R v Hanlon - [2022] SADC 85

District Court of South Australia
(Criminal)
R v HANLON
[2022] SADC 85
Reasons for Ruling of his Honour Judge Heffernan
26 July 2022
CRIMINAL LAW - PROCEDURE
This is a ruling on a defence application to issue a subpoena.
The defendant was charged in the Magistrates Court inter alia with abuse of public office. At committal, the prosecutor conceded 'no case to answer' on the basis of the inability of the prosecution to prove a particular matter. The charges were dismissed.
Some months later, and after the matter had been raised in Parliament, the DPP filed an ex-officio Information against the defendant. That Information charges similar offences against the same broad factual matrix relied on for the Magistrates Court charges.
The defendant applied for a subpoena to issue to the DPP for:
1. Documents relating to communications between certain officers of the DPP from the time of committal until the date of the filing of the ex officio Information.
2. Documents relating to communications between the DPP and the Attorney-General or her office about the filing of the ex officio Information.
Application dismissed.
Criminal Law Consolidation Act 1935 (SA) ss 140 and 251(1); Criminal Procedure Act 1921 (SA) s 126, referred to.
Australian Competition and Consumer Commission v Pratt (2008) 250 ALR 661; The Commissioner of the Australian Federal Police v Magistrates' Court of Victoria [2011] VSC 3; Australian Federal Police v XYZ (2015) 123 SASR 274, considered.

R v HANLON
[2022] SADC 85
Criminal Jurisdiction

The defendant is charged with:
First Count
Statement of Offence
Abuse of Public Office. (Section 251(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
John Francis Hanlon, being a public officer, between 8^th day of September 2017 at the 22^nd day of February 2018 at Adelaide and other places improperly exercised power or influence that they held by virtue of his public office, with the intention of securing a benefit for himself.
Second Count
Statement of Offence
Dishonest Dealings with Documents. (Section 140 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
John Francis Hanlon on the 13^th day of October 2017 at Adelaide and other places, dishonestly engaged in conduct by falsifying a document, namely a Reconciliation of Foreign Currency Spent and producing that document knowing it to be false intending to deceive another or persons generally and by those means to benefit himself.
Third Count
Statement of Offence
Dishonest Dealings with Documents. (Ibid).
Particulars of Offence
John Francis Hanlon between the 8^th day of September 2017 and the 22^nd day of February 2018 at Adelaide and other places, dishonestly engaged in conduct by falsifying a document, namely a Travel Plan and producing that document knowing it to be false intending to deceive another or persons generally and by those means to benefit himself.
He has filed an amended draft subpoena in support of his application for directions seeking permission to issue a subpoena to the Director of Public Prosecutions (DPP). The amended draft subpoena seeks the following documents from the DPP:
1.complete and unredacted copies of all documents (whether created electronically or others) and including any emails and/or other forms of electronic communication, notes, files, reports and/or letters evidencing or recording communications between either of Mr Longson or Mr Slocombe and any other representative of the Office of the Director of Public Prosecutions between 11 June 2021, being the date on which the Defendant served his submissions to the Magistrates Court entitled “Defendant Hanlon’s Further Submissions” and September 2021, being the date the ex officio Information was filed, relating to the question of whether the evidence to be relied upon by the Director was sufficient to establish that the Defendant was not attending to any Renewal SA business while he was in Berlin and therefore whether the Defendant had a case to answer on the Germany counts; (category 1)
2.complete and unredacted copies of all documents (whether created electronically or others) and including emails and/or other forms of electronic communication, notes, files, reports and/or letters evidencing or recording communications between any representative of the Office of the Director of Public Prosecutions and any representative of the Office of the Attorney General between 18 June 2021 and 7 September 2021, being the date the ex officio Information was filed relating to the question of whether an ex officio Information might be laid against the accused Hanlon notwithstanding the discharge at Committal. (category 2)
The Director opposes the application with respect to both categories.
Background
This matter has a somewhat complicated background, and I will set out only those matters relevant to the determination of this application. The chronology of events is largely undisputed and has been set out in detail in the affidavit of the defendant’s solicitor.[1]
[1] Affidavit Matthew Selley dated 20 October 2021 (Selley).
On 21 July 2014 the defendant was appointed as Chief Executive (CE) of Renewal SA for a period of five years. Renewal SA is a trading name used by the Urban Renewal Authority, which is a statutory corporation. Renewal SA acts as the property developer for the State Government, facilitating urban development opportunities for the private sector through access to government land holdings.[2]
[2] Selley p 305.
In 2018, the former Attorney-General, the Honourable Vickie Chapman MP (the Attorney-General) passed on some limited information provided to her in her capacity as Attorney-General to the Office of Public Integrity (OPI). That information concerned the defendant, who was at that time the CE of Renewal SA and Ms Georgina Vasilevski, who was at that time the General Manager of People and Place Management for that organisation. The information provided by the Attorney-General, which was in the form of a letter sent to her, was later cross checked by the Independent Commission Against Corruption South Australia (ICAC) against information contained in a separate complaint made to the OPI by an employee of Renewal SA. The name of that employee has been redacted from documents disclosed by ICAC. The information related primarily to a trip alleged to have been taken by the defendant and Ms Vasilevski to the Melbourne Cup in 2017 (the Melbourne trip), funded by Renewal SA, but alleged not to have been work-related. The information was assessed by ICAC as raising potential issues of misconduct.
It should be noted that until the Honourable Stephan Knoll MP (Mr Knoll) was asked about this matter in Parliament on 27 September 2018, there is nothing before me to suggest that once she referred the letter to the OPI, the Attorney-General had any role in either the assessment of it by the OPI or the later ICAC investigation or that she otherwise took any action with respect to it.
ICAC commenced an investigation into the Melbourne trip and other related allegations. On 24 September 2018, ICAC search warrants were executed on the offices of Renewal SA and the defendant’s home address. His Renewal SA issued mobile phone was seized.
On 25 September 2018, the Minister for Housing and Urban Development, who was responsible for Renewal SA, suspended the defendant’s employment.
