The King v Gwynne (No 3)
[2023] NTSC 30
•3 April 2023
CITATION:The King v Gwynne (No 3) [2023] NTSC 30
PARTIES:THE KING
v
GWYNNE, Colleen Marie
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21934234
DELIVERED: 3 April 2023
HEARING DATE: 3 March 2022
JUDGMENT OF: Burns J
Children’s Commissioner Act 2013 (NT) s 9(2), s 10, s 49
Criminal Code Act 1983 (NT) s 81(3), s 75C
Evidence (National Uniform Evidence) Act 2011 (NT) s 55, s 56, s 97(1), s 101, s 135(c), s 137
Public Sector Employment and Management Act 1993 (NT) s 3(1), s 29, s 64AHughes v The Queen [2017] HCA 20; IMM v The Queen [2016] HCA 14, referred to.
REPRESENTATION:
Counsel:
Crown:G Wright SC with T Grealy
Accused:P Boulten SC with G O’Brien-Hartcher
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Bowden McCormack Lawyers
Judgment category classification: C
Judgment ID Number: Bur2310
Number of pages: 32
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe King v Gwynne (No 3) [2023] NTSC 30
No. 21934234
BETWEEN:
THE KING
AND:
COLLEEN MARIE GWYNNE
CORAM: BURNS J
REASONS FOR RULING
(Delivered 3 April 2023)
Introduction
On 20 February 2023 I provided the parties with rulings concerning objections raised by the accused to evidence that the Crown proposed leading at her trial. At that time, the accused’s trial was due to commence on 27 February 2023 with an estimated length of 6 weeks. Due to the urgency of the matter, I delivered written rulings accompanied by brief reasons.[1] At that time, I indicated that I would provide more comprehensive written reasons at a later time if necessary.
The need to hear further argument on legal issues meant that the accused’s trial did not commence on 27 February 2023. Instead, a jury was empanelled on 1 March 2023 and the prosecutor embarked upon her opening address. At the conclusion of the Crown’s opening address late on the afternoon of 2 March 2023, senior counsel for the accused raised a question of law regarding the elements of the charge against the accused. Having heard submissions from both the prosecution and the defence, I provided a ruling on the issue on 6 March 2023. As a consequence of this ruling, on 7 March 2023 the Crown determined to call no evidence at the trial and invited me to direct the jury to return a verdict of acquittal. The jury then returned a directed verdict of acquittal.
The Crown then requested that I provide more comprehensive reasons for the rulings that are made on 20 February 2023. The following are my reasons.
The charge
The sole charge against the accused was in the following terms:
That between 1 December 2018 and 15 June 2019 at Darwin in the Northern Territory of Australia, [the accused] being a public officer, intentionally engaged in conduct, namely did take steps to secure the employment of Laura Dewson, which conduct was intentionally arbitrary or an abuse of process, and the said Colleen Gwynne was reckless as to the circumstance of the conduct being prejudicial to the rights of another person and the conduct was improper and engaged in with the intention of obtaining a benefit.
This is a charge contrary to s 81(3) of the Criminal Code Act 1983 (NT) (‘the Code’). It is found in Part IV of the Code which is entitled “Offences against the administration of law and justice and against public authority”. Section 81 provides:
81 ABUSE OF OFFICE – ARBITRARY AND PREJUDICIAL CONDUCT
(1) A public officer commits an offence if:
(a)the officer intentionally engages in conduct; and
(b)the conduct is intentionally arbitrary or an abuse of process; and
(c)the conduct is prejudicial to the rights of another person and the officer is reckless in relation to that circumstance; and
(d)the conduct is improper.
Maximum penalty: Imprisonment for 2 years
(2) Absolute liability applies to subsection 1(d).
(3) A public officer commits an offence if:
(a)the officer intentionally engages in conduct; and
(b)the conduct is intentionally arbitrary or an abuse of process; and
(c)the conduct is prejudicial to the rights of another person and the officer is reckless in relation to that circumstance; and
(d)the conduct is improper.
Maximum penalty: Imprisonment for 3 years
(4) Absolute liability applies to subsection 3(d).
One of the requirements of the offence found in s 81(3) is that the Crown prove that the accused’s conduct was “improper”. This requires consideration of s 75C of the Code:
75C IMPROPER CONDUCT
(1) A person’s conduct is improper if the conduct, in the circumstances, warrants criminal sanction.
