morning I asked my staff to raise with the Commissioner of Police the issue of the article on page 2 of today's Mercury under the headline, 'Allegations of police probe into destroyed papers', which reported observations made by the Opposition yesterday.

I am informed that Tasmania Police received a report on 20 September 2007 making allegations regarding what was claimed to be impropriety in proposed appointments to be made by the Government. The material was referred to the then Commissioner of Police, Mr Richard McCreadie, who after an initial investigation of the matter decided to defer the further investigation of the allegations until after the re-trial of Mr Green MHA. This decision was taken in consultation with the Director of Public Prosecutions, Mr Tim Ellis, amid concerns that such an investigation or any attending publicity could have a prejudicial affect [sic] on that trial.

Mr Speaker, the current Commissioner decided to continue the investigation to determine whether or not any offence has been disclosed.

Mr Speaker, I can unequivocally state that I have not previously received any advice from the Commissioner regarding the existence of this allegation. I fully respect the need for an appropriate separation between the independent and impartial police investigation of matters such as this an any suggestion of political involvement in an operational policing matter.

Mr Speaker, I have been informed that the Commissioner of Police will obtain advice from the Director of Public Prosecutions in due course as to whether or not an offence or crime has been disclosed and whether or not in those circumstances a more complete investigation is necessary."

24 The Minister's staff forwarded copies of the briefing material to the Premier who received it prior to the commencement of Parliament that morning. Further, on the Crown case at its highest, on or shortly before this day, the defendant told the Premier that Mr Burch had made a complaint about the appointment of the Solicitor-General and the allegation was that Mr Estcourt had represented Mr Green on his trial in return for being made the Solicitor-General and that the police were investigating the allegation. This communication is the subject of count 1. The briefing note provided to the Minister and his staff which was forwarded to the Premier, is the subject of count 2.

25 On this day, 9 April 2008, Mr Kons resigned as Deputy Premier and as a Minister, but remained a Member of the House of Assembly. On 9 and 10 April 2008, the focus of proceedings in the House of Assembly was on the shredded document and matters incidental thereto, including what, if any, enquiries had been carried out by the police in relation to it. The Premier was asked a number of questions about the matter and undertook to make enquiries in relation to some aspects.

26 On 11 April 2008, the defendant met the Premier at his Office. The Premier asked why the investigation of the allegation in relation to the appointment of a magistrate had been delayed. The defendant explained that this was because of Mr Burch's allegation about a deal that Mr Estcourt be appointed Solicitor-General in return for acting for Mr Green on his trial at no cost. The defendant said that the allegation could not be investigated until Mr Green's prosecution had been completed. This communication is the subject of the alternative charge to count 1.

27 When the defendant made the disclosures that are the subject of the charges, the only members of the Police Service besides him who had been told of Mr Burch's allegations were Sergeant Shaw, Inspector Cerritelli, and Deputy Commissioner Hine. Save to the extent of their involvement in the preparation of the initial draft briefing note, they were not made aware of the disclosures that had been made by the defendant, although copies of the settled briefing note and the question time brief must have been readily available.

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.

29 The crime of disclosing official secrets is created by the Code, s110, which provides:

"110 Disclosure of official secrets

Any public officer who discloses (except to some person to whom he is authorized to publish or communicate the same) any fact which comes to his knowledge, or the contents of any document which comes to his possession, by virtue of his office and which it is his duty to keep secret, is guilty of a crime.

Charge: Disclosing official secrets."

30 The description of the crime as "disclosing official secrets" is apt to mislead. The official secrets referred to are not State secrets but confidential information that comes to the knowledge of a public officer by virtue of that office. The confidential information that is the subject of the crime need not be information of the nature of that which is commonly understood to be an official secret, such as information linked with espionage, national security and the gathering of intelligence. That is, the sort of information which, at the time of the enactment of the Code, s110, was the subject of the Crimes Act 1914 (Cth), Part V11, and the Official Secrets Act 1911 (UK). Offences against that Part of the Crimes Act and the Official Secrets Act were not the subject of a generic provision such as the Code, s110. The information they covered was identified with some precision and with minor exceptions (for example one aspect of the Crimes Act, s79(1), and a similar provision in the Official Secrets Act, s2(1)) the crimes and offences there detailed related to any person, not public officers alone.

31 The genesis for the Code, s110, was not a pre-existing common law or statutory offence referable to the disclosure of confidential information by a public officer. Offences involving misconduct by the holder of a public office can be traced back to the eyre of the justices itinerant during the 13th Century and beyond. See The History of English Law, Pollock and Maitland, 1 ed, 1895, vol II, 519 - 520 and vol I, 179 - 180, and the submission in R v Dytham [1979] 1 QB 722 at 723. An illustration is the first Statute of Westminster 1275, which set out a number of offences for officers of the King. For example it provided:

•

that because the peace of the land had been weakly kept for lack of good pursuit being made of felons, a bailiff who failed to pursue and arrest felons would be imprisoned and that a sheriff or other bailiff who did favours to wrongdoers in the performance of their office would be imprisoned and fined, Ch 9;

•

that sheriffs, constables or other bailiffs who wrongly released a prisoner, or wrongly failed to release a prisoner, who had provided sufficient surety, are liable to be imprisoned and fined, Ch 15;

•

that sheriffs who failed to properly account for debts recovered that were due to the King could be dealt with as there provided, Ch 19;

•

that no Royal official could profit from an interest in an action in the King's courts for lands, tenements or other things, Ch 25; and

•

that no sheriff or other royal official could take any reward for doing his office besides the payment that he received from the King; Ch 26.

See also the second Statute of Westminster, 1285, which contained measures to prevent dishonesty by sheriffs in the return of writs and other matters in Ch 39.

32 During the first half of the last millennium, there was a gradual accumulation of statutory offences dealing with the holders of public offices. As noted in A History of English Law, Holdsworth, vol IV at 520, by and during the 16th Century a number of statutes had been passed to prevent the misdeeds of those holding certain public offices. However, by the time the Code was enacted in Tasmania in 1924, whilst a number of acts committed by or towards public officers in Britain were recognised to be criminal or summary offences, either at common law or by statute, they did not include an offence of the nature of s110. See the Laws of England vol 23, 1912, par711 and vol 9, 1909, pars948 - 978. The only offences there referred to that involved a public officer's disclosure of information were an aspect of an offence under the Official Secrets Act 1911 (UK), and offences to be found in the Post Office Act 1908 (UK). The latter Act provided that an employee of the Post Master General was guilty of a misdemeanour if, contrary to his duty, he opened any postal packet or disclosed or intercepted the contents of a telegram. Similar offences were contained in the Post and Telegraphs Act 1901 (Cth). As a further indication of the absence of any pre-existing common law or statutory offence for public officers of the nature of the Code, s110, see Sir James Stephen, A Digest of the Criminal Law, 1894, PtIII at 87.

33 Prior to the enactment of the Code, three provisions that bear some similarities to the Code, s110, had been enacted in Australia. They were:

"Disclosure of other Official Secrets

86 Any person who, being employed in the Public Service, publishes or communicates any fact which comes to his knowledge by virtue of his office and which it is his duty to keep secret, or any document which comes to his possession by virtue of his office and which it is his duty to keep secret, except to some person to whom he is bound to publish or communicate it, is guilty of a misdemeanour, and is liable to imprisonment for two years."