On 27 September 2018, the defendant was interviewed under caution by Detective Bridge, an ICAC officer. It was on that day that Mr Knoll was asked before a Parliamentary Committee whether there was an integrity investigation being conducted in relation to the defendant and Ms Vasilevski.
Also on that day, apparently in response to the questions put to Mr Knoll, the Attorney-General made a statement to the media indicating that she would make an enquiry with ICAC as to whether any more information was available about that matter. By implication, her comments appeared to confirm that an investigation was on foot. Later that day, the Commissioner retrospectively approved the Attorney-General making those comments.
On 9 November 2018, the defendant’s solicitor wrote to Detective Bridge providing an explanation for the Melbourne trip.
In December 2018, ICAC wrote to the defendant’s solicitor advising that it had referred a brief to the DPP with the recommendation that the defendant be charged with Abuse of Public Office.
By 18 January 2019, the DPP had referred the brief back to ICAC for further investigation.[3]
[3] Selley at [20].
In April and May 2019, counsel and the solicitor for the defendant communicated with an officer of the DPP seeking an opportunity to discuss the investigation in light of having been advised by the DPP that it was in receipt of additional evidence from ICAC.
On 12 June 2019, Detective Bridge contacted the defendant’s solicitor requesting that the defendant participate in an interview under caution in relation to a trip taken by the defendant to Berlin (the Berlin trip) in September 2017.
On 28 June 2019, the defendant participated in an interview with Detective Bridge under caution and in the presence of his counsel and solicitor.[4] The defendant’s solicitor provided Detective Bridge with 12 documents and a statement signed by the defendant.
[4] Selley at [23].
On 16 August 2019, the defendant’s solicitor provided an officer of the DPP with a letter, purporting to be ‘without prejudice’, setting out the defendant’s responses to what was known to him about the Melbourne trip and Berlin trip allegations.
On or about 4 February 2019, Ms Vasilevski was arrested and charged with one count of abuse of public office and three counts of acting dishonestly as a corporate agency executive. She was bailed to appear in the Adelaide Magistrates Court on 11 March 2020.
The defendant, who was out of the country on 4 February 2019, was arrested and charged on his return to Australia on 5 March 2020, having reported with his solicitor to the City Watch House. This occurred as a result of an agreement reached between his solicitor, the DPP and ICAC.
The defendant was bailed to appear in the Adelaide Magistrates Court on 11 March 2020.
An information was filed in the Adelaide Magistrates Court charging the defendant and Ms Vasilevski with the following offences:
IN RELATION TO JOHN FRANCIS HANLON ONLY
Count 1
Between the 7^th day of September 2017 and the 21^st day February 2018 at ADELAIDE, BERLIN and other places, being a public officer, improperly exercised power or influence that he had by virtue of his public office with the intention of securing a benefit for himself, the benefit being money and air fares in the amount of $20,469.72.
Section 251(1)(a) of the Criminal Law Consolidation Act 1935.
This is a Major Indictable Offence.
Count 2
Between the 18^th day of September 2017 and the 13^th day of October 2017 at ADELAIDE deceived another, namely Renewal SA, and by doing so dishonestly benefitted himself, the benefit being money in the mount of 1555 Euros ($3,196.39 AUD).
Section 139(a) of the Criminal Law Consolidation Act 1935.
This is a Minor Indictable Offence.
Count 3
Between the 7^th day of September 2017 and the 21^st day of February 2018 at ADELAIDE deceived another, namely Renewal SA, and by doing so dishonestly benefitted himself, the benefit being air fares in the mount of $17,273.33.
Section 139(a) of the Criminal Law Consolidation Act 1935.
This is a Minor Indictable Offence.
IN RELATION TO JOHN FRANCIS HANLON ONLY
Count 4
Between the 31^st day of October 2017 and the 30^th day of November 2017 at ADELAIDE, MELBOURNE and other places, being a public officer, improperly exercised power or influence that he had by virtue of his public office with the intention of securing a benefit for himself, the benefit being accommodation, dining and taxi expenses in the amount of $3,521.32.
Section 251(1)(a) of the Criminal Law Consolidation Act 1935.
This is a Major Indictable Offence.
Count 5
Between the 9^th day of November 2017 and 10^th day of November 2017 at MELBOURNE, ST KILDA, SOUTH YARRA or other places, being a senior official, acted dishonestly in the performance of his duties.
Section 16(1) of the Public Sector (Honesty and Accountability) Act, 1995.
This is a Minor Indictable Offence.
Count 6
On or about the 30^th day of November 2017 at ADELAIDE deceived another, namely Renewal SA, and by doing so dishonestly benefitted himself, the benefit being dining expenses at the Longrain Restaurant and Donovan’s Restaurant, Melbourne and accommodation expenses at the Grand Hyatt Hotel, Melbourne in the mount of $3464.10.
Section 139(a) of the Criminal Law Consolidation Act 1935.
This is a Minor Indictable Offence.
IN RELATION TO GEORGINA VASILEVSKI ONLY
Count 7
Between the 31^st day of October 2017 and the 5^th day of January 2018 at ADELAIDE, MELBOURNE and other places, being a public officer, improperly exercised power or influence that she had by virtue of her public office with the intention of securing a benefit for herself, the benefit being air fares, accommodation and taxi expenses in the amount of $1,032.60.
Section 251(1)(a) of the Criminal Law Consolidation Act 1935.
This is a Major Indictable Offence.
Count 8
On the 29^th day of November 2017 at ADELAIDE, being a corporate agency executive, acted dishonestly in the performance of her duties.
Section 20(1) of the Public Sector (Honesty and Accountability) Act, 1995.
This is a Minor Indictable Offence.
Count 9
On the 22^nd day of December 2017 at ADELAIDE, being a corporate agency executive, acted dishonestly in the performance of her duties.
Section 20(1) of the Public Sector (Honesty and Accountability) Act, 1995.
This is a Minor Indictable Offence.
Count 10
On or about the 5^th day of January 2018 at ADELAIDE, being a corporate agency executive, acted dishonestly in the performance of her duties.