(2) The finder of fact must find the conduct improper unless:
(a)the finder of fact is satisfied that:
(i)the conduct is trivial; or
(ii)the conduct has caused only minimal damage to the public interest; and
(b)the finder of fact is satisfied that the conduct, in the circumstances, does not warrant criminal sanction.
(3) In deciding whether a person’s conduct, in the circumstances, warrants criminal sanction, the finder of fact must have regard to the following matters:
(a)if the person is a public officer – whether the person behaved in a way reasonably expected of a public officer;
(b)if the person is not a public officer – whether the person behaved in a way reasonably expected of the person;
(c)whether the person acted in an honest and reasonable belief that the person was lawfully entitled to act in the manner the person acted in the conduct being considered;
(d)the seriousness of the conduct and any result of the conduct;
(e)whether the conduct occurred:
(i)as an isolated incident; or
(ii)as part of repeated similar conduct; or
(iii)as part of a course of conduct.
The Crown’s case
In order to properly understand the Crown’s case, it is necessary to refer to events that occurred prior to the charge period. The accused is the Children’s Commissioner appointed under the Children’s Commissioner Act 2013 (NT) (‘CCA’). The Crown’s case against the accused was that she had engaged in conduct directed towards having a friend, Laura Dewson, appointed as the Assistant Children’s Commissioner because of her friendship with Ms Dewson.
Ms Dewson and the accused had both worked for the Northern Territory Police. The accused was appointed as the Children’s Commissioner on 11 June 2015. Ms Dewson left the employment of the Northern Territory Police in April 2016. On 3 November 2017, the applicant invited Ms Dewson to apply for an AO7 position of Senior Investigation Officer at the Office of the Children’s Commissioner (‘OCC’). The accused sent Ms Dewson an email saying “Laura put in an app for this then I can get you in the door”. The body of the email contained the forwarded email from the NT Government recruitment system for the position. Ms Dewson submitted an application for the position.
Between 9 November 2017 and 21 November 2017 the accused engaged Ms Dewson to conduct consultancy work for the OCC. While Ms Dewson was conducting those consultancy services for the OCC, the accused sent her an email on 16 November 2017 informing her that there were 14 applications for the position of Senior Investigations Officer, presumably including Ms Dewson. The accused asked Ms Dewson to review the applications.
On 21 November 2017, Ms Dewson withdrew her application for the advertised vacancy of Senior Investigations Officer. On 22 November 2017 the accused appointed Ms Dewson to a different Senior Investigations Officer position within the OCC. This position was not advertised and was not subject to merit selection. The Request to Fill Not-Advertised Vacancy noted that the reason the position was not advertised was that the vacancy was for 6 months or less. Under the heading “Justification”, it was stated:
As per the OCC restructure, this position will be amended to an AO7 Senior Investigation officer. Direct appointment to fill the needs of the office until the position has been recruited to. The Commissioner has requested commencement at the highest increment of an AO7.
Ms Dewson was identified as the person to be appointed to the position. The accused was noted on the form as having approved the appointment. Under the heading “Reason person was selected” was written:
Laura has been working as a consultant but has been taking on additional SIO responsibilities due to increased workload of the office.
On the morning of 22 November 2017, the accused sent Ms Dewson an email stating:
Hey Laura I will start involving you in some emails that will assist you in understanding our broader agenda as you transition into the strategic engagement and monitoring. I don’t expect you to be across everything that will provide some good background information.
On 4 December 2017, the accused sent Ms Dewson an email saying:
I will bring you into the loop on matters relating to the SAO1 (Strategic Engagement and Monitoring) role so you are across things to make your transition smoother.
At the time that the accused sent the email on 4 December 2017, the position to which she referred in the email was occupied by a person, CC. That person was occupying the position on contract until 20 December 2017. On the date that CC finished his contract, the accused appointed Ms Dewson to that position. The position was not advertised and Ms Dewson’s appointment was not the subject of a merit-based process of interview. The Request to Fill Not-Advertised Vacancy for the appointment specified that the vacancy was for a period of 3 months. The reason given for not advertising the position was that the vacancy was for 6 months or less. Under the heading “Justification”, it was stated:
As per the OCC restructure, this position will be amended to an SAO1 Manager Strategic Engagement and Monitoring. Direct appointment to fill the needs of the office until the position has been recruited to.
Ms Dewson was identified as the person to be appointed to the position. The accused was noted on the form as having approved the appointment. Under the heading “Reason person was selected” was written:
Laura was initially working with OCC as a consultant and has been filling the role of Senior investigation officer to cover the needs of the office. Laura has all the skills necessary to fill this role until it has been recruited to.
