The Queen v McRoberts (No 2) - [2018] NTSC 42

CITATION:The Queen v McRoberts (No 2) [2018] NTSC 42
PARTIES:THE QUEEN

v
McROBERTS, JOHN RINGLAND

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21616999
DELIVERED:  25 June 2018
HEARING DATES:  23 April 2018 to 31 May 2018
JUDGMENT OF:  Mildren AJ
CATCHWORDS:

CRIMINAL LAW - submission of no case to answer - circumstantial case - charge of attempting to pervert the course of justice - whether there was evidence fit to go to the jury - whether the Crown case as presented to the jury materially differed from the particulars provided.
Criminal Code (NT) ss 23, 26, 109.
Police Administration Act (NT) ss. 5(2), 6, 7, 14.

R v Morex Meat Australia Pty Ltd v Doube [1996] 1 Qd R 418 at 437-441; (1995) 129 ALR 546 at 564-568; R v Rogerson (1992) 174 CLR 268; R v Kellett [1976] 1 QB 373; R v Tovey (1993) 1 WLR 364; R v Vreones [1891] 1 QB 360; R v Machin [1980] 1 WLR 763; R v Mark Grosvenor Clark [2003] EWCA Crim 991; Parker v The Queen [2007] NTCCA 11; applied.
REPRESENTATION:
Counsel:
Crown:M McHugh SC and M Chalmers
Accused:A Elliott and S Ramdhas
Solicitors:
Crown:Director of Public Prosecutions
Accused:Ramdhas Poli
Judgment category classification:    B
Judgment ID Number:  MIL18550
Number of pages:  101

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v McRoberts (No 2) [2018] NTSC 42

No. 21616999
BETWEEN:

THE QUEEN

AND:

JOHN RINGLAND MCROBERTS

CORAM: MILDREN AJ
REASONS FOR JUDGMENT
(Delivered 25 June 2018)