Section 20(1) of the Public Sector (Honesty and Accountability) Act, 1995.
This is a Minor Indictable Offence.
IN RELATION TO JOHN FRANCIS HANLON ONLY
Count 11
Between the 8^th day of November 2017 and the 20 September 2018 at ADELAIDE dishonestly engaged in conduct by possessing, producing or using a document, namely a Renewal SA travel booking and claim form, knowing the document to be false and intending to deceive Renewal SA, or people generally, or to facilitate deception of another, or people generally, by someone else and by those means to benefit himself.
Section 140(4) of the Criminal Law Consolidation Act 1935.
This is a Summary Offence.
Count 12
Between the 1^st day of May 2018 and the 24^th day of September 2018 at ADELAIDE dishonestly engaged in conduct by possessing, producing or using a document, namely a Grand Hyatt Hotel invoice, knowing the document to be false and intending to deceive Renewal SA, or people generally, or to facilitate deception of another, or people generally, by someone else and by those means to benefit himself.
Section 140(4) of the Criminal Law Consolidation Act 1935.
This is a Summary Offence.
Count 13
Between the 1^st day of May 2018 and the 24^th day of September 2018 at ADELAIDE dishonestly engaged in conduct by possessing, producing or using a document, namely a Renewal SA memorandum, knowing the document to be false and intending to deceive Renewal SA, or people generally, or to facilitate deception of another, or people generally, by someone else and by those means to benefit himself.
Section 140(4) of the Criminal Law Consolidation Act 1935.
This is a Summary Offence.
Count 14
Between the 18^th day of September 2018 and the 24^th day of September 2018 at ADELAIDE dishonestly engaged in conduct by possessing, producing or using a document, namely an email from Hyatt Hotels, knowing the document to be false and intending to deceive Renewal SA, or people generally, or to facilitate deception of another, or people generally, by someone else and by those means to benefit himself.
Section 140(4) of the Criminal Law Consolidation Act 1935.
This is a Summary Offence.
Count 15
Between the 18^th day of September 2018 and the 24^th day of September 2018 at ADELAIDE dishonestly engaged in conduct by possessing, producing or using a document, namely a post-it note, knowing the document to be false and intending to deceive Renewal SA, or people generally, or to facilitate deception of another, or people generally, by someone else and by those means to benefit himself.
Section 140(4) of the Criminal Law Consolidation Act 1935.
This is a Summary Offence.
The information was signed by Ms McDonald SC (as she then was) in her capacity as Acting Director of Public Prosecutions.
In the usual course, the DPP filed numerous affidavits relating to the allegations with respect to both trips.
On or about 3 June 2020, the following occurred in the Adelaide Magistrates Court before Mr Smart:
1.A charge determination was made.
2.An answer charge date was set for a date in September 2020.[5]
[5] Due to issues of disclosure and other procedural matters, the answer charge date was moved back on a number of occasions.
3.Permission was given to issue subpoenas to ICAC.
The disclosure process continued after this date and included disclosure of items by ICAC additional to those sought by the subpoenas. The disclosure process continued until 26 November 2020 and the answer charge date was reset for 17 February 2021.
On 27 January 2021, the defendant filed a Notice pursuant to s 112 of the Criminal Procedure Act requesting permission to cross examine seven witnesses on the committal.[6]
[6] Selley at [34]; later expanded to seek cross examination of an 8^th witness.
First prosecution outline of submissions
On 5 February 2021 the DPP filed an outline of submissions (prosecution outline of submissions ‘POS’) responding to the s 112 Notice.
In the POS, the prosecution inter-alia, submitted with respect to the Berlin trip, that the defendant deceived Renewal SA by misrepresenting that his trip to Berlin between 19 and 30 September 2017 was for Renewal SA business whereas it was in fact a personal holiday, as evidenced by him being accompanied by his wife and youngest daughter. It was alleged that the trip was planned to coincide with the due date of his eldest daughter giving birth. She lived in Berlin with her husband. It was asserted that on the basis of the defendant’s misrepresentation, Renewal SA paid for his return business class flights to the value of $14,076.94, train tickets to the value of $542.49 and provided him with a €1555 EUR ($3,196.39 AUD) advance for Renewal SA expenses which he might incur.
It was alleged that on his return to Adelaide, the defendant signed a ‘Reconciliation of Foreign Currency Spent’, confirming that he had used all of the advance. No receipts or explanation were provided to support the reconciliation.
It was further alleged that sometime between 6 December 2017 and when it was finally submitted five months later in February 2018, the defendant signed an itinerary for his time in Germany certifying it to be his travel record whilst in Germany. It indicated that he had also travelled to Munich, Stuttgart and Frankfurt for meetings with stakeholders and tours of factories and development sites. The evidence filed by the prosecution was alleged to prove that he did not visit Munich or Stuttgart or leave Berlin during the trip. The evidence was alleged to prove that some of the persons whom the itinerary indicated the defendant had met with, were not in Germany during September 2017 and that one of the persons had retired by 2017.
Central to the prosecution theory of the evidence were the following contentions which it alleged were established on the evidence:
1.That the defendant did not have sufficient time to visit the sites he claimed to have visited as and when he claimed.
2.That the defendant had retrospectively conducted Internet searches to identify sites which he could claim to have visited.
3.That the majority of the sites the defendant claimed to have visited had no record of him or any representative of Renewal SA having attended.

On 17 February 2021, in a hearing before Mr Smart, the prosecutor undertook to provide particulars with respect to the elements of each charge against the defendant, indicating the evidence it relied on with respect to each element of each offence.
On 23 March 2021, the DPP filed and served a supplementary prosecution outline of submissions (Supplementary POS).