After the contract for the Strategic Engagement and Monitoring role expired, the accused appointed Ms Dewson to a position as a Senior Policy Officer within the OCC. This was a contract position for a period of 6 months. The position was not advertised and there was no merit-based selection process. The reason for not advertising the position was specified as “Vacancy is 6 months or less”. The justification for filling the position without advertising was stated as “Temporary contract until office restructure is completed”.
At this point, the position of Assistant Children’s Commissioner was occupied by NH. She was appointed to that position for a period of six months after a selection process in February 2017. At that time, there was a special measures requirement specified for the position, so that if there was an indigenous applicant who was suitable for the position they would be offered the position before other applicants were considered. At the expiration of the initial six-month appointment, NH’s appointment was extended so that in June 2018 she was still in that role. On 22 June 2018, NH went on maternity leave. On 25 June 2018, the accused appointed Ms Dewson to the SAO2 position of Assistant Children’s Commissioner for a 3 month term. The position was not advertised and was not subject to a merit appointment process.
It was the Crown’s case that in August 2018 a decision was made to advertise the Assistant Children’s Commissioner position as a permanent appointment. Ms Dewson’s contract of appointment as the Assistant Children’s Commissioner was extended for a further period of 3 months from 20 September 2018. The position was not advertised at this time, and there was no merit appointment process. The Request to Fill Not-Advertised Vacancy with regard to this extension stated that the justification was “Contract extension offered to cover recruitment process”.
On 15 August 2018, Ms Dewson in her role as acting Assistant Children’s Commissioner reviewed and amended the job description for the position of Assistant Children’s Commissioner. The accused approved the amended job description later that month. On 29 August 2018 public advertising for the SAO2 position of Assistant Children’s Commissioner commenced. Applications for the position closed on 11 September 2019, at which time there were 24 applicants, one of whom was Ms Dewson. The position was not advertised as subject to special measures. The accused was the delegate holding power to make the appointment.
The accused was initially part of the panel to interview applicants. On 17 September 2018, the accused removed herself from the interviewing panel for the position of Assistant Children’s Commissioner, telling another member of the panel “I have had to make a late decision to remove myself from the panel to remove any perception of bias”. The reconstituted selection panel then shortlisted the applicants for interview. On 20 September 2018 the accused provided a brief to the panel about her perception of the role of the Assistant Children’s Commissioner, and the interviewing panel interviewed the accused for referee checks for both Ms Dewson and NH. On 21 September 2018 the selection panel interviewed Ms Dewson, NH and another applicant, CF. CF was an “outsider”, that is, a person who was not a resident of the Northern territory.
The panel selected CF as the best applicant. Before the accused was informed of this choice, she asked another employee of the OCC, KI, who had acted as scribe to the interviewing panel, the name of the favoured applicant. KI informed the accused that CF had been selected, and that Ms Dewson had not. It was alleged that the accused asked KI to contact the chair of the selection panel and ask him to reconsider the weighting of selection criteria in a way which was likely to advantage Ms Dewson and to disadvantage CF. Although KI agreed to this request, she did not actually contact the chair of the selection panel.
The Crown alleged that on 19 October 2018, KI, at the request of the accused, sent an email to the chair of the selection panel in which she, inter alia, suggested that the selection panel should give more weight to a particular selection criterion. This criterion would have advantaged Ms Dewson and disadvantaged CF. Despite this action, in late October 2018 the selection panel recommended the appointment of CF. The panel rated NH unsuitable for the position.
After the selection committee made its recommendation, the accused emailed the Director of Human Resources in the Attorney-General’s Department, BM, and said:
B do you have anytime today I could seek some advice, I am the delegate for the appointment of a SAO2, I am not comfortable with the selection and seek some expert advice am concerned they have not placed enough eight on the
(As per original)
It was the Crown case that the accused met with BM that afternoon and told him that she felt the selection panel had given priority to selection criteria which didn’t really suit the role and that she was not comfortable with the selection. BM told the accused that the usual process where a delegate feels that there is some issue with a panel’s recommendation is for the delegate to go back to the panel and put the issue to the panel and asked the panel to review the recommendation. This was not done by the accused. In late October or early November 2018, the accused telephoned PH, one of the interview panel, and expressed her dissatisfaction with the panel’s recommendation. The accused engaged a consultant to draft for her a report justifying the appointment of Ms Dewson as Assistant Children’s Commissioner.