"CHAPTER XII - DISCLOSING OFFICIAL SECRETS

81 Any person who, being employed in the Public Service, publishes or communicates any fact which comes to his knowledge by virtue of his office and which it is his duty to keep secret, or any document which comes to his possession by virtue of his office and which it is his duty to keep secret, except to some person to whom he is bound to publish or communicate it, is guilty of a misdemeanour, and is liable to imprisonment for two years."

•

The Crimes Act 1914 (Cth), s70:

"PART VI - OFFENCES BY AND AGAINST PUBLIC OFFICERS

70 Any person who, being a Commonwealth officer, publishes or communicates any fact which comes to his knowledge by virtue of his office, and which it is his duty to keep secret, or any document which comes to his possession by virtue of his office, and which it is his duty to keep secret, except to some person to whom he is authorized to publish or communicate it, shall be guilty of an offence.

Penalty: Imprisonment for two years. "

The first of these provisions, the Criminal Code Act (Qld), s86, was drafted by Sir Samuel Griffith. He says its sources were the Italian Penal Code 1889, s177, and the Posts and Telegraphs Act 1891 (Qld), s43. As to this see the draft Code of Criminal Law that he prepared for the Government of Queensland, which was presented to both Houses of Parliament in 1897. Moreover, there was no suggestion in that draft that s86 reflected a common law offence, whilst the margin note to s87, official corruption (the Code (Tas), s91) recorded that it had been a misdemeanour at common law.

34 The three provisions referred to that preceded the Code, s110, related to either a person employed in the Public Service or a Commonwealth officer, whilst the Code, s110, relates to a public officer. That term is defined in the Code quite differently to the definitions given to the phrase "a person employed in the Public Service" and the term "Commonwealth officer" in the Acts containing those references. Those definitions did not include an all-encompassing reference to a public officer, and the Queensland Code, s87, and the Western Australian Code, s82, drew a distinction between a public officer and a person employed in the Public Service, to the extent that the offence of official corruption was expressed to cover both a person employed in the Public Service and the holder of any public office. Insofar as the Code, s110, is confined in its application to public officers, it seems that it was the first statutory provision of its type in Britain or Australia. It might have been assumed from the wording of s110 that when it was enacted, there were many public offices, the holders of which were subject to a duty to keep information secret; that is far from the case. As I have already said there was no generally applicable statutory or common law duty that required the holder of a public office to keep information secret. I have only been able to find a few statutes that imposed such a duty with respect to particular public offices.

35 Putting to one side issues that may arise as to the mental element involved in the crime set out in the Code, s110, for the Crown to obtain a conviction it must:

•

establish that the defendant was a public officer;

•

establish that some or all of the facts detailed in the particulars to the charge under consideration came to the defendant's knowledge by virtue of his office ("the information");

•

establish that it was the defendant's duty to keep secret the information;

•

establish that the defendant disclosed the information to a person or persons; and

•

defeat an assertion that the defendant was authorised to disclose the information to that person or those persons.

36 Whilst it has not been disputed that the defendant was a public officer, the meaning of that term as it has been used in the Code since its enactment warrants attention because it has some bearing on other aspects of this case. The Code, s1, provides: "In the Code, unless the contrary intention appears - 'public officer' means a person holding any public office, or who discharges any duty in which the public are interested, whether such person receives payment for his services or not". Somewhat unusually, a number of Tasmanian statutes contain quite different definitions of the term "public officer". Examples include the Supreme Court Civil Procedure Act 1932, s3(1), the Police Offences Act 1935, s34B(4), the Unclaimed Moneys Act 1918, s2, the Costs in Criminal Cases Act 1976, s2, the Public Interest Disclosures Act 2002, s3(1), and the Justices Act 1959, s3(1). See also the now repealed Public Officers' Protection Act 1934, s3. There are also marked differences between some of the definitions. For example, the breadth and detail of the definition in the Public Interest Disclosures Act is significantly more extensive than the comparatively brief definition contained in the Justices Act which is that the term "means any person employed in any capacity in the public service of the State and includes - (a) a police officer; and (b) a probation officer". In each of the examples referred to, except the Police Offences Act, the definition encompasses employees of the State. It seems that in Tasmania it is only in legislation that deals with crimes or offences involving a public officer's duty or duties that a more traditional and confined definition of that term has been adopted.

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:

"Their Lordships can now express their final opinion upon the case. They repeat that in their view there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original not delegated and is exercised at his own discretion by virtue of his office : he is a ministerial officer exercising statutory rights independently of contract. The essential difference is recognized in the fact that his relationship to the Government is not in ordinary parlance described as that of servant and master."

38 For the purposes of the proceedings before me, it is conceded that the defendant received information of the nature of that which is the subject of each charge by virtue of his being a public officer. This concession was soundly based. The authorities distinguish between the duty of a public officer and the functions of that office. Speaking generally, for a public officer to be found in breach of a duty, it is necessary to identify a recognised duty of that office that has been breached. See Pense v Hemy [1973] WAR 40 (on this issue the Full Court was unanimous), Director of Public Prosecutions (Vic) v Zierk [2008] VSC 184; (2008) 184 A Crim R 582 and Gray v Chilman (No 2) [1935] SASR 359. After all, it might be considered to be absurd if a wilful failure to perform any function that a public officer was required to perform in the course of his or her work, however insignificant, could found a criminal prosecution for a crime such as the Code, s115, which provides:

"115 Omission by public officer to perform duty

(1) Any public officer who wilfully and without lawful excuse omits to do any act which it is his duty to do as such officer is guilty of a crime.

(2) No person shall be prosecuted under this section without the consent in writing of the Attorney-General.

Charge:

39 On the other hand, it might be considered absurd that, as to crimes such as bribing a public officer, the prosecution would fail unless it was established that the purpose of the bribe was to influence the public officer in the performance of an established duty of the office as distinct from a function of the office. In consequence, where it is alleged that a public officer has sought or received a bribe or the like on account of anything done "by him in discharge of the duties of his office", that phrase is construed widely as extending to any function of the office. On this basis it has been held that where the public office is such that its holder is in a position to wield influence in matters of a particular kind, the wielding of that influence is a discharge of the duties of the office, Herscu v R [1991] HCA 40; (1991) 173 CLR 276, Brennan J at 287, and see Mason CJ, Dawson, Toohey and Gaudron JJ at 282 -284. A similarly wide approach should be taken to the issue of whether a public officer has received information by "virtue of his office". This was done in Johnston v Director of Public Prosecutions (1989) 97 FLR 424, at 428, and Middelhuis v Jakiwczyk SC(ACT), 10 September 1996, BC9604386. Accordingly, so long as the information in question was received by the defendant in the course of or arising from the performance of any of the functions of either of his offices, it was within the scope of s110.