The following is a summary of the particulars provided in the Supplementary POS:
1.Count 1 Abuse of public office
The prosecution had laid a representative count against the defendant for his conduct on the Berlin trip.[7] It alleged that he had exercised influence he had as CE of Renewal SA to seek approval of the Minister for Housing and Urban Development (The Honourable Stephen Mullighan MP) to travel overseas. He was alleged to have represented that the travel was for Renewal SA business. This relates to a minute he signed on 22 August 2017, setting out the purpose of travel being for the State Government Europe Business Mission (the Mission). The influence was alleged to have been exercised for the purpose of securing a financial benefit for himself namely business class flights, train tickets and spending money to the total value of $17,815.82 paid for by Renewal SA. It was alleged that it was improper for the defendant to use flights, train tickets and spending money in Berlin when he otherwise failed to conduct any business on behalf of Renewal SA whilst in Germany.[8]
[7]     Selley p 408.
[8]     Selley p 409.
2.Count 2 Deception (in the alternative to Count 1)
It was alleged that the defendant committed this offence by certifying a document headed ‘2017 European Business Mission’ on 13 October 2017 (after he had returned from Germany) which claimed that the full €1555 Euros advance ‘were spent as part of the business trip’.[9] It was alleged that the effect of certifying the legitimacy of having spent that money is that the defendant received a personal benefit equating to $3,196.39.
The prosecution alleged that the nature of the deception was the representation to the Minister for Housing and Urban Development and to Renewal SA that the funds provided to him would be used by him as expenses incurred during government business travel.[10] The prosecution alleged that that representation was clearly established by the minutes of a meeting, prepared on behalf of and signed by the defendant in his capacity as CE of Renewal SA. The representation was alleged to have been made to the Minister for Housing and Urban Development during the meeting on 22 August 2017. It was alleged that those minutes clearly set out the purpose of travel as being for the Mission.
[9]     Selley p 410.
[10] Selley p 411.
3.Count 3 Deception (also in the alternative to Count 1)
The prosecution alleged that the certification in writing on 20 November 2017 (after he had returned from Germany) by the defendant of a Renewal SA credit card reconciliation amounted to a deception, to the effect that the cost of train tickets in Berlin to the value of $542.49 was for a trip of an official business nature in the course of his employment as the CE of Renewal SA. It was alleged that the defendant’s deceptive conduct resulted in a detriment to Renewal SA in the form of a financial loss in the amount of $542.49.[11] The prosecution submitted that the evidence could establish that the tickets were not used by the defendant, who remained in Berlin at the relevant time.
[11] Selley p 412.
4.Count 4 Abuse of public office
This Count was particularised as being a representative charge against the defendant for his alleged conduct on the Melbourne trip which included the use of public funds for accommodation, dining and transport whilst there. It was alleged that the defendant had exercised his power or influence as CE:
(i)     in using his Renewal SA ‘Fast Card’ for transport to and from a personal lunch at a restaurant in St Kilda,
(ii)    certifying that expenses incurred by him on his Renewal SA issued credit card for the Melbourne trip were legitimate business expenses including accommodation and dining expenses, and
(iii)   having Renewal SA staff book accommodation for him at the Grand Hyatt in Melbourne for the relevant dates. The prosecution asserted that it could prove that those expenses were not for Renewal SA business purposes and that the defendant received a direct financial benefit in the amount of $3,560.14. It was asserted that it was objectively improper for the defendant to have used public funds for the Melbourne trip because no government business took place. Further, it was objectively improper for him to falsify government records or direct that government records be falsified with respect to that trip.
5.Count 5 Acting dishonestly in the performance of public duties (this charge was alleged in the alternative to count 4)
The prosecution alleged that on 9 November 2017 the defendant used a Renewal SA Fast Card to pay for two cab fares to and from a restaurant during the Melbourne trip. On 9 February 2018, the defendant signed an ‘Agreement and Acknowledgement by Cardholder’ form with respect to his use of the card on 9 February 2018. Whilst that form actually related to a replacement card for the card used in Melbourne, it contains an agreement that the defendant would not use the card for other than official Renewal SA purposes and would use it only in accordance with Renewal SA’s established procurement policies. It was submitted that it was objectively dishonest for the defendant to have used a Renewal SA resource to travel to and from a restaurant in Melbourne for private purposes.[12]
[12] Selley p 415.
6.Count 6 Deception (this charge was alleged in the alternative to count 4)
On 30 November 2017 the defendant signed a Renewal SA ‘Corporate Credit Card Reconciliation’ form for the period of 16 October to 15 November 2017 which encompassed, presumably, inter alia, the total costs incurred on his corporate credit card during the Melbourne trip. It is alleged that as a result, the defendant obtained a direct financial benefit in the amount of $3,558.43.
For this charge it appears that the prosecution was alleging that the defendant made a misrepresentation about a past or present fact or state of affairs. The Supplementary POS alleged that in signing the reconciliation form, the defendant certified that purchases represented in the summary on the form were correct as per the bank statement for his card and that all goods and services had been received and were of an official business nature. In doing so, the prosecution alleged that the defendant misrepresented that certain expenses incurred during the Melbourne trip were incurred for official Renewal SA business and were of an official business nature. It was alleged that an officer of Renewal SA was deceived by the form and as a result relied on the defendant’s signature on it to justify paying the debt on the credit card.[13]
[13] Selley p 416.
It is not necessary for the purpose of these reasons to summarise the particulars of the remaining Magistrates Court counts against the defendant.
It can be seen from the above that, going into the oral committal process, the charges as particularised were not without some difficulties.
On 24 March 2021, before Mr Smart, the prosecution indicated that it would not oppose the calling of certain witnesses on an oral committal.
On 11 June 2021, the solicitor for the defendant filed and served further written submissions, which sought to demonstrate inconsistencies between the particulars provided and submissions previously made by the prosecution and asserting that the defendant had no case to answer.[14]
[14] Selley, Item 20 pp 441-661.
On 17 June 2021, an officer of the DPP, Mr Longson, wrote to the defendant’s solicitor indicating that the prosecution did not oppose the calling of any of the witnesses sought for oral examination.
The Oral Committal
The oral committal commenced on 18 June 2021 before Mr Smart.
On that day the Honourable Stephen Mullighan MP (Mr Mullighan), Dr Matthew Sorell and Ms Elizabeth Kelly were examined.
Mr Stephen Mullighan’s evidence[15]
[15] Selley, Tab 23 - the transcript of this evidence.