Subsequently, the accused, as the delegate holding the power of appointment, overturned the panel’s recommendation and appointed Ms Dewson to the position of Assistant Children’s Commissioner. On 21 November 2018, the Office of the Commissioner of Public Employment received a complaint about the recruitment process and a decision was made to cancel the process and to readvertise the position.
All of the above occurred before the period alleged on the indictment, being the period from 1 December 2018 to 15 June 2019.
On 20 December 2018, the accused extended Ms Dewson’s contract as Assistant Children’s Commissioner. On 11 January 2019, the accused approved a request to fill a new vacancy within the OCC, being a SAO1 position titled “Manager Monitoring Investigations”. Special measures did not apply to that position.
On 15 February 2019, the Department of the Attorney-general engaged a human resources consultant, RB, to review recruitment of Ms Dewson to the OCC. On 20 February 2019, the accused was interviewed by RB and did not disclose any conflict of interest regarding Ms Dewson.
On 4 March 2019 the position of Assistant Children’s Commissioner was readvertised. Special measures applied to the position. NH applied for the position as did Ms Dewson. The accused became a member of the panel interviewing for the position. It was alleged by the Crown that the accused provided a negative and misleading reference to the panel regarding NH with a view to harming NH’s chances of appointment and thereby increasing those of Ms Dewson. In alleging that the accused’s reference was false and misleading, the Crown relied on evidence that on or about 8 March 2019 the accused provided a positive referee report with no weaknesses identified regarding an application by NH for a SAO2 position in the Office of Aboriginal Affairs within the Department of the Chief Minister.
While a member of the selection panel for Manager Monitoring and Investigation position, the accused provided Ms Dewson with a positive reference in support of her application for that position. In late May or early June 2019, the selection panel recommended the appointment of Ms Dewson to that position.
On 14 June 2019, the selection panel for the Assistant Children’s Commissioner position recommended that NH be appointed to that position.
The rulings and my reasons
My rulings were set out under four headings:
· The Francombe evidence.
· The evidence relating to appointments of Ms Dewson outside the charge period.
· The MMI evidence.
· The immunity provisions.
I will retain that format in these reasons.
The Francombe evidence
The Crown proposed leading evidence at the accused’s trial relating to the appointment of Kathryn Francombe to a position in the OCC. Ms Francombe was a long-time friend of the accused. She resided in Adelaide in South Australia. I understand that Ms Francombe did not have a similar relationship with Ms Dewson. Ms Francombe had been employed with Royal Caribbean Cruise Lines International (‘RCCL’) from 2000 to November 2017 and attained the position of Casino Manager. In July 2017, the accused and her partner went on a 7 day Alaskan cruise organised by Ms Francombe with RCCL at a substantial discount which was available to family and friends of RCCL staff.
On 8 August 2018, the accused and Ms Dewson communicated about the job description for a position of Project Officer (Monitoring and Audit) within the OCC (the Project Officer position). Essential criterion 1 was “Knowledge of contemporary challenges and responses to vulnerable children across the spectrum of services”. This position was to address recommendations of the Royal Commission into the Protection and Detention of Children in the Northern Territory. As I understand it, the position was created and tasked with implementing a monitoring scheme for juvenile detention centres.
After approving the job description, the accused forwarded an email to Kathryn Francombe containing the job description for the Project Officer position and asking “can you do this”. On the same date, Ms Dewson sent the job description via email to the OCC Business Manager, with essential criterion 1 being downgraded to a desirable criterion.
At 9:15am on 9 August 2018, Ms Francombe sent an email to the accused stating “Colleen this would be an extraordinary opportunity!”. At 9:30am on the same date, the accused emailed Ms Francombe again asking whether she could do the job, and whether she had a CV. At 2:26pm that afternoon the accused wrote to Ms Francombe stating “Ok if you are serious I want to set up a chat with my Assistant Commissioner to discuss, when you are available, we want to fill this asap”. Ms Dewson was acting in the role at the time. Later that same day, Ms Dewson sent an amended job description to Ms Francombe. It may be inferred that Ms Dewson and Ms Francombe then met, because at 3.08pm that day the accused sent Ms Francombe an email saying “Laura popped her head in, she has put recruitment on hold, you must have impressed her. You can live with me”.
On 10 August 2018, the accused instructed Ms Dewson to contact Ms Francombe to advise her that she had been successful in obtaining the SAO1 position of Project Officer as, due to her friendship with Ms Francombe, the accused wanted to remain removed from the process.