The accused, John Ringland McRoberts is charged that between 2 May 2014 and 17 November 2014 he attempted to pervert the course of justice, to which charge he pleaded not guilty. At the end of the Crown case, counsel for the accused submitted there was no case to answer. I ruled that there was a case to answer, and at the time I gave brief reasons. I said then that I would later provide detailed reasons if required. These are those reasons.
This was a very unusual case. At the time of the alleged offending, the accused was the Commissioner of Police for the Northern Territory. The police were engaged in investigating a number of travel agents in the Northern Territory whom the police suspected were engaged in fraudulently claiming travel concessions payable by the Northern Territory Government, which had established a scheme called the PenCon Travel Scheme. One of the agents so suspected was a person called Xana Kamitsis who operated under the business names of Winnellie Travel and Latitude Travel. The Crown case was that between the relevant dates, the accused engaged in a course of conduct which had the tendency to frustrate or deflect an imminent, probable or possible prosecution which the accused contemplated may be instituted against Ms Kamitsis. The acts relied upon each related to engaging in conduct which had the purpose of preventing a search warrant being taken out on Ms Kamitsis’ business premises. Although none of the accused’s acts were in themselves unlawful, it was the Crown case that the accused intended to deflect or frustrate that possible prosecution for an improper purpose, namely to prevent Ms Kamitsis’ business records, and in particular, her mobile phone, from being searched during the course of a police investigation into probable charges being contemplated against her for, at that time, stealing. The Crown submitted that the motive for this conduct was because the accused did not want his personal relationship with Ms Kamitsis to become known.
Much of the background evidence was not in contest.
Some years ago, the government, in order to encourage retirees to remain in the Territory, established a Pensioner Concession Scheme for eligible Territorians in order to encourage them to stay in the Territory upon retirement. One aspect of this scheme was the PenCon Travel Scheme, which entitled eligible pensioners to claim a return economy airfare from the Territory to a capital city of their choice in Australia once every four years. Alternatively, a claim could be made for half of the economy airfare every two years. The entitlement could be put towards international travel expenses. The claim could be made either by the pensioner personally or through a travel agent. If made personally, the payment was made after the travel was taken. The scheme was administered by the Department of Health. There were 27 licensed travel agents which were approved by the Department to provide booking services to members who wished to make a claim for their concession at the time of making the booking. Each agent had entered into a contract with the Department relating to their participation in the making of claims under the scheme. Under the provisions of the contracts, the agents were entitled to charges for fees and charges which would also be reimbursed by the Department. For various reasons, the scheme had a number of weaknesses which enabled a dishonest agent to make a false claim. Because the agent would be paid the amount of the airfare claimed at the time of the booking, one way to make a false claim was if the pensioner at the time of travel was supplied with a cheaper fare than the airfare paid for, with the agent keeping the difference. Another way was to make a false claim for travel that was never taken. A big weakness in the system was that there was no requirement for the agent to produce a receipt from the carrier to prove how much had in fact been paid for the travel.
In October 2012, a pensioner called Walter Fuller tried to make a claim but found out that someone else had used his entitlement through an agent called Value Travel. His complaint to the Department led the Department into making some enquiries. In October 2012, Det Sergeant Blake (“Blake”) from the Fraud Squad met with some members of the team within the Department administering the scheme. He advised them to make a formal complaint to the Commissioner of Police, but instead of doing that, the Department commissioned a report from its auditors, Ernst and Young, which produced two reports, one on 24 May 2013 and another on 4 October 2013. The first of these reports is not in evidence. It allegedly differs from the second report only in relation to some references to the Government and the Department which have been omitted. The second report, hereinafter called the E&Y Report, is part of an agreed bundle of documents which became Exhibit P1 at the trial.[1] No audit was conducted. This report’s major findings were that the average concession paid direct to members during the period 1 January 2011 to 1 January 2013 was $631, whereas the average paid to travel agents exceeded this sum substantially. In the case of Winnellie Travel, there were 39 transactions averaging $1,720. This was the highest average amongst the 27 agents involved.[2] The report also found that there were eight travel agents which were in the category of “Higher Risk” in claiming on the basis of the maximum concession available rather than the underlying actual fare. Winnellie Travel was at the top of this list.[3] Whilst the E&Y Report did not provide any evidence, other than statistical evidence, that Winnellie Travel (or any other agent) had committed fraud, their report was certainly enough to make both the Department and Blake suspicious. Shortly thereafter the E&Y Report was referred to the Auditor General who reported the matter to the accused by letter dated 6 November 2013.[4]
On 3 December 2013, the Department made an official complaint to the accused.[5] The names Winnellie Travel, Latitude Travel and Kamitsis were not mentioned. The accused referred the matter to the Fraud Squad. In January 2014, Blake began to make enquiries with the Department to obtain the necessary records to see if criminality could be proved against any of the agents. Initially the plan was to investigate all 27 agents, even those the E&Y Report reported as “Lower Risk Agents” and those which were “Not Rated”. Over the next few months the main focus changed to only one agent, Winnellie Travel, although it was still envisaged that all of the agents would eventually be investigated. Blake was having difficulty getting documentation from the Department. Their records were not easily retrievable so as to identify which individual claimant made a claim at a particular time for a particular amount in relation to a particular travel agent. Furthermore, he was experiencing difficulties getting information from the airlines. Blake decided to prepare a “test case” in relation to one transaction involving Winnellie Travel for the opinion of the DPP. Blake’s evidence was that he chose Winnellie Travel because it was listed in the top eight in the E&Y Report, the number of transactions reported in the E&Y Report was small (only 39), so it was a small sample size and the average claim was higher than the benchmark average of $1,200.[6] On Friday 21 March 2014 he went to interview a Ms Da Silva whom he had randomly selected as the person he was going to build the test case around. When he went to interview her, Ms Kamitsis was present as her interpreter so the interview did not proceed.[7]
On or about 31 March 2014, Blake changed the focus to a claim by a Ms Martha Swart.[8] He had been provided documentation in relation to her claim by the Department which showed an application for concession signed by Ms Swart and witnessed apparently by Ms Kamitsis for travel to Sydney/Hobart between 20 December 2011 and 10 January 2012. A concession of $3,214 was paid by the Department representing 100% of the concession available. The payment was approved and paid by credit card to Winnellie Travel on 20 September 2011. There was an itinerary showing the travel and a tax invoice for the amount of $3,214 referenced to Ms Swart. There was also an email from Qantas showing that the travel took place between 10 January 2011 and 22 January 2011. The cost of the travel was only $1,111.79.[9] These documents were part of the brief of evidence sent to Mr Morters, a senior prosecutor with the DPP, on 15 April 2014.[10]
On 2 May 2014, there was a briefing of the accused by Assistant Commissioner Crime Command Kershaw (“Kershaw”), Superintendent Crime O’Brien (“O’Brien”) and Acting Deputy Commissioner Payne (“Payne”).[11] It is not clear who called this meeting or why it was thought necessary to brief the accused. O’Brien’s evidence was that he came back from leave to attend this meeting and that he took the test brief with him as an aide memoire to explain what was going on. He said that when the name Kamitsis came up, the accused said that she was known to him and was a friend of his.[12] Kershaw said that the accused said that he knew her through social circles,[13] although in cross-examination he conceded that the accused may have said that she was a friend of his.[14] Kershaw said that he told the accused that she was likely to be charged. O’Brien said that the accused also asked for the brief, and after reading it, he said words to the effect that “she can’t be this stupid.” Payne said that the accused said that he knew her socially and through Crime Stoppers, but that if she was to be prosecuted, then she was to be prosecuted.[15] O’Brien said that the accused said words to the effect that “whatever it will be, will be.”[16] In fact, Ms Kamitsis was the Chairperson of the Board of Crime Stoppers (NT). The accused was also a member of the Board.