40 Was the defendant subject to a "duty to keep secret" the information within the meaning given to that phrase in the Code, s110? Although the word "duty" is commonly used to encompass both moral and legal obligations, the Code, s110, is not concerned with moral duties. The duty referred to is a duty imposed on the defendant as a public officer by virtue of that office; it is an official duty rather than a moral or civic duty; R v Ponting [1985] Crim LR 318, McCowan J at 319. His Honour also suggests that the duty cannot be contractual. I do not accept this. It seems to me that in some circumstances it could be demonstrated that a contractual duty was a duty of the office. It is not necessary to pursue this further as there is no suggestion that either of the offices held by the defendant imposed on him a contractual duty to keep information secret. As to the significance of the common law and statutory provisions in the determination of whether a duty is imposed by virtue of an office, see generally, Zierk (supra) Pense v Hemy (supra) at 41 - 43 and 47, and Gray v Chilman (supra) Reed AJ, at 363. In a different context it is also well-recognised that for the breach of a duty to attract criminal consequences, the duty must be imposed by statute or the common law, R v Taktak (1988) 14 NSWLR 226.

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.

42 The defendant was subject to a duty to keep secret the information in question if:

•

either of his offices was the subject of a recognised common law duty to that effect;

•

the statutory provisions relied upon by the Crown imposed such a duty on either of his offices; or

•

such a duty was imposed by the common law on either of his offices in the circumstances of this case.

A recognised common law duty to keep secret information

43 Neither by its particulars, nor in argument, has the Crown suggested that the office of the Commissioner of Police or the office of Secretary of the Department of Police and Emergency Management are subject to a common law duty to keep information secret. The defendant is a police officer for the purposes of Police Service Act as pursuant to that Act_,_ s4(2), the Commissioner of Police is a member of the Police Service and the definition of the term "police officer" in s3 includes a member of the Police Service. Pursuant to that Act, s83, a police officer has the powers, privileges and duties of a constable at common law, or under any other Act or law. Whilst the particulars provided by the prosecution of the duty alleged refer to three well-recognised common law duties of a police officer, they correctly do not assert that a police officer is subject to a recognised common law duty to keep information secret. As noted in Zierk (supra) par17, no authority supports the proposition that the common law imposes such a duty**.** The role of a constable can be traced back to the 900s, see T A Critchley, A History of Police in England and Wales 900-1966, Constable and Company Ltd, 1967. I have not located any authority to the effect that a police officer is subject to a generally applicable common law duty to keep information secret.

44 The statutory provisions relied upon by the Crown to impose a duty of secrecy on the defendant are similar, as are a number of provisions as to a code of conduct in the two Acts referred to.

45 The Police Service Act, s42, provides:

"42 Code of conduct

(1) A police officer must behave honestly and with integrity in the course of his or her duties in the Police Service.

(2) A police officer must act with care and diligence in the course of his or her duties in the Police Service.

(3) A police officer must comply with -

(b) any lawful direction or lawful order given by a senior officer.

(4) A police officer must maintain appropriate confidentiality about any dealing made and information gained in the course of his or her duties in the Police Service.

(5) A police officer must disclose, and take reasonable steps to avoid, any conflict of interest in connection with his or her duties in the Police Service.

(6) A police officer must use the resources of the Police Service in a proper manner.

(7) A police officer, in connection with his or her duties in the Police Service, must not -

(a) knowingly provide false or misleading information; or

(b) omit to provide any matter knowing that without that matter the information is misleading.

(8) A police officer must not make improper use of -

(a) information gained in the course of his or her duties in the Police Service; or

(b) the duties, status, power or authority of the police officer -

in order to gain, or seek to gain, a gift, benefit or advantage for the police officer or for any other person.

(9) A police officer must not access any information to which the police officer is not entitled to have access.

(10) A police officer must not destroy, damage, alter or erase any official document, record or entry without the approval of the Commissioner.

(11) A police officer must not, at any time, conduct himself or herself or act in a manner that is likely -

(a) to be prejudicial to the Police Service; or

(12) A police officer must not victimise or discriminate against another police officer because that other police officer has reported a breach of a provision of the code of conduct.

(13) A police officer must comply with any other prescribed conduct requirement."

46 As to a breach of the code of conduct detailed in s42, or a complaint referable to the same, if the Commissioner of Police is satisfied that a breach has occurred, he or she may, amongst other things, dismiss, demote or fine the offender up to $2,400.00, s43(3) and s47(2). In the case of a commissioned police officer, a demotion or a dismissal must be approved by the Minister, s43(4). Where the Commissioner of Police is the person who is alleged to have breached the code of conduct, the Minister so designated has the responsibilities of the Commissioner of Police in dealing with the breach, s52.

47 The State Service Act, ss9 and 10, relevantly provide:

"9 The State Service Code of Conduct

(1) An employee must behave honestly and with integrity in the course of State Service employment.

(2) An employee must act with care and diligence in the course of State Service employment.

(3) An employee, when acting in the course of State Service employment, must treat everyone with respect and without harassment, victimisation or discrimination.

(4) An employee, when acting in the course of State Service employment, must comply with all applicable Australian law.

(5) For the purpose of subsection (4),

(a) any Act (including this Act) or any instrument made under an Act; or

(b) any law of the Commonwealth or a State or Territory, including any instrument made under such a law.

(6) An employee must comply with any standing orders made under section 34(2) and with any lawful and reasonable direction given by a person having authority to give the direction.

(7) An employee must maintain appropriate confidentiality about dealings of, and information acquired by, the employee in the course of that employee's State Service employment.

(8) An employee must disclose, and take reasonable steps to avoid, any conflict of interest in connection with the employee's State Service employment.

(9) An employee must use Tasmanian Government resources in a proper manner.

(10) An employee must not knowingly provide false or misleading information in connection with the employee's State Service employment.

(11) An employee must not make improper use of -

(a) information gained in the course of his or her employment; or

(b) the employee's duties, status, power or authority -

in order to gain, or seek to gain, a gift, benefit or advantage for the employee or for any other person.

(12) An employee who receives a gift in the course of his or her employment or in relation to his or her employment must declare that gift as prescribed by the regulations.

(13) An employee, when acting in the course of State Service employment, must behave in a way that upholds the State Service Principles.

(14) An employee must at all times behave in a way that does not adversely affect the integrity and good reputation of the State Service.

(15) An employee must comply with any other conduct requirement that is prescribed by the regulations.

(16) For the purposes of this section, a reference to an employee includes a reference to an officer and a reference to State Service employment includes a reference to an appointment as an officer and an arrangement made under section 46(1)(a)."

"10 Breaches of Code of Conduct

...

(5) An officer or an employee must not victimise, or discriminate against, another officer or employee because that officer or employee has reported breaches (or alleged breaches) of the Code of Conduct to the Commissioner or a Head of Agency."

48 The Secretary of the Department of Police and Emergency Management is an employee for the purposes of the code of conduct detailed in that Act, s9. Pursuant to s10, it is for the State Service Commissioner to establish procedures for the investigation and determination of whether an employee has breached the code of conduct, and where a breach has been established, the Minister may, amongst other things, impose a fine not exceeding $2,400, and terminate the employment of the offender in accordance with ss44 or 45.

49 The statutory basis upon which the Crown relies for the imposition on the defendant of a "duty to keep secret" information is the Police Service Act, s42(4) and the State Service Act, s9(7). Do either or both of these provisions impose such a duty on a public officer for the purposes of the Code, s110? In a number of instances, but not in every case, the Code imposes and fully details a duty, the breach of which may result in a criminal conviction. The best illustration of this is the Code, Part V, which details the duty to provide necessaries, the duty of a head of family, the duty of masters, the duty of persons doing dangerous acts, and the duty of persons in charge of dangerous things. Those duties are exhaustive, Phillips v R [1971] Tas SR 99. The Code, s152, provides that a person who fails to perform any of the duties detailed in Part V is criminally responsible for that omission if it causes any of the outcomes there specified. In other instances, and this is so in relation to crimes involving public officers, the Code does not impose the duty or duties to which it refers. This is not surprising as there are any number of different public offices, and in many instances those offices would attract quite different duties.