The Crown emphasised that Ms Francombe had no previous government work experience, clearly intimating that Ms Francombe was not qualified for the position of Project Officer and therefore was employed because of her friendship with the accused. I note that the Crown disavowed any suggestion that Ms Francombe’s employment was a direct quid pro quo for Ms Francombe facilitating the cruise for the accused and her partner in July 2017.
On 23 August 2018 Ms Francombe commenced employment at the OCC in the Project Officer position on a 6 month contract.
On 8 November 2018, the accused emailed Ms Dewson, saying “Do you think we should just leave Kathryn at a SAO1 or reduce her to an AO7 for the second half of her contract, do you think the word (sic) she is producing is at level. I am concerned that if it weren’t Kathryn then I would probably do it”.
On 23 November 2018 Ms Francombe’s position was downgraded to an AO7 due to performance issues.
On 22 February 2019 Ms Francombe ceased having any role in the OCC.
The Crown proposed leading the Francombe evidence at the accused’s trial on 3 bases: as tendency evidence, as circumstantial evidence and as evidence of “repeated similar conduct” for the purposes of s 75C of the Code.
To be admissible, evidence must be relevant to proof of a fact in issue in a proceeding.[2] Evidence is relevant if, were it to be accepted, it has the capacity to rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.[3]
Where evidence is sought to be led as tendency evidence, the provisions of s 97(1) and s 101 of the ENULA apply:
EVIDENCE (NATIONAL UNIFORM LEGISLATION) ACT 2011 - SECT 97
The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
EVIDENCE (NATIONAL UNIFORM LEGISLATION) ACT 2011 - SECT 101
Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
The test imposed by s 97(1) is whether the court thinks that the evidence will have significant probative value. In order for evidence to be admissible as tendency evidence, it is not necessary for the proposed tendency evidence to bear a marked similarity to the charged conduct.[4]
The tendencies which the Crown proposed proving by leading the Francombe evidence, in conjunction with the evidence relating to Ms Dewson, was a tendency to act in a particular way, being:
a)to subvert proper processes in Northern Territory Government recruitment actions; and/or
b)to subvert government recruitment processes so as to give preferential treatment to a friend.
The Crown submitted that the proposed tendency evidence related to proof of a fact in issue in the proceeding, described by the Crown as:
Whether between 1 December 2018 and 4 June 2019, Colleen Gwynne had an honest and reasonable belief in regards to her powers and duties as an employee of the Northern Territory public service.
A number of things are apparent from the above. First, that the “fact in issue” identified by the Crown is a reference to s 75C (3)(c) of the Code. Secondly, that the description of the “fact in issue” is imprecise and vague as regards identifying the particular powers and duties concerned and the nature of the accused’s belief referred to. Thirdly, the use of the word “subvert” carries with it, in the present context, connotations of acting corruptly.[5] The word “subvert” was clearly deliberately chosen by the drafter of the Tendency Notice and was intended to convey more than the notion of “failing to comply with”.
In Hughes, the majority of the High Court (Kiefel CJ, Bell, Keane and Edelman JJ) said regarding the assessment of whether proposed tendency evidence has significant probative value, at [41]:
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
Later, at [64], the majority continued:
The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant.
The first tendency alleged by the Crown, being a tendency to subvert proper processes in Northern Territory Government recruitment actions, is expressed at such a high level of generality that proof of the tendency could not be significant in establishing the accused’s guilt of the precise charge laid against her. I would add that this would be even more so if the word “subvert” was intended to mean nothing more than “failing to comply with”.
The second tendency alleged by the Crown, being a tendency to subvert government recruitment processes so as to give preferential treatment to a friend, possesses slightly greater particularity than the first alleged tendency. The second alleged tendency is, nevertheless, still expressed at a high level of generality. It was difficult to understand how proof of the second alleged tendency, drafted as it was, could have had significance in establishing whether, between the dates specified, the accused had an honest and reasonable belief regarding her powers and duties as an employee of the Northern Territory public service.
It is now fairly clear that what the Crown was attempting to do was to allege that the accused had a tendency to employ people within the OCC based solely or predominantly on her friendship with them. The alleged tendencies as drafted did not directly raise that issue. Instead, the tendencies were drafted at a very high level of generality such that proof of the tendencies could provide little, if any, support to the Crown’s proof of the charge against the accused.
In any event, there were significant factual differences between the events described in the Francombe evidence and the events directly relating to the charge against the accused. The appointment of Ms Francombe, initially as an external consultant to the OCC and later as an SAO1 and then as a AO7, were all short term appointments which occurred in the context of a heavy workload and a need for urgency in addressing recommendations of a Royal Commission. There is no suggestion in the Francombe evidence that the accused ever intended or sought to have Ms Francombe appointed as a permanent employee of the OCC.