On the evidence, this is the first time that the accused was aware that the police were conducting a criminal investigation into Ms Kamitsis. The evidence at this stage related to a single count of fraud of some kind involving potentially an amount of a little over $2,000.
A major plank of the prosecution case is that the accused failed to reveal the full extent of his relationship with Ms Kamitsis. At trial, certain admitted facts were read by counsel for the accused to the jury relating to this relationship. This included the following:[17]
Between 2010 and 2015 I had a personal relationship with Alexandra Kamitsis which at some stage prior to 2014 had included sexual intimacy. The nature of the relationship was (a) an intimate one and that of close friends and confidantes during all material times; (b) one in which we exchanged gifts (c) one in which her business made my travel arrangements and I would sometimes refer others to her business; and (d) one in which we communicated regularly by telephone and various messaging services.
The prosecution also tendered as admitted facts large bundles of text and Viber messages which the Crown submitted showed that throughout 2012-2014 the accused and Ms Kamitsis arranged to meet personally and were in regular personal contact with each other, sometimes in the early hours of the morning. This included the period between May 2014 and November 2014 when Ms Kamitsis was ultimately arrested. The Crown submitted that the messages indicated that the relationship continued to be a sexual one, even after May 2014.
There was evidence that the accused was required not to continue to be involved in an investigation once a conflict of interest, or an apparent conflict of interest, arose.[18] Furthermore, the accused was required by the terms of his appointment to disclose any conflict of interest in writing to his employer, in this case the responsible Minister, which he did not do.[19] There was evidence which a jury could find that the accused was in a position of actual conflict, and should not have continued to have anything to do with any investigation into any possible charges against Ms Kamitsis.
The Crown case was that the accused, after he knew that possible charges were about to be laid against Ms Kamitsis, continued to become personally involved in the investigation, and acted in a way that was designed to prevent her business premises from being searched by the police. The acts relied upon by the Crown were particularised (as at the time of the no-case submission)[20] as follows:
1.    Meeting with Notaras on 7 May 14
The accused met with Notaras 7 May 2014 and discussed an investigation into suspected fraud by travel agents including Kamitsis (“Operation Subutai”).
Knowing that it was improper for him to be involved in Operation Subutai, the accused proposed an approach to Notaras that involved an initial civil phase of issuing a debit notice to all of the travel agents including Kamitsis (“the alternative approach”).
2.    Frustrating the execution of the search warrant for Winnellie Travel
On 4 June 2014 the accused called a meeting for 3.00pm between himself, Payne and Kershaw after becoming aware that investigators were preparing to execute a search warrant on the business premises of Winnellie Travel. At the meeting, without disclosing the true extent of his relationship with Kamitsis and knowing that it was improper for him to be involved with Operation Subutai, the accused said words to the effect “this is not ready to an overt investigation” and raised a number of issues that he said needed to be addressed first “the six questions”). As a result of the accused’s interceding, the search warrant approved by the JMC and planned for execution on Winnellie Travel on 5 June 2014 was not executed.
3.    Second meeting with Notaras 16 June 2014
On or about 16 June 2014, knowing that it was improper for him to be involved with Operation Subutai, the accused met with Notaras and suggested that they jointly brief their respective Ministers as to the concerns the accused had about Operation Subutai and the alternative approach.
4.    Taking possession of the investigation file
On or about 19 June 2014, without disclosing the true extent of his relationship with Kamitsis and knowing that it was improper for him to be involved with Operation Subutai, the accused took possession of the Operation Subutai investigation file (exhibit P3) which included the test brief relating to Kamitsis, and reviewed the file over a period of days.
5.    Undermining the criminal investigation
Notwithstanding that the six questions were answered by investigators on 5 June 2014 and that he had reviewed P3, the accused asked, on or about 20 June 2014, “surely after all this time we have more evidence on other travel agents rather than the one” referring to Kamitsis.
On 23 June 2014 the accused met with his staff (Payne, Fuller and Sims) and received a briefing including a recommendation that the Kamitsis matter proceed to overt action. IN this meeting, the accused, without disclosing to his staff the true extent of his relationship with Kamitsis and knowing it was improper to be involved in Operation Subutai said words to the effect that “this file does not appear to me to represent 2 years of investigative work”. In the same meeting, the accused, also said words to the effect of “why do we start here?” referring to the Kamitsis matter.
6.    Proposing the alternative approach to his staff
On 25 June 2014, the accused, without disclosing to his staff the true extent of his relationship with Kamitsis and knowing it was improper to be involved in Operation Subutai, met with his staff to discuss Operation Subutai. The meeting was attended by the accused, Chalker, Payne, Fuller, Sims and Blake. The accused told the meeting words to the effect that after reviewing the file he was of the view that the matter was “more of a civil nature than a criminal nature” in support of the alternative approach. He told them he was going to speak with the Ministers about the matter.
7.    Obtaining Ministerial sanction for the alternative approach
On June 26 2014 a meeting was held between himself, Notaras, the Minister for Health (Lambley), and Chief Minister/Minister for Police (Giles). Without disclosing the true extent of his relationship with Kamitsis and knowing it was improper to be involved in Operation Subutai, the accused briefed the Ministers on Operation Subutai including putting forward the alternative approach. During the meeting the Ministers sanctioned the alternative approach and the formation of an inter-agency Taskforce (“the Taskforce”) to deal with the suspected fraud by travel agents including Kamitsis.
8.    Promoting the alternative approach to stakeholders
On 30 June 2014, the accused attended a meeting with Notaras, the Under-Treasurer (Ryan) and the Chief Executive of the Department of Attorney General and Justice (Shanahan). Without disclosing the true extent of his relationship with Kamitsis and knowing it was improper to be involved in Operation Subutai, the accused promoted the alternative approach to those present, stating words to the effect that he would like to “established a level playing field” and “didn’t think there would be enough evidence” for criminal prosecution.
9.    Directing the strategy of the taskforce
On or about 2 July 2014, the accused, without disclosing to his staff the true extent of his relationship with Kamitsis and knowing it was improper to be involved in Operation Subutai, informed Payne that a joint taskforce would be formed. He said that civil matters would be dealt with through repayment and that any criminal offending would be referred to NT Police in the event of non-repayment. The accused directed Payne to design a strategy reflecting the alternative approach for the Taskforce.
On or about 14 July 2014 Payne presented a strategy for approval. The accused approved the strategy and described it as “ingenious”. The strategy was subsequently adopted by the Taskforce.
In accordance with the strategy, on or about 1 September 2014, as a result of the accused’s actions and in keeping the alternative approach, letters were sent to travel agents including Kamitsis signed by the CEO of Health.
10. Monitoring and involvement with the Taskforce/August-November 2014
Knowing that it was improper to be involved in Operation Subutai, the accused monitored and was involved to some degree with the Taskforce’s activities.
On 6 August, the Taskforce met. Following the meeting the accused requested a briefing from Commander Proctor (relayed through the acting Deputy Mr Chalker) about the Taskforce,
On 12 August the accused participated in a meeting with AFTA representatives on 12 August 2014 to discuss the Taskforce and Operation Subutai.
On 10 October 2014 Mr Ray Murphy on behalf of Kamitsis emailed the interagency taskforce members including Notaras, attaching a response to the letter of demand. Notaras forwarded the email to the accused for information. The accused emailed back on 13 October “Thanks Len. Encouraging.”