50 By reason of the Police Service Act, s42, and the State Service Act, s9, a person subject to either Act who fails to comply with an obligation detailed in the applicable section, is in breach of the code of conduct laid down in that section. So, a person subject to either or both of these Acts who failed to "maintain appropriate confidentiality" about information, would be in breach of either or both of the Police Service Act, s42(4), and the State Service Act, s9(7), and could be dealt with under the applicable provisions for a breach of the code of conduct. The fact that a person has breached the code of conduct in either of these Acts does not necessarily mean that the person, if a public officer, has breached a duty of that person's office for the purposes of a crime under the Code. A similar approach is taken to unlawful acts. An act is not an unlawful act for the purposes of that term as used in the Code, s157(1)(c), merely because it breaches a statutory or regulatory provision, R v Rau [1972] Tas SR 59.

51 The Crown's contention is that the Police Service Act, s42(4) and the State Service Act, s9(7), imposed a duty on the defendant, the duty being that he:

"must maintain appropriate confidentiality about:

•

any dealing made and information gained in the course of his ... duties in the Police Service; [and]

•

dealings of, and information acquired by [him] in the course of [his] State Service employment".

52 The issue for my determination is whether the Police Service Act, s42 and the State Service Act, s9, or more specifically s42(4) and s9(7) of the respective Acts, impose a duty, the breach of which has criminal consequences for the purposes of the Code, s110, as distinct from disciplinary requirements of the nature of functions of office. As to statutory provisions governing police officers, it is well-recognised that many so-called duties of police officers are more correctly described as a function of office than a duty. See Canadian Pacific Tobacco Company Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1, Dixon J at 6, Herscu (supra) and Zierk (supra) where Warren CJ said at pars18 and 19:

"18 On the authorities, the meaning of 'duty' is dependent upon the context in which it is used. It may refer to a legal duty: an obligation to act, imposed by law, and generally mandatory; or, it may refer to the functions of an office. Whether the officer-bearer performs the functions, and in what manner, is generally discretionary. The courts have been reticent to state exhaustively the legal duties imposed on police officers. With competing policy objectives and limited resources, legal duties are imposed cautiously. Many 'duties' of a police officer are more aptly described as functions of office and the discretion in performing these functions is wide.

The 'duties' of a police officer are ancient and include: the duty to preserve the peace; the duty to protect life and property; the duty to prevent crime; the duty to detect crimes when they occur; the duty to apprehend offenders; the duty to prevent obstructions of highways; and the duty to uphold the law.

19 However, these must be sensibly read as functions of the office of police member rather than legal, mandatory obligations. It would be a nonsense to say that a police member had a legal duty to prevent crime, a breach of which would result with every crime committed. The member has a responsibility to prevent crime, or function of preventing crime."

53 I agree with par18 above but, with respect, consider that her Honour goes too far in par19 when she in effect says that the ancient duties of police officers must be sensibly read as functions of office rather than legal, mandatory obligations. On my reading of the authorities, a distinction is to be drawn between the long-established common law duties of a police officer and other so-called duties which are more appropriately characterised as functions of office. In this context, it should be borne in mind that if every function of a police officer, however insignificant, was a duty, a person who resisted, wilfully obstructed or abused a police officer in the exercise of any function, would be guilty of resisting a police officer in the execution of a duty in contravention of the Police Offences Act, s34B(1), an offence which attracts a fine of up to $6,000 or imprisonment for up to two years. Authorities recognise that for the purposes of offences of this nature it is necessary that the police officer was exercising a recognised duty, Innes v Weate [1984[ Tas R 14, Forrest v Douglas [1983[ WAR 270, and the DPP's Reference (1993) (ACT) (1993) 71 A Crim R 115.

54 During the last century the Acts and Regulations that governed police in the various jurisdictions in Australia tended to be replete with provisions that might have been thought to impose duties on police officers but which were characterised by the courts as functions of office not duties. This is well illustrated by the Police Regulation Act 1898 (Tas) and the Regulations made under that Act, the Police Regulations 1898, the Police Regulations 1939, the Police Regulations 1958, and the Police Regulations 1974. The latter, reg47, listed 72 matters in respect of which a police officer could be found guilty of a breach of the regulations. The list covered a wide range and variety of conduct and included divulging any matter which it was the police officer's duty to keep secret. Surprisingly, at least to my mind, the list of matters for which an officer could be found to be in breach of the Regulations also included as separate matters, quarrelling, incivility, and gossiping. The Police Regulations 1898 contained similar provisions although they were not as comprehensive. Those Regulations, reg38, listed 41 offences for which a police officer was liable to be prosecuted. They included the examples I have given from the Police Regulations 1974. As to whether matters such as these could properly be categorised as a duty of a police officer, the following authorities are pertinent.

55 Enever v R [1906] HCA 3; (1906) 3 CLR 969, is a case that involved the Police Regulation Act 1898 (Tas) and its predecessor, the Police Regulation Act 1865 (Tas). With reference to these enactments, Griffith CJ said, at 979:

"In my opinion, both the Act of 1865 and the Act of 1898 were intended merely to deal with the appointment and disciplinary control of constables, leaving the nature of their powers and duties and the responsibility for their actions to be governed by the common law as modified by the Statutes (if any) dealing with that subject."

56 In Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55, Starke J, at 75, said:

"The Police Regulation Act 1899, sec 12, authorized the Governor to make rules for the general government and discipline of members of the police force. Under this power the Governor in Council purported to make rules relating to conditions of service and discipline of the force. ... Somewhat similar provisions have been fully considered by the Judicial Committee in R. Venkata Rao v Secretary of State for India, by this court in Ryder v Foley, and by the Supreme Court of New Zealand in Power v The King. All these tribunals denied that such provisions affected the tenure of office of constables or conferred any right upon them. The conclusion reached was that the provisions constituted administrative machinery necessary or desirable for the management and discipline of the police force."

57 In Reedman v Hoare [1959] HCA 50; (1959) 102 CLR 177, Windeyer J, at 186, said:

"Unless members of the Police Force have the duties and the powers that attach to the ancient office of constable the conduct of police duties would be impossible; for The Police Acts themselves do little more than provide for the organization , discipline and government of the force. They presuppose, and in the first part of s10 expressly refer to, a body of law, independently existing, concerning the powers, privileges, duties and responsibilities of a constable."