While I was obliged to take the proposed tendency evidence at its highest, I am not precluded from considering all of the evidence regarding the employment of Ms Francombe in determining just how high the evidence rises.[6] It is not insignificant in that regard that the evidence reveals that the accused not only contemplated demoting Ms Francombe because of a failure to perform at the SAO1 level, but Ms Francombe was in fact demoted.
The differences in circumstances between the evidence relating to the employment of Ms Francombe and that relating to Ms Dewson meant that I was not satisfied that the Francombe evidence had significant probative value in proving a fact in issue regarding the charge against the accused.
Even if I had been wrong in that assessment, as I indicated in my rulings delivered on 20 February 2023, I was not satisfied that the probative value of the evidence outweighed the danger of unfair prejudice to the accused. The emphasis which the Crown placed upon the allegation that Ms Francombe was not qualified for the positions in which she was employed within the OCC had the potential to significantly increase the length of the trial. The nature of the employment previously undertaken by Ms Francombe, the skills that she gained in that employment, and the transferability of those skills to the work undertaken within the OCC would have become potentially significant issues in the trial. At best, the Francombe evidence satisfied the basal test of relevance, but did not have significant probative value. There was a substantial risk that this material would deflect the jury from focusing on the real issue at the accused’s trial; being the relationship between the accused and Ms Dewson and the reason for the accused engaging in the conduct alleged by the Crown.
For these reasons, I concluded that the Francombe evidence did not satisfy the test found in s 97(1) of the ENULA, and nor did it satisfy the test found in s 101(2).
The next basis advanced by the Crown in support of leading the Francombe evidence at the trial of the accused was that it was circumstantial evidence available to the Crown which could be used to help establish the guilt of the accused other than by tendency reasoning. Assuming that to be correct, I nevertheless determined that the evidence should be excluded by reference to either s 135(c) or s 137 of the ENULA. I was satisfied that the Francombe evidence had minimal probative value but there was a substantial danger that the evidence might cause or result in undue waste of time in the trial, essentially for the same reason set out in [58] above.
The final basis upon which the Crown sought to lead the Francombe evidence was that it was evidence of “repeated similar conduct” for the purposes of s 75C(3)(e)(ii) of the Code. The accused submitted that it could not be repeated similar conduct for the purposes of that provision as the conduct engaged in by the accused with regard to Ms Francombe was not criminal conduct at the time, s 81 in its present form only having been inserted into the Code after the Francombe conduct occurred. As a refinement of that submission, the accused further submitted that the repeated similar conduct had to be conduct which was capable of satisfying the elements of the offence found in s 81 of the Code.
I ultimately ruled against the accused’s submissions. The legislative intention reflected in s 75C is to permit a jury to consider the charged conduct within a wider context in determining whether the charged conduct warrants criminal sanction. The plain words of s 75C did not justify the gloss suggested by the accused. I was not satisfied, however, that the evidence had significant probative value, and that any probative value it possessed was outweighed by the danger of unfair prejudice to the accused. The evidence was excluded under s 137 of the ENULA.
The provisions of the Code are silent as to how a jury may take into account evidence that charged conduct occurred as part of repeated similar conduct in determining whether the charged conduct warrants criminal sanction. Is it evidence that always militates towards a finding that the conduct warrants criminal sanction? Or can it be evidence that reduces the moral culpability of an accused? It may be that the provision is deliberately drafted to allow for either approach depending on the circumstances of the case. The section does not, in terms, provide that the repeated similar conduct be solely the conduct of the accused, so that evidence that charged conduct against an accused was consistent with common practice within an area of the public sector may be taken into account. In the present case, however, there was no doubt that the Crown sought to lead the evidence as suggesting that the accused’s conduct with regard to Ms Dewson warranted criminal sanction.
The extent to which a jury could reason from the conduct engaged in by the accused in the Francombe matter that her conduct in the events regarding the employment of Ms Dewson warranted criminal sanction was limited. Even if the fact that the Francombe conduct was not criminal conduct at the time it was engaged in by the accused did not deprive the conduct of relevance as repeated similar conduct, the lawfulness of the conduct was a matter that must affect the jury’s estimate of the weight to be given to that conduct in determining whether the charged conduct was worthy of criminal sanction. For this reason I was satisfied that the probative value of the evidence was not great.