In my opinion there was some evidence to support a finding in favour of the Crown in respect of each of the factual allegations alleged in the particulars. Counsel for the accused, Mr Elliott, did not take issue with most of the facts alleged except those alleged in relation to two particulars.
First, it was put that there was no evidence upon which a conclusion could be drawn that the accused had frustrated the execution of the search warrant on Ms Kamitsis’ premises as alleged in paragraph 2 of the particulars. The Crown case was that the accused, having found out that the police were investigating Ms Kamitsis and had obtained a search warrant for her premises, called a meeting on 4 June 2014 intending to frustrate the execution of the search warrant. The evidence was that on 30 May 2014, a major crime declaration was made by Kershaw.[21] The effect of this was that more resources would be made available, and also that the investigation was now probably going to go overt, although the documents do not say so in so many words.[22] By “going overt”, this expression is used to convey the meaning that it would become public knowledge that there was a police investigation into the activities the subject of Operation Subutai, the code name for the investigation into all 27 of the travel agents. The decision to apply for a search warrant on Winnellie Travel was made by the Joint Management Committee on 4 June 2014.[23] That meeting was held between 12 noon and 12.20 pm. Blake sought and obtained the warrant from Registrar Rischbieth the same day.[24] Blake emailed Superintendent Morgan (“Morgan”) for approval of the “warrant brief”.[25] The warrant brief indicated that it was intended that the warrant would be executed on the following day, 5 June 2014. Morgan emailed Blake back at 2.31 pm approving the warrant brief. At 3 pm a meeting was held in the accused’s office which was attended by the accused, Kershaw and Payne. The document which called the meeting was an email which was sent from the accused’s office.[26] Although the email was sent from the accused’s office, the evidence from the accused’s then Executive Assistant, Ms Benaim, was that she did not know who called that meeting. She was unable to say whether or not the accused ever sent out meeting invitations from his calendar. She did say that the accused would from time to time put meetings in his (electronic) calendar, but it was not uncommon for persons wishing to make an appointment with the Commissioner to approach her, in which case she would enter the appointment in his diary and send out the email invitation. The evidence of Kershaw[27] was that he did not and had no reason to call it. He said that the accused called the meeting. Payne said that he did not call the meeting or ask for it to be called and that the first he knew of the warrant was when he attended the meeting.[28] The Crown submitted that the accused “somehow” found out about the warrant and it was he who called the meeting. Kershaw admitted that he may have told the accused about the warrant.[29] Mr Elliott submitted that no inference could be drawn that it was the accused who called the meeting. In my opinion it was open to the jury to infer that he called that meeting given the timing of the events leading up to the meeting and the fact that the evidence of Kershaw and Payne was to deny that either of them had called it.
The evidence of Kershaw as to what happened at the meeting on 4 June was that there was a discussion about where the investigation had got to at that stage and what evidence had been collected, that the accused expressed a view that the police had not reached the threshold for a search warrant, and that there were a number of other considerations that had not been taken into account. In particular, the accused said that this would have serious implications for the travel industry, and implications resource wise for the police and the Northern Territory Government. He said that the accused raised a number of questions which he could not answer and which he thought were reasonable.[30] At the end of the meeting Kershaw sent an email to Fuller, Blake, Morgan and others setting out questions which needed to be answered before a proposed briefing of the CEO of Health and the Minister scheduled for 16 June which he and the accused would be attending.[31]
The evidence of Payne was that Kershaw told the accused that the investigation was about to go overt, and that the plan was to execute a search warrant on Winnellie Travel’s premises. Kershaw outlined the intent of the investigation, and a number of issues that had been canvassed in the initiating documentation. He said that the accused said: “This is not ready to go to an overt investigation.” He said that the accused said that there were a number of defences that could be left open, because of the nature of the scheme and because of the governance arrangements that sat around the pensioner scheme. He was concerned that more groundwork needed to be done and had a number of questions which needed to be answered, which Kershaw wrote down. He asked for those questions to be answered before the matter should progress to an overt investigation or execution of a warrant. He stated that the circumstances as presented to him were very much in a civil nature as opposed to a criminal nature; it was more of an overpayment situation and that would make it a civil matter. He said that if they got this wrong, it could be very embarrassing not only for the Northern Territory Police but also for the Department of Health which was administering the scheme. He indicated that he wanted answers to the questions he raised because he intended to speak to the Ministers on the 16 June and he wanted the answers before then.[32] Payne agreed that he thought that the questions the accused asked were reasonable. Both Payne and Kershaw said that they had no experience of a Commissioner being involved in stopping a warrant being executed before. Blake and Morgan said the same thing. All were very experienced police officers.