Mr Mullighan gave evidence about the role played by the defendant as CE of Renewal SA and as a Board Member of the Riverside Authority.[16] He said it was not unusual for the CE of a government department to travel interstate and or overseas for the purpose of business connected to their role. He had travelled for such purposes with the defendant. Interstate travel was at the discretion of the CE but overseas travel required Ministerial approval.
[16] Selley pp 691-693, 697-698.
On 22 August 2017 he granted approval (the approval) for the defendant to travel overseas as a delegate on the State Government Europe Business Mission (the Mission). The Mission had a set itinerary, but the defendant sought and was given approval for a proposed additional travel plan, which included other locations.
Overseas travel was consistent with the role of the defendant, to inform himself about infrastructure issues, if he had the approval of the Minister.[17]
[17] Selley pp 697-700.
The defendant was ultimately not able to travel and take part in the Mission. This was because he was requested by Mr Mullighan to remain in Adelaide in order to assist with issues arising from a decision by Cabinet to terminate negotiations with a private consortium for the redevelopment of the old Royal Adelaide Hospital site. The plan was to convert the project to a public project managed by Renewal SA.[18]
[18] Selley pp 700-701, 704-5.
Mr Mullighan said it was customary for itineraries for overseas travel to be presented for approval in draft form. This is because it was commonly understood that individual items in an itinerary could be subject to change without much notice whilst an approved traveller was overseas. No further approval for an amended itinerary was required in such circumstances.[19] Implicit in this answer was that where an item on an itinerary had been cancelled, the overseas traveller had discretion to add new items consistent with the business of Renewal SA if desired.
[19] Selley pp 703-704.
Mr Mullighan told the court that the defendant’s travel to Berlin, subsequent and separate to the Mission, came within the approval given by Mr Mullighan on 22 August 2017.[20]
[20] Selley pp 704 -705.
Conference between prosecution and defence
Counsel for the prosecution and both defendants discussed the implications of the prosecution particularisation of the charges in light of the evidence, at some point during the committal. [21]
[21] The affidavit deposes that this meeting came after the evidence of Ms Kelly, but it reads as if the meeting in fact occurred after the evidence of Mr Mullighan.
The details of this conference are set out in the affidavit of the defendant’s solicitor as follows:[22]
[22] Selley at [56].
At the conclusion of the oral evidence of Ms Kelly, Mr Longson requested that the court adjourn briefly to afford him an opportunity to speak with defence counsel and myself. Mr Edwardson and I, together with Mr Whitington QC and Mr Lister for the defendant Vasilevski, met with Mr Longson and Mr Slocombe in a meeting room at the Adelaide Magistrates Court. Mr Longson said that he did not consider that the director could resist that the court find that the defendant had no case to answer. This discussion occurred in the context where there were a number of further prosecution witnesses to be made available for cross examination at a later date. Mr Longson queried whether the defence wished to wait for all of the other witnesses to be presented before making an application that the court find that there was no case to answer or whether the application would be made that day upon resumption following the conferral of counsel. Mr Edwardson QC asked Mr Longson whether, in the event the defence made the application immediately, it would be conceded by Mr Longson on behalf of the Director and Mr Longson confirmed that it would be so conceded. …
Submission of no case to answer
After the evidence of Mr Mullighan, counsel for the defendant made a submission of no case to answer. The basis of that submission was that it was essential for the prosecution case that it be able to prove beyond reasonable doubt that no work of any description had been done by the defendant on either the Melbourne trip or the Berlin trip. It was submitted that on the evidence, this could not be proved with respect to either trip and that this was a fatal flaw to both the main charges and the offences charged in the alternative.
The prosecutor conceded that the submission with respect to matters to be proved was correct and that the prosecution could not prove that no work had been done with respect to either trip. The prosecutor was asked by the magistrate if he needed an opportunity to take instructions on the matter and he indicated that he did not. When asked by the magistrate, he conceded that there was no case to answer on any of the charges (the concession).[23]
[23] Selley p 710.
Events post committal
Events occurring after the oral committal and prior to the laying of the ex officio Information in this court are relevant to the defendant’s submission that, taken in combination with the handling of this matter by the prosecution up to the point at which it conceded no case to answer, the circumstances are sufficiently unorthodox as to support their application for the subpoena.
Less than a week after the matter was no cased in the Magistrates Court, the Attorney-General was again asked about it in Parliament. On 22 June 2021, she was asked whether she had made a complaint to the OPI about the conduct of the defendant and Ms Vasilevski and whether she informed the anticorruption branch of SAPOL about that matter.[24]
[24] Selley p 712.
In addition, she was asked if the government would pay the legal expenses of the defendant and Ms Vasilevski.[25] The Attorney-General responded that there was no application before her for such payment but that she had in any event been informed that the DPP was reviewing the outcome in the Magistrates Court ‘including as to what other action is taken in relation to it’.[26] The Attorney-General was then asked if she had made any direction or request of the DPP in relation to the matter. The Attorney-General responded:
[25] Selley p 713.
[26] Selley p 713.
In relation to the action that concluded in the Magistrates Court last week, I have made an enquiry in relation to my department via the chief executive in relation to getting a briefing from the DPP as to what action he is proposing in relation to this matter, because, as the member may be aware, the fact that a matter may have concluded in the Magistrates Court doesn’t prohibit the DPP, independent as the DPP is, from taking some other action in another court. So they are matters which, I am advised, at this point he is considering……. So in the sense that there has been an enquiry, yes, there has been an enquiry via my chief executive to enquire if I can have a briefing from the DPP’s office. But I am aware that the matter is under consideration.[27]
[27] Selley p 714.
The following day, in answer to a further question, the Attorney-General said:
… as I indicated to the House yesterday, I have made a request to be updated from the DPP as to what action is being taken further in relation to that matter. Of course, just so the member appreciates, but for the benefit of all members, the prosecution of these matters is ultimately a matter for the Director of Public Prosecutions not the ICAC . The ICAC, of course, as is publicly known in that case, conducted an investigation and referred the matter for prosecution, so it is under the conduct of the Director of Public Prosecutions, and so I do not make any comment in relation to the magistrate’s determination last week.[28]
[28] Selley p 715.