Although the Francombe evidence would have been admitted for a different purpose on this basis than on the alternative bases of tendency and circumstantial evidence, there would still have been a need for the accused to address those matters referred to at [58] above, as the admission of the Francombe evidence in all cases was based upon the assertion that Ms Francombe was employed by reason of her friendship with the accused. Determining whether or to what extent that was correct would require not only an examination of Ms Francombe’s relationship with the accused, but also her suitability for employment within the OCC. This had the potential to greatly lengthen the trial and to distract the jury from the real issues.
Similarity between charged conduct and earlier conduct said to be “repeated similar conduct” is required by the terms of s 75C(3)(e)(ii). The differences between the accused’s conduct with regard to Ms Dewson and that regarding Ms Francombe which I have identified above also reduces the probative value of the Francombe evidence as evidence of repeated similar conduct.
I did recognise the legitimate desire on the part of the Crown to establish that the accused was aware, during the charge period, of her obligation to identify and address potential conflicts of interest in the process of employing people in the OCC. For this reason I allowed the Crown to lead evidence that in August 2018 the accused had asked Ms Dewson to take control of the process of employment of Ms Francombe because of the accused’s friendship with Ms Francombe.[7]
The Dewson appointments outside the charge period
The Crown was permitted to lead evidence of appointments of Ms Dewson to positions within the OCC which occurred outside the charge period as tendency evidence, circumstantial evidence and evidence of repeated similar conduct.
The same difficulties with the drafting of the alleged tendencies to which I previously referred are present with regard to the proposed use of this evidence as tendency evidence. There are, however, substantial differences between this evidence and the Francombe evidence. The most obvious is that this evidence and the charged evidence relate to the accused’s conduct towards the same person, Ms Dewson. The differences which I identified between the charged events and the Francombe evidence do not exist. It was accepted by the accused that the Crown was entitled to lead this evidence as relationship or context evidence, so that the danger of unfair prejudice to the accused which I identified at [58] above did not apply. For this reason, the Crown was permitted to lead this evidence as tendency evidence.
Because the jury were to hear this evidence in any event, the main danger of unfair prejudice to the accused identified with the proposed use of the Francombe evidence as evidence of repeated similar conduct, being the danger of unwarranted lengthening of the trial and consequent distraction of the jury, was not present if this evidence was to be used as evidence of repeated similar conduct. The probative value of the evidence would still be lessened by reason of those matters referred to at [64] and [66] above, but in my estimation the probative value of this evidence was no longer outweighed by the danger of unfair prejudice to the accused. As such, it became a matter for the jury to weigh up.
The MMI Evidence
The accused initially objected to the Crown leading evidence at her trial of the accused’s conduct in appointing Ms Dewson to the position of MMI within the OCC on 11 January 2019.[8] The accused’s position changed somewhat when it became clear that the Crown intended to lead at least some of the MMI evidence as evidence of conduct the subject of the charge. The accused nevertheless maintained that this evidence should not be used as tendency evidence or as evidence of repeated similar conduct.
For the same reasons that the Crown was permitted to lead evidence of the Dewson appointments outside the charge period as tendency evidence and as evidence of repeated similar conduct, I permitted the Crown to lead the MMI evidence on the same bases.
The indemnity provisions
The accused sought to rely upon two statutory indemnity provisions at her trial, being s 49 of the CCA and s 64A of the Public Sector Employment and Management Act 1993 (NT) (‘PSEMA’). I ruled that the accused was not entitled to the benefit of those provisions.
Section 49 of the CCA provides:
CHILDREN'S COMMISSIONER ACT 2013 - SECT 49
Protection from liability – Commissioner and staff
(1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this Act.
(2) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.
(3) In this section:
exercise, of a power, includes the purported exercise of the power.
performance, of a function, includes the purported performance of the function.
The indemnity provided by s 49 is limited to circumstances where a person is exercising a power or performing a function under the CCA. These concepts are dealt with in s 10 of the CCA:
CHILDREN'S COMMISSIONER ACT 2013 - SECT 49
Commissioner's functions and powers
(1) The following are the Commissioner's functions:
(a)to deal with:
(i)a complaint about required services; or
(ii)on the Commissioner's own initiative, a matter that may form a ground for making a complaint (irrespective of when the matter occurred and whether or not a complaint was made);
(b)to monitor the ways in which service providers respond to reports made by the Commissioner;
(c)to monitor the administration of the Care and Protection of Children Act 2007 in so far as it relates to vulnerable children;
(d)to undertake inquiries related to the care and protection of vulnerable children;
(e)to monitor the implementation of any government decision arising from:
(i)an inquiry undertaken by the Commissioner under Part 6; or
(ii)any other inquiry related to the care and protection of vulnerable children, regardless of who undertook the inquiry;
(f)to monitor the ways in which the CEO deals with suspected or potential harm to, or exploitation of, children in the CEO's care;
(g)to report to the Minister on a matter relating to the Commissioner's functions as required by the Minister;
(h)to promote an understanding of, and informed public discussion about, the rights, interests and wellbeing of vulnerable children.