58 Perhaps because of the distinction that has been drawn by courts between a duty imposed on a police officer and a function of office, some more recent legislation governing police has embraced the term "function", whilst other legislation has eschewed the use of the term "duties". The Australian Federal Police Act 1979 (Cth), the Police Act 1990 (NSW), and the Police Service Administration Act 1990 (Qld) each, in different ways, adopt the term "function". On the other hand, the term "function" is rarely used in the Police Service Act 2003 (Tas) and the Police Service Regulations 2003 (Tas) and they contain only two provisions that expressly relate an obligation imposed on a police officer to a duty, although they contain a number of provisions in which the words "duty" or "duties" are used to refer to a police officer's work in the sense of the performance of the functions of that office. For example, ss38, 39, 40 and 41 refer to a police officer who has been stood down or suspended from duty, s44 refers to a police officer being on or off duty and regs4 and 8 refer to a police officer being absent from duty as a result of a sickness. These uses reflect the Act, s3, which provides that "duties" includes functions and responsibilities. See also the definition of "police dog" and "police dog handler" and s7(1)(c) and (f), s15(5)(b), s21(2), s28(3)(a), s29, s42 and s77. The only section that expressly describes an obligation imposed on a police officer as a duty is s82B, a recent addition to the Act, which authorises a police officer to detain a person to be screened by a police dog. Section 82B(5) provides:

"It is the duty of a police officer to ensure that he or she does not cause a person to be detained for a period longer than is necessary for the proper exercise of the powers conferred by this section."

59 One section that it might be thought expressly identifies a requirement as a duty is s35, which provides:

"35 Duties of police officers

(1) A police officer is subject to the direction and control of the Commissioner.

(2) A police officer -

(a) is responsible for the management and control of any part of the Police Service as the Commissioner determines; and

(b) must undertake the duties assigned to him or her; and

(c) must comply with any lawful direction or lawful order of a senior officer."

60 In construing s35 it is to be remembered that a section heading rarely assists in the interpretation of a section, and when it does it is, at most, a quite minor and unsure guide, Geale v Tasmania [2009] TASSC 28, par35. That aside, there is clear authority that a requirement of the nature dealt with in s35(2)(c) that a police officer must comply with any lawful direction or lawful order of a senior officer is a duty, Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397.

61 Another relevant section in the Police Service Act is s83, which provides:

"83 Police powers

A police officer has the powers, privileges and duties of a constable at common law or under any other Act or law."

I am not aware of "any other Act" that has any relevant bearing on the duties of a constable at common law, although there is a considerable amount of legislation, including the Code, that deals with particular powers and duties of police officers. I should say that I do not read the reference to "any other Act" as implying that a police officer's duty could not be found in the subject Act.

62 None of the requirements detailed in the Police Service Act, s42 or the State Service Act, s9, are expressly stated to be duties, although they are expressed in terms that are commonly used to impose duties. With reference to the Police Service Act, s42(4) and the State Service Act, s9(7), it is significant that the requirement as to confidentiality there enunciated is not absolute, but discretionary, in the sense that it calls for an assessment of whether or not the disclosure of information is appropriate. In Zierk (supra) at pars20 and 22, Warren CJ drew a distinction between a legal duty which is mandatory and a functional duty of office which involves an element of discretion. It is clear that a breach of the requirement as to confidentiality is a breach of the code of conduct in each of the Acts and attracts the consequences there provided for. However, to construe such a breach as a breach of duty that exposes a person subject to either Act, who is also a public officer, to criminal prosecution is a significant impost. The code of conduct in the State Service Act applies to all employees in the State Service and for the purposes of that code this includes officers, s13(16). Although it may be that many officers in the State Service are public officers within the meaning of that term in the Code, many, if not all, employees are not. There would be an element of inequity in an outcome that elevated a breach of the code of conduct to a breach of duty with criminal consequences where the person in breach also happened to be a public officer.

63 The element of inequity just adverted to draws attention to a weakness in the proposition that, for the purposes of the Code, s110, as well as other Code provisions, the codes of conduct in the Police Service Act and the State Service Act impose duties on all persons subject to them who happen to be public officers. Take for example the defendant's position as the Secretary of the Department of Police and Emergency Management. If the code of conduct in the State Service Act, s9, imposes duties on all who are subject to it, how can it be said that they are duties imposed on the defendant's office? As pointed out in par40 of these reasons, the duty to keep secret information referred to in the Code, s110, is one that is imposed on a public officer by reason of the public office held by that person. A similar weakness would be present if it was alleged that a doctor or a lawyer who had breached the duty of confidentiality that attaches to those fiduciary positions was thereby in breach of the Code, s110, because that doctor or lawyer also happened to hold a public office. It would only be when the public office held by that doctor or lawyer, as distinct from that person's professional position, attracted the duty of confidentiality that was breached, that there could be a breach of the Code, s110.

64 Another concern I have with the proposition that the disciplinary codes impose duties of a nature that if breached expose a public officer subject to either of the codes, to criminal consequences, is best illustrated by the State Service Act, s9(2) and (3). If the proposition that has been advanced is correct, then these provisions impose duties on those covered by that Act to:

•

act with care and diligence; and

•

treat everyone with respect.

To my mind it is inconceivable that Parliament intended that a person, subject to that code of conduct who happened to be a public officer, who wilfully breached duties such as these, could be the subject of a prosecution pursuant to the Code, s115, for wilfully and without lawful excuse omitting to do any act which it was his or her duty to do as a public officer. In saying this, I am not overlooking the requirement for the Attorney-General's consent to a prosecution under that provision. I should also say that I recognise that it is open to conclude that some provisions in the codes of conduct impose duties which, if breached by a public officer, would expose that person to criminal consequence, whilst others do not. However, the need to accept that this is so compounds the difficulty of establishing what was intended in relation to each provision, and suggests that it was not intended that any of them should be elevated to the level that if breached there could be a criminal, as distinct from a disciplinary, consequence.

65 Returning to the requirement as to confidentiality contained in the Police Service Act, s42(4) and the State Service Act, s9(7), it is obvious that the discretionary nature of that requirement is essential in order for those subject to it to function. This is particularly so in the case of a police officer in view of the many different and conflicting factors that bear on the appropriateness of a police officer's disclosure of information. It is to be remembered that police officers are expected to play a role in relation to many matters other than criminal conduct, for example public emergencies, public events, traffic, fires, fatalities, and missing persons. Focussing on criminal conduct, in some instances it may be appropriate to widely publish information as to the circumstances of a crime that is likely to be committed or has been committed, as well as witnesses, persons of interest, and the like, whilst in other instances it might be highly inappropriate to do so. Between these extremes there are any variety of situations in which it could be said to be appropriate, indeed essential, to disclose information, or portions of information, to a particular person or persons. Information is crucial to policing and few positions involve such a wide variety of circumstances in which it is necessary to assess the appropriateness of the disclosure of information. In many instances it may be open to argue that for one reason or another a disclosure is inappropriate and in breach of the requirements of s42(4). It would be a significant step to expose a police officer to criminal consequences for such a breach. As was said in Zierk (supra) by Warren CJ at par33:

"33 Confidentiality and disclosure of information by police officers is an issue confronted by all jurisdictions and usually involves a conflict of duties and rights. For example, in cases involving the disclosure of personal information of convicted sex offenders, the duty to protect the public conflicts with the right of the offender to live undisturbed having served the sentence imposed. In cases involving domestic violence and the removal of children from their home, the duty to protect the child conflicts the right of the parent to know the child's whereabouts. In police operations involving informants, the duty to prevent crime and apprehend offenders conflicts with the duty to protect the informant from harm. Each of these situations deals with whether in the circumstances disclosure of the information is required or appropriate. Most deal with sensitive information that will bring harm of some kind to another if disclosed, or not, as the case may be."