Later, the Attorney-General was asked to clarify whether she had requested a briefing from the DPP. Her response was:
As I confirmed, I have made enquiry with the office of the DPP in relation to that matter to seek a briefing. I haven’t received anything further from the director. The request was made through the Chief Executive of the Attorney Generals Department. If I am unable to provide any further information when I receive that, I can do so. At this stage, I haven’t received anything.[29]
[29] Selley p 717.
On 2 July 2021, the solicitor for the defendant received a letter from the DPP confirming that the possibility of proceeding on an ex-officio Information was being considered. The defendant’s solicitor spoke with Ms McDonald SC on 28 July 2021, who confirmed that she had not had an opportunity to consider whether the director would take that course of action.
On 2 August 2021, the Attorney-General made a comment in Parliament suggesting that the DPP had not yet considered what action to take with respect to this matter.
On 11 August 2021, Ms McDonald SC wrote to the defendant’s solicitor indicating that it would be she who made the decision as to the filing of an ex officio Information and inviting a written submission from the defendant about that matter. A detailed submission was sent to the DPP by the defendant’s solicitor on 16 August 2021.
On 31 August 2021, the defendant’s solicitor wrote to the Crown Solicitor’s office seeking reimbursement for legal expenses the defendant had incurred, pursuant to provisions of the ‘Treasurers Instruction 14: Ex Gratia Payments and Legal Bulletin’.
On 6 September 2021 the solicitor for the defendant received a letter signed by Ms McDonald SC advising that a decision had been made to lay an ex officio Information in the District Court charging the defendant with abuse of public office and, in the alternative, with two counts of dishonestly dealing with documents. That Information was laid on 7 September 2021.
As can be seen from the recital of the current charges at the beginning of these reasons, they relate solely to the Berlin trip. The affidavit of the defendant’s solicitor sets out a comparison of the charges on the ex officio Information with the matters previously charged in the Magistrates Court.[30] I have considered that comparison.
[30] Selley at [76].
Submissions of counsel
It is not necessary for me to summarise the respective submissions of the parties as to the principles relating to the issue of subpoenas.
Defence
In the defendant’s submission, in filing the ex officio Information, the prosecution seeks either to resile from the concession made at committal or to argue that they are not bound by it. The prosecution disputes the accuracy of that contention. The defendant submits, and I accept, that for the purpose of this application, I can proceed on the basis that his solicitor’s account of the discussions with the prosecution prior to and at the time of the oral committal are not disputed and by implication, accepted by the prosecution.
It was submitted that I should infer that the concession made by the prosecution was made with instructions. In part, the defendant submits that the materials sought in category one would shed light on the true position if the prosecution were to contend, in this application or the forthcoming stay application, that the prosecutor who made the concession at committal did so without authority. In the event of that case, it was argued that it would be unfair for the court to entertain such a submission without knowing the prosecutor’s communications with his instructor and supervisor(s). As will be seen, the prosecution has not made the submission that the committal prosecutor acted without instructions. It has declined to inform the court about that matter. It asserts rather that it has ‘recast’ the charges. In other words, it says that the charges now before me are materially different to those before the magistrate. In the defendant’s submission, that fact does not undercut the value of the documents sought for the purpose of the stay application. He submits that proof the concession was made with instructions will still add weight to the submission that given so, the laying of the ex officio Information is an abuse of process.

Central to the defendant’s submission on the stay application will be the contention that the charges on the ex officio Information arise from the same facts relied on for the Magistrates Court charges. In that regard, it was submitted that each of the charges on the ex officio Information can only be proved if the prosecution proves beyond reasonable doubt that the defendant did not perform any Renewal SA business whilst in Germany.
It was submitted that the prosecutorial duty of disclosure of information relevant to the defence of Mr Hanlon would in these circumstances prevail over legal professional privilege and in the absence of a waiver of privilege, the court should impute a waiver to ensure a fair trial. That was especially so, it was submitted, because privilege cannot be maintained where a party directly or indirectly puts into issue the substance of the privileged communication. It is not apparent to me that the prosecution has put into issue the substance of the communications and I will return to that matter later in these reasons. On the defendant’s submission, the prosecution is ‘putting in issue the context, purpose, and effect of (and/or the authority to make) the concession made by Mr Longson at committal’ and for that reason, legal professional privilege cannot be used as a cloak to refuse disclosure of material relevant to the prosecutor’s state of mind when he made the concession.
Counsel for the defendant submitted that no privilege could attach to any communication between the Attorney-General and the DPP.
It was submitted that on the face of the committal transcript, an experienced prosecutor made a conscious concession that the charges as particularised could not succeed and an inference can be drawn that the ex officio Information represents an attempt, by the senior prosecutor responsible for providing instructions to Mr Longson, to work around that concession after pointed enquiries had been made of the Director by the Attorney-General. The possibility of the asserted link between the Attorney-General’s interest in the matter and the exercise of the prosecutorial discretion to lay the ex officio Information is central to the application for both categories of document.
Prosecution
The submissions of the prosecution can be distilled to the following. The charges on the ex officio Information are materially different to those laid in the Magistrates Court, albeit laid against the same broad substratum of facts. It is well established that communications within the office of the DPP can attract legal professional privilege. That privilege will be asserted in the event that I decide to grant the application. The prosecution disputes that it is necessary for it to prove with respect to each of the current charges that the defendant attended to no Renewal SA work when in Germany. It was submitted that it is not on the cards that the documents sought will assist the defendant in his stay application. With respect to both categories of documents sought, the application amounts to no more than a fishing expedition. It was also submitted that whether the concession at committal was made with or without consent was irrelevant. It declined to comment on that matter. It was further submitted that the assertion with respect to the Attorney-General was without foundation.