(2) The Commissioner has the powers necessary to perform the Commissioner's functions.
The Children’s Commissioner does not have any function under the CCA regarding the employment of staff within the CCA. The staff of the OCC are effectively public sector employees employed for the Commissioner.[9] As the Commissioner has no functions under the CCA regarding the employment of staff, the Commissioner has no powers in that regard.
The evidence established that in exercising any role in the employment of staff within the OCC, the accused was acting pursuant to a delegation of power from the relevant office holder in the Public Service. I was satisfied that the accused’s conduct while acting in the execution of that delegated power fell outside the scope of the indemnity granted by s 49.
Turning to s 64A of the PSEMA, that section provides:
PUBLIC SECTOR EMPLOYMENT AND MANAGEMENT ACT 1993 - SECT 64A
Protection from liability – employee reports
(1) No civil or criminal proceedings lie against a person:
(a)who conducts an investigation under the Act for the Commissioner or a Chief Executive Officer; or
(b)is an employee or former employee;
in relation to a report prepared in good faith by the person for this Act or in the course of his or her employment about:
(c)the work that has been, is being or is to be performed by an employee; or
(d)the work that was performed by a former employee; or
(e)the conduct of an employee or former employee.
(2) In subsection (1):
employee includes the Commissioner and a Chief Executive Officer.
former employee includes a former Commissioner and a former Chief Executive Officer.
The indemnity claimed by the accused with regard to this provision was limited to the alleged conduct of the accused in providing what the Crown said was a false and misleading reference to the second interviewing panel regarding NH’s application for employment as the Assistant Children’s Commissioner.
There was no suggestion that in providing the reference the accused was engaging in conduct that fell within the ambit of s 64A(1)(a). The submission was that the accused was an “employee” or a “former employee” at the time she provided the reference. The term “employee” is defined for the purposes of the PSEMA as meaning “a person employed in the Public Sector, other than the Commissioner or a Chief Executive Officer”.[10] The Commissioner referred to in that definition is the Commissioner for Public Employment.
A Chief Executive Officer may employ a person as an employee.[11] Employment may be ongoing, for a fixed period, or casual.[12] An ongoing employee is one who is employed until they resign or the employment is terminated under the PSEMA.[13] A fixed period employee is one who is employed for a period of time specified in their contract of employment. A casual employee is one who is employed to work as and when required from time to time.[14]
The office of Children’s Commissioner held by the accused does not fit within any of the forms of employment to which the PSEMA, and in particular s 64A, applies. The Children’s Commissioner is appointed by the Administrator.[15] As the holder of a statutory office to which she was appointed by the Administrator, the accused was not, at the time that she gave the reference regarding NH, an employee to whom the indemnity in s 64A of the PSEMA applied.
It was faintly argued by the accused that she had been an employee for the purposes of the PSEMA at some time in the past before she was appointed as Children’s Commissioner, and accordingly she was a “former employee” for the purposes of the application of the indemnity in s 64A. I was satisfied that this was incorrect. The clear legislative intention in s 64A in providing that the indemnity extends to former employees is to indemnify such persons in relation to conduct which occurred while the person was an employee for the purposes of that provision. In other words, the indemnity provided by section 64A is not lost if the person subsequently ceases to be an employee.
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[1] R v Gwynne [2023] NTSC 11.
[2]Evidence (National Uniform Evidence) Act 2011 (NT) (‘ENULA’) s 56.
[3]Ibid s 55.
[4] Hughes v The Queen [2017] HCA 20 at [39] (Hughes).
[5]Macquarie Dictionary, 6th Edition, p 1464.
[6] IMM v The Queen [2016] HCA 14 at [50].
[7] See [37] above.
[8]See [27] above.
[9]CCA s 19(1).
[10]PSEMA 3(1).
[11] Ibid s 29(1).
[12] Ibid s 29(3).
[13] Ibid s 29(3)(a).
[14] Ibid s 29(3)(c).
[15]CCA s 9(2).
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