66 In a different but related context, courts have, on a number of occasions, considered whether a civil duty of care sounding in damages should be recognised with respect to particular conduct of police officers, prosecutors, prison officers, and the like. Elguzouli-Daf v Commissioner of Police of the Metropolis [1994] EWCA Civ 4; [1995] QB 335, involved claims that the Crown Prosecution Service owed the claimants a duty of care that rendered that Service liable for the negligence of officers who failed to act with reasonable diligence and expedition. One claim related to the period that a claimant had been held in custody in consequence of the delay of the Service in processing and communicating the results of forensic scientific evidence. The court refused to recognise that a duty of care was owed in those circumstances. That decision was referred to in Cran v NSW [2004] NSWCA 92, a case which dealt with a claim for damages on the basis that police and officers of the Office of the Director of Public Prosecutions had breached a duty of care by neglecting to ensure the prompt analysis of items suspected of being prohibited drugs. The delayed analysis established that they were not. In that case, at pars71 - 73, Ipp JA observed:

"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."

"63 Regrettably for the appellant in the unfortunate circumstances that were inflicted upon him, I consider that on present authority, the greater public interest accorded unimpeded investigation by Police and, so far as relevant, the DPP in carrying out its prosecutorial function, precludes any duty of care to the appellant. The current state of the law, and the policy which underlies it, gives paramount weight to those considerations even overriding the factors of vulnerability and entire dependency. .. [T]here is no bright line between the functions of disclosure and investigation, or between administrative and investigative tasks. Their efficient performance may be put at risk by the very prospect of civil action designed to provide sanctions against inefficiency; that, any rate, is the policy consideration reinforcing the immunity."

68 Other instances of unsuccessful endeavours to persuade the Court to recognise the imposition of a novel duty of care on police officers or prosecutors are; Courtney v State of Tasmania [2000] TASSC 83 and Batchelor v State of Tasmania [2005] TASSC 11; (2005) 13 Tas R 403.

69 I have been assisted in my consideration of this matter by the decision in Zierk which related to an unsuccessful effort to prosecute a police officer for disclosing to a friend charged with a speeding offence information from the Victoria Police Manual relating to speed detection devices. The charge was placed pursuant to the Police Regulation Act 1958 (Vic), s127A(1), which at the time provided:

"Any member of the police force who publishes or communicates, except to some person to whom he is authorised to publish or communicate it, any fact or document which comes to his knowledge or into his possession by virtue of his office and which it is his duty not to disclose shall be guilty of an offence against this Act and liable to a fine of not more than 20 penalty units."

70 The key source of the duty not to disclose relied upon by the Crown came from the Manual which stated that "[e]mployees must not release any information, including documents, that come to their knowledge or possession by virtue of their employment, except where the release or communication of that information is authorised by: legislation and/or Victoria Police policy". The Manual had statutory backing in that the Chief Commissioner was empowered to make standing orders for the general administration of the police force and to give instructions for the effective and efficient conduct of its operation. Warren CJ at par25 found that there was a discretionary element to the application of the Manual and that the extracts relied upon by the prosecution did not purport to create a duty of non-disclosure. Whilst I have been assisted by this decision, I recognise that the circumstances of that case are far from being on all fours with the circumstances of the case before me, and that different outcomes have been the result or subject of other cases involving the disclosure of confidential information. See, for example, Grant v Headland (1977) 17 ACTR 29, Cortis v R (supra), Johnston v Director of Public Prosecutions (supra), Director of Public Prosecutions (Vic) v Marks [2005] VSCA 277, Kessing v R [2008] NSWCCA 310, and R v Goreng-Goreng [2008] ACTSC 74.

71 Unlike Zierk, none of these authorities addresses the considerations that are before me in any detail, if at all. Marks was a plea of guilty to a common law offence of misconduct in a public office. In Cortis the focus of the court's attention was on whether the duty covered facts in a document which were known to the world at large. Grant v Headland involved a charge of attempting to communicate "prescribed information" in breach of the Crimes Act, s79(3). That decision relates to provisions that are in quite different terms to those that are relevant to the Code, s110. Johnston and Goreng-Goreng involved the Crimes Act, s70(1), and Kessing involved subs(2) of that section. In Kessing it was either conceded or assumed that the accused was under a duty not to disclose the information, as no attention was given to that issue. In Johnston it was not contested that the accused was under a duty not to disclose the information. The Crimes Act, s70(1), provides:

"(1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence."

72 Self evidently this provision is not confined in its application to a public officer, but relates to a Commonwealth officer. That term is defined in wide, but precise, terms. It includes a person appointed or engaged under the Public Service Act 1999 (Cth) and specifies that for the purposes of the Crimes Act, s70, identified classes of persons, such as employees of the Australian Postal Corporation, are Commonwealth officers. That express link indicates that the legislation governing persons covered by the definition will detail when and if they are subject to a duty not to disclose information. In Goreng-Goreng the accused was an Australian Public Service employee under the Public Service Act (Cth) ("an APS employee") and, as such, a Commonwealth officer. There are considerable similarities between that Act, s13, which details the APS code of conduct, and the State Service Act (Tas), s9, and the Police Service Act (Tas), s42. The Public Service Act (Cth), s13(3), provides that an APS employee must comply with any conduct requirement that is prescribed by the Regulations. The Public Service Regulations 1999 (Cth), reg2.1, provides:

"Duty not to disclose information (Act s 13)

(1) This regulation is made for subsection 13 (13) of the Act.

(2) This regulation does not affect other restrictions on the disclosure of information.

(3) An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee's employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs.

(4) An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee's employment if the information:

(a) was, or is to be, communicated in confidence within the government; or

(b) was received in confidence by the government from a person or persons outside the government;

whether or not the disclosure would found an action for breach of confidence.

(5) Subregulations (3) and (4) do not prevent a disclosure of information by an APS employee if:

(a) the information is disclosed in the course of the APS employee's duties; or

(b) the information is disclosed in accordance with an authorisation given by an Agency Head; or

(c) the disclosure is otherwise authorised by law; or

(i) is already in the public domain as the result of a disclosure of information that is lawful under these Regulations or another law; and

(ii) can be disclosed without disclosing, expressly or by implication, other information to which subregulation (3) or (4) applies.

(6) Subregulations (3) and (4) do not limit the authority of an Agency Head to give lawful and reasonable directions in relation to the disclosure of information.

Note Under section 70 of the Crimes Act 1914, it is an offence for an APS employee to publish or communicate any fact or document which comes to the employee's knowledge, or into the employee's possession, by virtue of being a Commonwealth officer, and which it is the employee's duty not to disclose."

73 Putting aside the heading and footnote to the regulation (Acts Interpretation Act 1901 (Cth), s13(3)) it is not difficult to follow why it was accepted that reg2.1 imposed a duty of confidentiality on an APS employee for the purposes of the Crimes Act (Cth), s70(1). The hearing in Goreng-Goreng proceeded on that assumption The purpose of the hearing was to deal with an application to exclude evidence of reg2.1 from the hearing on grounds that included the constitutional guarantee of freedom of political communication. In the course of considering, and dismissing, that application, Refshauge J said of that Act, s13, that its subsections imposed duties on the conduct of APS employees. That statement, in the context of that legislation and the issue before the court in Goreng-Goreng, does not assist me in the resolution of the issues that are before me. Neither the Police Service Regulations (Tas) nor the State Service Regulations (Tas) contain any regulation similar to reg2.1, which was the subject of Goreng-Goreng and that regulation expressly applied to all of one of the classes of persons specified by the Crimes Act to be subject to s70(1).