It was put by Mr Elliott that nothing the accused said or did amounted to an order not to execute the warrant. It is true that he did not give a direct order, but in all the circumstances I think it was open to be inferred that he made it clear that the warrant was not to be executed until at least after the accused had received answers to the questions he had raised or until he had spoken with the Ministers on 16 June. Having regard to the fact that the accused was the Commissioner with overall control of the Police Force, and he was speaking in this manner to Senior Officers who were two ranks below him, it was open to the inference that he expected them to do as he wanted. When regard is had to the evidence as a whole, including what happened later, and the fact that at the time of this meeting on 4 June the accused had very little knowledge of the extent to which the investigation had progressed, it was open to the inference that the accused intended to stop the execution of the warrant and effectively did stop the warrant from being executed. Having regard to his relationship with Ms Kamitsis, it was also open to the inference that he was either trying to protect her, or, that he knew that if the warrant were to be executed, it was likely that the police would seize and interrogate Ms Kamitsis’ mobile phone, which is something he wanted to avoid at all costs, because that would reveal the extent of his relationship with her, the fact that he was conflicted, and expose him to possible disciplinary measures. Alternatively, his motive may have been that he did not want his partner “L” to find out about his continuing relationship with Ms Kamitsis.[33]
The second matter which Mr Elliott raised related to the evidence relating to the meeting with the Ministers which occurred on 26 June, and not 16 June as originally foreshadowed. Before getting to that meeting it is necessary to briefly canvas the evidence relating to other matters which preceded it. The first of these matters is that advice was received from Mr Morters, a senior prosecutor with the DPP, which arrived on 6 May. The effect of the advice was that, subject to the collection of certain evidence from Qantas and evidence of dishonesty, which might be in the form of proving a course of conduct, there were reasonable prospects of successfully prosecuting Ms Kamitsis with stealing. That advice was not known to the accused until after the 4 June meeting.
Next, there was a meeting which the accused had with Dr Len Notaras on 7 May 2014. Dr Notaras was then the newly installed CEO of the Department of Health. He gave evidence of a meeting with the accused at the Ducks Nuts café on that morning to discuss a number of matters including the PenCon Scheme. At this stage Dr Notaras knew about this problem only peripherally as he had not had much of a briefing about it at the handover from his predecessors. He was told by the accused that there was an investigation going on, and that there were two ways of progressing the matter, either criminally or civilly.[34] He said that one of the agents involved was Ms Kamitsis. He said that a civil approach in the initial phase with the issue of debit notices to the travel agents was the preference, at least until the matter was more formally investigated. He said that the accused suggested that the Department could assess what was outstanding and enable the travel agents to repay what was owing and keep the matter as a civil matter. He also expressed concerns about the travel industry, the pensioners themselves and political embarrassment. In relation to Ms Kamitsis, he indicated that she would be treated on a level playing field like the others.[35] In cross-examination Dr Notaras agreed that it had not been suggested that any special consideration be given to Ms Kamitsis to get her out of trouble, and that any agents who had defrauded the Department would still be pursued by the police. It was not suggested that any of the agents could pay their way out of trouble just by paying back what was an overcharge.[36] The significance of this was, on the Crown case, that the accused was already planning a mechanism which would avoid the necessity for search warrants.
On 5 June 2014, Blake sent an email response to the questions raised by the accused.[37] The email was sent to Kershaw, Fuller and Morgan. There is no evidence that the accused saw that email until sometime around 19 June when it became part of the investigation file Exhibit P3. (at Tab 13).
On 16 June 2014, Blake prepared a memorandum addressed to the Commissioner. That note was not regarded as sufficient, and on 17 June Acting Superintendent Sims (“Sims”) requested more information be included in the brief.[38] That resulted in a more extensive briefing note to which were attached a number of other documents. This document became Exhibit P3. That document became part of Exhibit D14 which was the investigation file for Winnellie Travel. Exhibit D14 contained a variety of documents relating to the investigation procedures undertaken and the decisions made, the brief that was submitted to Mr Morters and his opinion, the documents upon which that opinion was based including the E&Y Report and a statement from Ms Swart, and some additional statements from Mr Gardiner from the Department of Health attaching the contract between Ms Kamitsis and the Department, and Michael Kalimnios the Chief Financial Officer of the Department of Health attaching the manual which under the agreement sets out the parameters of the scheme, as well as an email from Qantas relating to the actual travel and travel costs for Ms Swart’s travel. The documentation in Exhibit D14 indicated a prima facie case of fraud by Ms Kamitsis in relation to the Swart travel only.
On 16 June, the accused had another meeting with Dr Notaras in the latter’s office. On this occasion the accused suggested that it was time to brief the Ministers and the concerns that he held, to which he agreed.[39] The only significance of this meeting was that it was a step towards putting a plan to the ministers to approve a joint task force to approve of “the alternative approach” as that expression was used in the Schedule referred to in paragraph [13] above (see Item 1 on the Schedule).
On or about 19 June, Kershaw had another meeting with the accused. The file (Exhibit P3) had been in Kershaw’s office and at around the time of that meeting it had made its way to the accused’s office. Sometime during that week the accused spoke to Kershaw and said “Surely, after this time, there’s more evidence on other travel agents than this one”. Kershaw sent an email to Fuller repeating this comment and asking for his advice.[40] This was consistent with the accused’s intention that all agents should be dealt with simultaneously. Kershaw said that it was not common for a Commissioner to keep a file of that nature.
On 23 June there was another meeting with the accused at his office, this time with Payne and Sims, who had taken over from Morgan. According to Payne, Sims gave a briefing which outlined the answers to the questions previously raised by the Commissioner and recommended overt action in the form of executing the warrant on Winnellie Travel.[41] Although the evidence was far from clear, it was open to the inference that what Sims spoke about included what Sims had written in an email dated the same day and sent at 11.18am to Fuller, Kershaw and Payne. The email detailed the primary delays the investigators were experiencing:
The attachment document[42] provides a brief overview of the enquiries undertaken in respect of this fraud investigation to date. The greatest delay being experienced has been with the obtaining of timely information from QANTAS. Major Fraud Squad are liaising with QANTAS in an attempt to expedite this information.
The primary delays can be explained as follows;
The Department of Health (DoH) were requested to provide all 1491 suspicious transaction to us some months ago - they are working steadily at this and have nearly completed the task (they are not holding us up in any way and have been cooperative since they finally handed over the audit in February this year);
The holdup in terms of gathering information to continue the investigation is QANTAS - they refused to provide all of the info to DoH on request (without warrant) so we needed to obtain that via warrant;
QANTAS have provided the documents for the 21 transactions that are confirmed as suspicious;
QANTAS are likely to give us the docs for Winnellie Travel this week (so 3 months roughly to provide 39 transactions requests);
We have not asked QANTAS for the remaining 1452 (we were anticipating executing warrants on each Agency first so that we can narrow down the requests for info with names, dates, booking numbers etc that would assist greatly in streamlining the process);
Our preference is still to execute one warrant at a time on each travel agent (our capacity to execute them simultaneously is limited and we could not follow up/ process the info all at once afterwards in any event.
Payne’s evidence was that the accused was not happy to go overt, and made the stinging comment that “this file does not represent two years of investigative work.”[43] He said that the accused said that there were defences available that had not been negated. The evidence was that the accused had the file (Exhibit P3) with him at the meeting, and the accused asked, “Why do we start here?” After the meeting was over Payne said that the accused took the file (Exhibit P3) with him. The Crown’s submission was that all the matters in that brief were matters which positively favoured the execution of a warrant on Winnellie Travel first, and this was evidence of the accused’s motive, and of his being involved for an improper purpose.
Sims’ evidence about that meeting was along similar lines.[44] He said that he explained to the accused that the reason for starting with Winnellie Travel was because there were a smaller number of transactions, and that the average value was higher than any other identified in the E&Y Report. Sims said that a request came out of the meeting which resulted in an email which he sent to Fuller on 24 June, attaching spreadsheets which identified 57 suspicious transactions.[45] The spreadsheets identified three transactions involving Winnellie Travel.[46] Two of these related to variances with the actual travel and the third related to travel where no booking was found. Fuller had no recollection of this meeting.
On 25 June there was a meeting between the accused, Blake, Payne, Fuller, Sims and Chalker.[47] Blake’s evidence[48] was that he gave a presentation at the commencement of the meeting. He had prepared a “Proposed Target Operation Plan” and spoke to it at the meeting. The Plan recommended that the police should “investigate Travel Agents in order of likely offending (one after the other and starting with Winnellie Travel) and initiate Overt Police Action in the traditional course of the Police Investigation.” After his presentation he said that there was general discussion between those present. Concerns were raised about governance issues; how the Department administered the scheme and what affect this might have on the investigation. He could not remember much of that discussion. The accused said that he would be meeting with the Minister and the CEO of the Department of Health. He was asked by the accused to provide the listing details of the top eight agents which he did the following day. Blake had little recollection of the meeting, other than what was in the minutes. He agreed that the matter of civil remedies was raised and discussed. He said that he was satisfied with the outcome of the meeting because criminal remedies were still to be pursued.
Payne’s evidence was that the execution of the warrant was supported at the meeting by him and others present. He said that the accused said that these were matters more of a civil than a criminal nature[49] and that he intended to raise these matters with the Minister as the next step. He said the decision was made not to take any further action until the accused had spoken to the Minister for Health and that no-one raised any objections to that course.[50]
Sims’ evidence[51] was that the accused said that he preferred that warrants be executed simultaneously upon all the travel agents and that he had come up with the idea of a joint task force, and would be speaking to the relevant ministers about that. He said that the accused expressed the view that civil remedies would be pursued and that if the agents did not cooperate, they would be pursued with criminal action.
Chalker was not called as a witness. Fuller had virtually no memory of the meeting at all.
The meeting with the Ministers was held at the office of the Chief Minister, Mr Giles on 26 June 2014. Present were Mr Giles, who was also Minister for Police etc., the Minister for Health, Mrs Lambley, Dr Notaras and the accused. Although Kershaw had been expected to go to this meeting, he was not invited. Giles’ evidence was to the effect that the accused presented the E&Y Report and spoke to it. He recalled the accused saying that there was a major fraud involving up to 27 travel agents and more than 800 Territorians. There were eight travel agents with a high level of fraud. He told the accused the “we should go hard on them”. The accused said that they should be seeking to get the money back and if there was criminal wrong-doing they should be pursued criminally. He said that no particular travel agents, other than Flight Centre as one of the top eight, were mentioned and there was no discussion about political implications or tourism. He said that the accused mentioned letters of demand to 19 of the travel agents at lower risk to get the money back and to see if there was any criminality involved with them.[52] No mention was made of any potential conflict of interest. In cross-examination he agreed that a number of options were put to the meeting, but he could not remember the details.[53]