Consideration
The power to issue a subpoena is dealt with by s 126 of the Criminal Procedure Act which provides as follows:
126—Subpoenas
(1)A subpoena may only be issued in relation to proceedings for an indictable offence in a superior court—
(a) by the registrar of the superior court if—
(i) the subpoena is only issued for the purpose of compelling a witness to give oral evidence in the proceedings; or
(ii) each party to the proceedings and each person to whom the subpoena will apply (if granted) consent to the grant of the subpoena; or
(b) by a master or judge of the superior court on an application under this section.
(2)A master or judge must not grant an application under subsection (1)(b) unless satisfied that it is in the interests of justice for the subpoena to be issued.
I was advised by the parties that to the best of their knowledge, there has been no superior court decision which considers the term ‘in the interests of justice’ in the context of s 126(2). That accords with my own enquiries. I accept the joint submission of both parties that the parameters of the test for whether the issue of a subpoena will be ‘in the interests of justice’ will be informed by the body of common law which has arisen with respect to the setting aside of subpoenas. Before a subpoena can be issued under s 126, the defendant bears the onus of establishing that there is a legitimate forensic purpose in obtaining the material sought. The question of legal professional privilege with respect to category 1 does not arise unless I find that it is in the interests of justice for the subpoena to be issued.
The defendant seeks the materials in both categories in support of an impending application for a stay of proceedings on the ground that the filing of the ex officio Information amounts to an abuse of the court’s process. The more common purpose for issuing a defence subpoena in a criminal matter is to obtain material of benefit to assist in the cross examination of the prosecution witnesses.
I accept that the subpoena process can properly be used to seek materials relevant to the issues arising on an application for a stay of proceedings.[31] The well-established test requires that it must be ‘on the cards’ that the documents sought will materially assist the applicant for the subpoena. The relevant principles of that test were succinctly summarised by Forrest J in Australian Federal Police v Magistrates Court of Victoria:[32]
[31] Australian Competition and Consumer Commission v Pratt (2008) 250 ALR 661. (Pratt’s case.)
[32] [2011] VSC 3 at [28].
The following principles apply in determining whether a party is entitled to access documents the subject of a subpoena:
(a) it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;
(b) the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;
(c) the applicant for the witness summons must also satisfy the court that it is “on the cards”, or that there is a “reasonable possibility”, that the documents sought under the subpoena “will materially assist the defence”.
(d) a “fishing expedition” is not a legitimate forensic purpose and will not be permitted;
(e) the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.
(f) a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied.
(g) in criminal proceedings a “more liberal” view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.
(h) where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.
(Citations Omitted)
That summary was adopted by Parker J in Australian Federal Police v XYZ.[33]
[33] (2015) 123 SASR 274.
In considering the submissions, I have kept in mind that the liberty of the defendant is at stake.
In considering whether the documents sought have apparent relevance to the issues arising on the stay application by having the potential to demonstrate the male fides alleged by the defendant, it is necessary to first identify what the male fides or improper purpose is said to be.
As I understand the defence submission, the male fides arises because the Attorney-General improperly influenced the DPP to file the ex officio Information for the collateral purpose of forestalling the application for costs by the defendant. Further, to ensure that the defendant was prosecuted for his conduct. The payment of costs might have been a matter of political embarrassment or inconvenience to her. Further, the DPP has allowed itself to be influenced by the representations or pressure applied by the Attorney-General to file an ex officio Information. On that further theory, the DPP has filed the ex officio Information not because it believes this is a matter of public importance which warrants the charges laid, but because it joined with the asserted motive of the Attorney-General or was cowed into submission by representations made by her or on her behalf.
The male fides asserted by the defendant is said to have arisen between the finding of no case to answer and up to and including the date on which the ex officio Information was laid. I have taken that from the range of dates specified in categories 1 and 2 of the documents sought. But logically, if the allegation of male fides asserted against the DPP is correct, it would presumably still exist, because the DPP persists with the prosecution.
There is no suggestion that the concession made by the prosecutor at the committal was for the ulterior purpose of reinstituting the prosecution by way of ex officio Information. At the time the concession was made, no further prosecution was contemplated. In that respect, these proceedings can be distinguished from the circumstances of Pratt’s case which was relied on by the defendant. In that matter, the court found it was open to draw an inference that the civil proceedings had been conducted and finalised by the prosecuting agency with an undisclosed ulterior motive. After resolving the civil proceedings on an agreed factual basis, the prosecuting authority then charged the defendant with an offence arising from one of the agreed facts. It was the fact that an inference could be drawn that the defendant had been inveigled to act to his detriment by making an admission and in a way he would otherwise not have done, had the true intention of the prosecuting agency been known to him, which provided much of the foundation for the legitimate forensic purpose. One legitimate forensic purpose was to obtain documents which had a bearing on the undisclosed motive. A second was to obtain documents relevant to the credit of a potential prosecution witness who had been party to the events summarised in the agreed fact.
In this matter, the acquiescence of the prosecutor to the no case submission did not cause the defendant to suffer a detriment or act to his detriment. Nor is Mr Longson a potential witness in any trial on the charges in this court. Nor would Ms Chapman (as she now is), or any officer of the DPP.
I do not accept the submission that an inference can be drawn that the Attorney-General was directly or indirectly involved in the decision to file the ex officio Information. She was at pains to point out to Parliament that the DPP was independent and that any decision was for the DPP. Further, that the Attorney-General made the enquiry of the DPP through the CEO of her department is not unusual or remarkable. That is so for the following reasons. It is obvious that this was a matter which had assumed a very public profile. The dismissal of the charges was inevitably going to result in media attention and public comment. The Attorney-General had previously been taxed on this matter in Parliament. The operation of ICAC and the effectiveness of its’ investigations is a matter of considerable public importance. It has been a matter of public debate for some years. It is a matter directly relevant to the Attorney-General’s portfolio.