74 I was also referred to the decision in Deacon v Australian Capital Territory [2001] ACTSC 8, where Higgins J dealt with the Public Sector Management Act 1994 (ACT), s9, on the basis that it imposed a duty not to disclose information on public employees but held the information in question was not covered by that provision as it was not confidential information. This decision did not assist me in the resolution of the issues that are before me.

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:

"This Part provides for a Code of Conduct in relation to complaints, integrity testing, financial statements and alcohol an drug testing. The focus of the code of conduct provisions is on behaviour management - as compared to the adversarial system that exists under the current Act. The Part applies to the Commissioner, police officers, trainees, and junior constables."

76 Questions of policy and the like are not however determinative of the meaning of a statutory provision. This must be derived from the words used in the provision in question in the context of the legislation containing it. Where the meaning of a provision is ambiguous or doubtful, and a construction that has been advanced would give it a penal impact, it used to be that such a provision should be construed strictly. However, as Gibbs J said in Beckwith v R [1976] HCA 55; (1976) 135 CLR 569, at 576:

"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams [1935] HCA 62; (1935) 53 CLR 563, at pp 567-568; Craies on Statute Law, 7th ed (1971), pp 529-534. The rule is perhaps one of last resort."

I have not found it necessary to resort to this rule. My reading of the Police Service Act, s42(4) and the State Service Act, s9(7), in the context of the Act containing the particular provision and against the background of the matters I have mentioned, satisfies me that neither provision is intended to impose the duty upon which the Crown seek to rely, Neither provision imposes on persons covered by the Act containing it, and who are also public officers, a duty to keep information secret within the meaning of that term as used in the Code, s110.

A common law duty in the circumstances of this case

77 As noted in par31 of these reasons, in the period of in excess of a millennium since the office of constable was recognised, the common law has not imposed a generally applicable duty of confidentiality on constables in particular, or public officers in general. However, the Crown contends that by reason of the recognised common law duties imposed on police officers that are set out in par3 of these reasons, this Court should find that the defendant was subject to a duty to keep secret the information in question. It is submitted that in the circumstances of this case it should be held that this duty is a subsidiary duty to the applicable recognised common law duties. In support of this submission, the Crown relies on the following passage from the decision in Zierk, where Warren CJ at pars34 - 37, said:

"34 ... The existence of a duty of non-disclosure may be clear, on the facts of a given case, where the disclosure of the information bears sufficient connection to another duty of office.

35 For example, if a member comes into possession, by virtue of being a member, of information that a search warrant is soon to be executed at the premises of an acquaintance on a suspicion of stolen property and the member disclosed this information to the acquaintance, such a disclosure would be in conflict with the duty of the member to prevent crime and apprehend offenders and a duty of non-disclosure would arise.

36 However, if a member comes into possession of a document pertaining to the handling of weapons and is not authorised to disclose it, the effect of the disclosure may be relevant to whether the duty arises. If the disclosure would impede the detection, investigation or prosecution of criminal acts, or place members at risk, a duty of non-disclosure would arise. Conversely, if the disclosure would ensure adherence to safety requirements to prevent injury to members in the performance of their police functions, a duty of non-disclosure would not arise.

37 As a matter of logic and common sense, there must be situations almost daily where a member is not expressly authorised to release information but is not under a duty of non-disclosure. A member staffing the local police station must give out information regularly that he or she is unlikely to have received authority to disclose. Standard operational information, such as contact details for victims' assistance schemes or even the opening times of the station, could not be said to be within the member's duty of non-disclosure."

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:

"These regulations in nominating the vehicle which has another vehicle on its right as the give way vehicle are undoubtedly salutary and their breach is deservedly marked with criminal penalties. But they are not definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves: nor is the breach of such regulations conclusive as to the performance of the duty owed to one another or in respect of themselves. The common-law duty to act reasonably in all the circumstances is paramount."

79 As long ago as 1783 in R v Bembridge 3 Doug (KB) 327 at 332, Lord Mansfield said, when concluding that a public officer was indictable for the offence of breach of trust, that:

"The law does not consist of particular cases but of general principles, which are illustrated and explained by these cases."

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.

81 With reference to the recognised common law duties of a police officer relied on by the Crown, I consider that it is going too far to say that a police officer should obtain "all possible" information regarding criminal offences which have been committed. I would express that duty as the need to obtain all information reasonably required and available regarding offences. As to the circumstances at the time when the defendant made the disclosures that are the subject of the charges, I will address them in more detail when I consider the question of breach. My position is that, regardless of whether the duty claimed is described as a primary or a subsidiary duty, I am unable to derive from the recognised legal duties referred to and the circumstances of this case, a duty as contended for by the Crown. I am unable to find that the defendant in his office as Commissioner of Police was subject to a common law duty of secrecy referable to the information in question.

82 I will address the question of breach on the basis that, contrary to the conclusion I have reached, either or both of the offices occupied by the defendant were subject to a duty to keep secret the information, which was imposed by the statutory provisions referred to or the common law. As the matter has been argued before me, that duty would reflect and would not be more onerous than the relevant statutory provisions. It would accordingly be a duty that the defendant "maintain appropriate confidentiality" in relation to the information (Police Service Act, s42(4), and the State Service Act, s9(7)), save that he could disclose it "to some person to whom he is authorised to publish or communicate the same" (the Code, s110). Although I appreciate that the issues of appropriateness and authority are not mutually exclusive and may overlap, for my purposes they can be addressed separately.

83 I deal first with the issue of appropriateness. To establish its case on a charge, the Crown would need to prove beyond reasonable doubt that the disclosure that is the subject of the charge was inappropriate. The Crown says each disclosure was inappropriate as each related to an allegation about the commission of a crime and was made before that allegation had been investigated.

84 Principles fundamental to the investigation of criminal conduct include:

•

preparing an investigation plan and following that plan;

•

not alerting suspects to the fact of an investigation;

•

maintaining confidentiality over the investigation;

•

not releasing information to suspects without consultation with the investigating officers; and

•

not releasing information to suspects unless there is a strategic reason for doing so, for example where a telephone intercept is in place, or where surveillance operations are in place.

85 The premature or untimely provision of information to suspects provides an opportunity for, amongst other things:

•

the destruction of evidentiary material;

•

the fabrication of evidence such as the falsification of records;

•

the risk of collusion between or with suspects and witnesses;

•

the risk of witnesses being intimidated or influenced; and

•

the thwarting of effective telephone intercepts or surveillance.

86 The allegation was of a deal between Mr Green, Mr Estcourt and the Premier; they were the suspects. The disclosures told the Premier about the allegation and police investigation and it was almost inevitable, as happened, that by reason of the disclosures the other suspects would be told of these matters. In these circumstances the Crown contends that the disclosures were not appropriate.

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.

88 There are no doubt many other points that could be made by both sides to this argument. I do not need to reach a conclusion on the issue of appropriateness as it is a question of fact for a jury and on this issue it cannot be said that the prosecution can clearly be seen to be doomed to fail.