The evidence of Dr Notaras was that the accused clearly articulated what the problem was and suggested that there were two ways of going about this, one being to proceed with civil action and the other to proceed with criminal action. He said that the accused expressed concern about the negativity criminal action would have on the travel industry and the stress this would cause to pensioners, but that Chief Minister Giles had said the he was not concerned with the travel industry and he wanted him to go hard. He said that the accused spoke about issuing debit notices. He said that the decision was made to set up a joint task force, and that this suggestion came from Chief Minister Giles. He said that he told the meeting that the task force would have the full support of the Department of Health.[54]
Mrs Lambley’s evidence was that the accused shared information with them about travel agents rorting the system, that there were 27 agents involved, with eight agents of particular concern. She remembered Flight Centre being mentioned as one of those agents. She said that the purpose of the meeting was to discuss planning a strategy from that point on. She said that the accused advised that it would be better not to proceed with a criminal investigation. He suggested that in the first instance it would be better to send out letters to all of the travel agents, giving notice that there had been an overpayment, and giving the agents the option of making repayments. The accused said that to go straight to a criminal investigation would be resource intensive. Her understanding was that the criminal investigation would come after that. She recalled that the Chief Minister said that he wanted to go hard on the top eight travel agents. According to her evidence the letters were to go out to all 27 agents.[55]
It was submitted by Mr Elliott that there was no evidence that the accused at this meeting proposed the civil recovery of debt as an alternative to criminal proceedings, in the sense that if the agents repaid the money, there would be no criminal proceedings even if criminality were discovered. It was also put that there was no evidence that criminal investigations would not continue simultaneously with the sending out of the letters. I accept that, but this was not the point. The inference is open that the accused promoted to the meeting a process whereby search warrants on the premises of the agents would not become necessary if they cooperated with the letters of demand. Although investigations would continue, the police would not have the ability to gain valuable evidence in this fashion.
The next meeting which took place occurred on 30 June 2014 at the offices of Greg Shanahan, who was the Chief Executive Officer of the Department of the Attorney General and Justice (“Shanahan”). The meeting was attended by Shanahan, Dr Notaras, Jodie Ryan (the Under-Treasurer) and the accused. Dr Notaras’ evidence was that the accused outlined the two options, either going criminal or civil. He said that the accused said that although some police favoured “going in a more overt manner” his own preference was to “go civil” by sending out letters seeking explanations from the agents asking them to reconcile their accounts, seeking explanations from the agents, and to ensure that there was “a level playing field” and that all agents were given “a fair go.”[56] In “the second instance, it would proceed, if necessary, to an overt criminal investigation.”[57] He said that he nominated Jan Currie to be the chair of the task force.
The evidence of Jodie Ryan was that she was unaware of the alleged travel rorts before attending this meeting. She recalled being informed of instances of how the scheme was being manipulated. The matters discussed included setting up of an interagency task force. She was told that the Department’s records were not that good, and that she was asked to nominate a person good with numbers to look at the records and reconcile them with the people who had claimed. She said that the accused had said that it was unlikely that the police could conduct a successful prosecution due to lack of evidence and faulty record keeping by the Department of Health, and that he suggested as one option, writing to the agents and that they would have a moratorium period to hand back the money and no further action would be taken.[58] Later she qualified that by saying that she was not sure who raised that option and further, she said that this was an option if there was no criminal case.[59]
The evidence of Shanahan was that the accused “provided a verbal brief regarding the alleged frauds being committed by NT travel agents against the scheme. The accused stated that he wanted to establish a multi-agency task force, the task force to investigate the matter with staff from each agency at the meeting to be seconded to the taskforce.”[60] Shanahan said “I provided advice to the meeting in relation to investigation options” which were “proceeding via a criminal investigation/prosecution of the travel agents, which would be unlikely to result in any financial recovery of fraudulently obtained funds; or initiating a civil process against travel agents in an attempt to recover the fraudulently obtained funds; or both options. No decision was made at the meeting on which way to proceed.”[61] Subsequently Shanahan nominated Greg Macdonald, a senior lawyer in the Department, to the task force.
According to Payne, the accused had a meeting with him on 2 July 2014 and told him that the result of the meeting with the Ministers was that a joint task force would be formed to progress the investigations. The task force would concentrate on two elements. In the first instance, “a resolution of the matters through civil process and that flowing from that any matters that were of a criminal nature would be then referred over to police to continue prosecutorial action”.[62] He said that he was told that he would be the police representative on the task force and that it would be led by the Department of Health. He said that, as he understood it, the plan was to seek cooperation from the travel agents to provide records of the transactions to be compared with the records of the Department of Health, and he was asked to develop a strategy to achieve this. The effect of his evidence was that only if criminality was discovered after this occurred would the Department refer a matter to the police for criminal action.[63] The consequence of this was that there would be no overt action in the meantime.
The strategy which Payne actually developed on 14 July 2014 was in keeping with the general thrust of the instruction given to him by the accused on 2 July. The strategy envisaged three stages. First, the cooperation of the travel agents would be sought to reconcile their records with those of the Department. During this stage, the extent of the overpayment could be identified and the monies recovered. If in this process, any criminality was discovered the matter would be referred to the police for criminal action. Stage 2 envisaged that if there was no cooperation, the Department’s records would be reconciled against service providers’ records to see if a prima facie case could be established. This would be done by the police arm of the task force. Stage 3 provided “Without the cooperation of the travel agent and in the light of the investigative outcomes of Stage 2, the matter is then elevated to the collection of evidence by Search Warrant and statements of witnesses (Seniors) with a view to a criminal prosecution.”[64] Payne’s evidence was that when he showed the plan to the Commissioner on or about the same date, the accused said it was ingenious and he was to be commended for it.[65] It is plain that according to this plan, there were to be no search warrants issued against any of the travel agents’ businesses until Stage 3 had been reached.
Over the ensuing months, the task force met and eventually approved of a form of letter which was sent out to all agents. The letter which was sent to Latitude Travel is dated 1 September 2014.[66] It is signed by Dr Notaras. In short, the letter attaches a schedule of all claims made by Latitude Travel for the scheme between 1 January 2011 and 30 January 2014 and requests the recipient to “provide the Department with copies of both the Tax Invoices (eg weekly Billing and Settlement Plan (BSP) settlement report or weekly report from your consolidator or evidence of the relevant ticketing information/eticket) from the relevant carrier in respect of each claim, together with the relevant Tax Invoice you rendered on the client in each case. In the event that the Department concludes that any obvious overpayments of subsidies under the PCCS has occurred, I will then make a formal request to you for repayment.” The letter goes on to indicate that alternative possible action may be indicated in some cases and stated that “it is therefore important that you do not destroy any records …”; it also indicates that “it is also possible that NT Police may decide to further investigate claims ...” Latitude Travel (which is another name for Winnellie Travel) was given 30 days within which to comply.
There is no evidence that the accused did anything of significance during the period after 14 July except to attend a meeting with representatives of the Australian Federation of Travel Agents on 12 August, the purpose of which was to receive an offer of assistance concerning the methodology employed by travel agents when making bookings and the manner in which their records were generally kept. It was not suggested that the accused did anything on that occasion to prevent the execution of any of the warrants or otherwise interfere with the work of the police or the task force. Otherwise, the accused received briefs on the progress of the investigation. He received an email from Dr Notaras on 13 October 2013 relating to Latitude Travel which indicated, according to the attachments, that Latitude Travel’s solicitor had received instructions to provide the documents requested. The accused replied by email: “Thanks Len. Encouraging!”[67] During this period he maintained close contact with Ms Kamitsis in both a professional and personal capacity. There is no evidence that he tipped her off either about the original warrant, or that she was the subject of special attention by a police investigation.