If any inference is to be drawn from the enquiry made of the DPP, it is that given all of the above, the Attorney-General anticipated that the matter was likely to be raised in Parliament or the media. Further, given the unusual circumstances of the charges being dismissed, she thought it appropriate that she be informed about what had happened and what the implications of that might be. In addition, as can be seen from the chronology, at the time the enquiry was put in motion, the Attorney-General had not received a request for payment of the defendant’s costs relating to ICAC (to which he would be entitled) or the proceedings in the Magistrates Court (which were discretionary). In other words, neither the fact that an enquiry had been made or the timing of it lend support to the defence theory that something untoward was going on. Whilst it can be assumed that she was aware of potential costs implications in these circumstances, there is no evidence that the Attorney-General had a direct role in the decision to file the ex officio Information. I am not prepared to draw an inference that she was indirectly involved in that decision or that she raised the costs implications with the DPP. To be clear, I am not satisfied that those inferences are open. It would be speculation to conclude that the Attorney-General played either a direct or indirect role in the decision to file the ex officio Information or otherwise applied pressure in some way to the DPP to ensure that end was achieved. As noted by Forrest J, more than a mere allegation of male fides is required. In Pratt’s case an inference of male fides was open. In this matter, there is no such inference open. It cannot be said that it is on the cards that the documents sought in category 2 will materially assist the defendant on the stay argument. The application by the defendant for the documents in category 2 is, in my view, a fishing expedition designed to ascertain whether there are any documents or records which will assist him to explore his theory of male fides on the part of the Attorney-General and the DPP.
An inference which is open from the filing of the ex officio Information, is that the decision-maker exercising the prosecutorial discretion concluded that whilst (for whatever reason) the prosecution of the charges in the Magistrates Court had miscarried, on the evidence, charges having a reasonable prospect of conviction could properly be laid in this court.
I am not satisfied that it is in the interests of justice for a subpoena to be issued for the materials sought in category 2.
In some respects, the defendant’s submission with respect to the documents sought in category 1 to the effect that the prosecution has laid charges based on the same facts is akin to a duplicity argument. The difference being that here the focus is on the prosecution being bound by the concession made at committal.
To properly address the defendant’s submissions, it is necessary to cover some matters which will be raised on the application for a stay for abuse of process.
With respect to the documents sought in category 1, it can be acknowledged that the manner in which this matter has progressed is unorthodox. As the prosecution has declined to tell the court whether the concession was made with or without instructions, I have considered the application in light of both possibilities. In either case, the fact remains that the prosecution has focused the new charges on different aspects of the defendant’s conduct. It has laid charges which, on its submission, do not require it to prove the defendant performed no work in Germany. That submission is an indication of the way the prosecution proposes to open and close its case to the jury. If they are wrong about that, the issue can be dealt with ultimately on the stay application or a submission of no case to answer at trial.
The prosecution having determined to present its case on that basis, in my view, no issue is raised about whether it is going back on a concession made at the committal. Nor is it relevant whether those who instructed the prosecutor at committal agreed with the concession. That is so because the ex officio Information contains different charges to the committal Information. Count 1 on the Magistrates Court Information alleges a different actus reus to Count 1 on the ex officio Information. In the first case, the improper exercise of power or influence is said to have occurred in a meeting with Mr Mullighan. The power and influence was directed towards getting approval to go on the Mission. On the ex officio Information, the power and influence are said to have been exercised over Ms C on a different day and in a different way. The effect of the influence was to get her to book his flights.
Count 2 on the Magistrates Court Information (deception) alleges the same overt act as Count 2 on the ex officio Information, namely the certification of the reconciliation form. The elements of the offences are different. An example is that the offence of deception requires the defendant to have deceived another person. The offence of dishonestly dealing with documents merely requires an intent to deceive. It is the creation of the document with the relevant intention rather than its deceptive use which is the gravamen of the offence. Further, the benefit alleged in the Magistrates Court was that the defendant received a benefit (past tense) of $3,196.39.[34] The benefit alleged on the dishonest dealings with documents count is the ability to retain (present tense) the money he had been given.
[34] Selley p 411 at [22].
Count 3 on the Magistrates Court Information relates to different conduct than Count 3 on the ex officio Information. The offences are respectively said to have occurred by the creation of different documents. For reasons I will explain below, it is beside the point that the document alleged to have been falsified in Count 3 on the ex officio Information was to be used to assist in proof of Counts 1, 2 and 3 on the Magistrates Court Information.
That is so, because it is not uncommon for different charges to be laid against the same broad substratum of facts. For example, any fraud prosecution for defalcation against an employer, alleging a lengthy course of conduct, is likely to provide multiple instances of conduct which could be properly charged. Much of the evidence relevant to one count may be relevant to other counts. Where that occurs, it does not necessarily mean that any of the charges is bad for reasons of duplicity. The fact that one charge requires proof of a matter of greater generality (for example: that no work was done on a business trip) does not mean that all possible charges will require proof of the same matter. That could be the case even though much of the evidence was relevant to both charges. The question of whether or not charges are laid on the same facts is determined not by focusing on the overarching facts relevant to all charges but by considering the conduct and evidence asserted in proof of the elements of the individual offences.
In my view, there would have been nothing improper or duplicitous had the prosecution charged on the Magistrates Court Information the abuse of public office alleged with respect to the defendant’s conduct towards Ms C in addition to the conduct alleged to have involved Mr Mullighan. The offence of abuse of public office focuses on the exercise of power or influence. On the scenario above, power or influence were exercised twice, but for a different specific purpose directed towards the same overall end. The fact that much of the evidence would be relevant in proof of both charges does not mean that they are charged ‘on the same facts’.
Further, with respect, I do not accept the submission that the prosecution has put Mr Longson’s state of mind in issue. The defendant has done that. The prosecution has assiduously avoided doing so by formulating its case in a manner which makes the concession irrelevant. The prosecution has presented different charges, on the basis that it will stand by the submission that it is not bound to prove that no work was done in Germany. If the defendant’s submission to the contrary is correct, then the prosecution case may rise or fall on that contention, either on the stay application or on a submission of no case to answer at trial. Either way, in my view it is not on the cards that the material sought in category 1 will materially assist the defendant in presenting his argument on the stay application. I am not satisfied that it is in the interests of justice to give permission to issue a subpoena for the documents sought in category 1.

I dismiss the application.