89 To establish its case on a charge, the Crown would need to defeat an assertion that the defendant was authorised to disclose the information that is the subject of that charge to the person or persons to whom it was disclosed. It is arguable that what I have said understates the Crown's obligation in relation to the issue of authority. R v Galvin [1987] 2 All ER 851 dealt with an appeal against a conviction under the Official Secrets Act 1911 (UK), s2(2). An issue that arose under that provision was whether the disclosure that was the subject of the charge was authorised. In allowing the appeal, the Court of Appeal in effect held that the onus was on the prosecution to prove beyond reasonable doubt that the disclosure had not been authorised. In this case the Crown asserts that the onus of proof as to authorisation is on the defendant, as the Evidence Act 2001, s142A(2), provides that if a defendant relies on an "exemption, exception, proviso, condition, excuse or qualification, the [burden of] proof lies on the defendant". If that provision applies, then pursuant to that Act, s141(2), the defendant must prove authorisation on the balance of probabilities. As the question of which party bears the onus of proof referable to authorisation has no impact on the determination I am required to make, it is not necessary for me to resolve this question.

90 Senior counsel for the defendant submits that the defendant was obliged to disclose the information in question to the Minister for Police and the Premier, in part by reason of the State Service Act, ss7 and 8, and other provisions. I reject this submission. Whilst I accept that consistent with the defendant's obligations as both the Secretary of the Department of Police and Emergency Management and the Commissioner of Police, it was appropriate for him to communicate with members of the Government, in particular, the Minister for Police and the Premier, I am not persuaded that he was under an obligation to provide the information in question; this was a matter as to which he had a discretion.

91 The sources of the authority for a disclosure that is referred to in the Code, s110, is not specified and could be many and varied dependent upon the public office concerned. As to a police officer, one obvious source for an authorization is the Commissioner of Police. At the relevant time the defendant held that office. It is an office that dates back to the Metropolitan Police Act 1829 (UK) which heralded Sir Robert Peel's introduction of a police force in London. In Commissioner of Police of the Metropolis ex parte Blackburn (1968) 2 QB 118 at 135-136, Lord Denning MR said of the office that its constitutional status had never been defined, either by statute or by the courts, and went on to detail the duties of the office in terms that do not conflict with the duties relied on by the prosecution in this case. His Lordship also made observations about the independence of the office, and those observation have not passed without criticism; see the Governance of Police (1986) by Laurence Lustgarten at 64.

92 Whatever may be the status of the office of Commissioner of Police in England and Wales, its status in Tasmania is basically clear. The office was introduced into this jurisdiction in 1890 by an amendment to the Police Regulation Act 1865. This was a precursor to the centralisation of the control of police in Tasmania under a Commissioner of Police that was effected by the Police Regulation Act 1898. Prior to this, Hobart and Launceston, and some municipalities, had each controlled their own police force. The Police Regulation Act 1898, s8, provided:

"Commissioner of Police

8 The Governor may appoint a Commissioner of Police, who shall, under the direction of the Minister, and subject to the provisions of this Act, have the control and superintendence of the police force."

93 The Police Service Act 2003, s6(1), provides that the Commissioner of Police is to be appointed by the Governor; and as to the Commissioner's responsibilities, s7 provides:

"7 Responsibilities of Commissioner

(1) The Commissioner, under the direction of the Minister, is responsible for the efficient, effective and economic management and superintendence of the Police Service.

(2) Matters for which the Commissioner is responsible include, but are not limited to, the following:

(a) determination of the organisational structure of the Police Service;

(b) determination of the number, type and location of police stations and other buildings and structures used for the purposes of the Police Service;

(c) determination and allocation of duties within the Police Service;

(f) training, education and development programs to ensure efficient and effective performance of duties;

(g) the establishment of internal grievance-resolution procedures.

(a) issue orders, directions, procedures and instructions for the efficient, effective and economic management and superintendence of the Police Service; and

(b) do anything else necessary or convenient for the efficient, effective and economic management and superintendence of the Police Service."

94 From the outset, the regulations made pursuant to the Police Regulation Act 1898 emphasised the control that the Commissioner of Police held over the police in relation to all matters, including the disclosure of information. For example, the _Police Regulations_1898, reg3, provided:

"3 His office [that is, the office of Commissioner of Police] is the channel for the whole correspondence connected with the Police Force of the State, and the diffusion of information and communication generally, as regards crime and all matters of Police."

95 Subsequent similar regulations are the Police Regulations 1939, reg16, the Police Regulations 1958, reg10(1), and the Police Regulations 1974, reg10(1). In some instances where a regulation dealt with the disclosure of information, specific reference was made to the need for the approval of the Commissioner of Police for a disclosure. For example, the Police Regulations 1974, reg47(1)(d)(viii), provided that it was a breach of the regulations if a police officer "without the authority of the Commissioner communicates to any news media or any unauthorised person, any matter connected with the force". The Police Service Regulations 2003 which currently apply, contain no similar requirement. The current requirements in relation to all aspects of policing are meticulously detailed in the Police Manual, as to which the Police Service Act 2003, s93, provides:

"93 Police Manual

(1) The Commissioner must cause a document known as the Police Manual to be published.

(2) The Police Manual is to contain -

(a) any orders, directions, procedures and instructions issued by the Commissioner as the Commissioner considers appropriate; and

(b) any other matter the Commissioner considers appropriate."

96 That Act, s42(3)(a), requires a police officer to comply with all orders in the Police Manual. A cursory perusal of the Manual (it runs to 846 pages) emphasises the extent of the Commissioner's authority over police. In some instances specific authority is given to an officer other than the Commissioner to approve the disclosure of particular information, for example, the Manual para4.6.7, which authorises a Divisional Inspector to give directions as to whether certain information about a missing person should be disclosed. There is nothing in the Manual or elsewhere in any applicable legislation to suggest other than that the ultimate authority in relation to virtually all matters concerning the Police Service, and more relevantly, the disclosure of information, is the Commissioner of Police. Senior counsel for the Crown has not submitted otherwise.

97 To establish its case on any one charge the Crown must prove beyond reasonable doubt that the defendant made the disclosure that is the subject of that charge. Plainly if he made the disclosure, he authorised the making of the disclosure. Whilst it is perhaps conceivable that in some circumstances it could be demonstrated that a person who made a disclosure did not authorise its making, there is nothing in the circumstances of this case that might so indicate.

98 The prosecutor submitted that the defendant could not approve inappropriate disclosures and that the disclosures in question were not appropriate. Whilst it is open to a jury to find that any one of the disclosures made was not appropriate, I reject the proposition that the defendant did not have the authority to authorise disclosures that others might conclude were inappropriate. 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. In a literal sense that authority is only necessary where a disclosure is inappropriate. If the disclosure is appropriate, there is no need for it to be authorised. Patently in circumstances where others might conclude that a disclosure was inappropriate, a police officer who had the authority of the Commissioner of Police to make a disclosure would not have to justify his conduct by proving that the disclosure was appropriate, it would be sufficient to rely on the Commissioner's authority. There is no reason why the same does not apply where the Commissioner is the person who made the disclosure. He can rely on his authority to make disclosures.

99 For these reasons I am of the view that the Crown case is doomed to fail on the issues of duty and authorisation.

100 It is ordered that the prosecution of the defendant on the indictment be permanently stayed.