The elements of the offence

The accused was charged with attempting to pervert the course of justice between 2 May 2014 and 17 November 2014, contrary to s 109 of the Criminal Code. It was clear that the Crown case depended upon a course of conduct constituted by a number of acts alleged to have been committed by him during that period. That an offence of this kind can be committed by a course of conduct is well established: see the decision of the Queensland Court of Appeal in R v Morex Meat Australia Pty Ltd v Doube.[68]
It is also well established that the offence can be committed even though no proceedings have been brought and the matter is only in the course of police investigations. In R v Rogerson[69] the High Court discussed the circumstances under which such an offence can be proved. Mason CJ said:[70]
It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed. That is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate the course of curial or tribunal proceedings which are imminent, probable or even possible. In other words, it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceedings before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or proceeding has not been considered by the police or the relevant law enforcement agency.
Accordingly, I agree with Brennan and Toohey JJ that an act which has a tendency to deflect the police from prosecuting a criminal offence or instituting criminal proceedings before a judicial tribunal, or from adducing evidence of the true facts, is an act which tends to pervert the course of justice, and if done with intent to achieve that result, constitutes an attempt to pervert the course of justice and can ground the offence of conspiring to pervert the course of justice.
Brennan and Toohey JJ said:[71]
Although police investigations into possible offences against the criminal law or a disciplinary code do not form part of the course of justice, an act calculated to mislead the police during the investigations may amount to an attempt to pervert the course of justice. An act which has a tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal or from adducing evidence of the true facts is an act which tends to pervert the course of justice and, if done with intent to achieve that result, amounts to an attempt to pervert the course of justice.
The present case is unusual in that it might be said that anything the accused did was within his authority as the Commissioner of Police. The office of Commissioner is established by s 7 of the Police Administration Act (NT). Section 6 of that Act provides that the Police Force “shall consist of a Commissioner and other members appointed and holding office under and in accordance with this Act.” Section 5(2) provides that the core functions of the Police Force are:
(a)to uphold the law and maintain social order;
(b)to protect life and property; and
(c)to prevent, detect, investigate and prosecute offences; and
(d)to manage road safety education and enforcement measures; and
(e)to manage the provision of services in emergencies.
Section 14 of the Act provides that, subject to the Act, “the Commissioner shall be charged and invested with the general control and management of the Police Force and may, in addition to those powers, exercise any powers conferred on a Superintendent or other officer of the Police Force.”
In R v Rogerson Brennan and Toohey JJ observed that “subject to a limited discretion not to prosecute, it is the duty of the police to prosecute when offences are committed.”[72] In this respect, the accused was in no different position than any other member of the police force. But, as Mr Elliott submitted, as Commissioner the accused had to consider all of the implications of what was an extremely large investigation involving 27 travel agencies’ conducted over a lengthy period of time in circumstances where the Department of Health was struggling to provide the investigators with the documentation required to bring proceedings. He had to consider the effect of such an investigation in respect of police resources, budgetary controls imposed by the Government, as well as a broad range of factors relevant as to how best to go about this task. One of the decisions that he made was that it was not a good idea to go “overt” in relation to one agent only because this would tip off the others and risk the possibility of records being lost and destroyed. Just because all of the other police involved in the investigation thought otherwise, did not mean that his approach was wrong. It is perfectly possible for different minds to reach different conclusions about the best solution to the same problem. Perhaps another way of saying this was that the accused’s actions were authorised under ss 23 and 26 of the Criminal Code (NT).
It was for this reason that I considered that before the accused could be found guilty, it was necessary to prove that the accused’s acts were performed for an improper purpose. In R v Kellett[73] the accused was the defendant in divorce proceedings. He discovered that certain neighbours who were to be witnesses in those proceedings had made disparaging comments about him. He sent an inquiry agent to speak to the neighbours under the pretence that the agent was considering letting a property from him, and asking them what they thought of him as a prospective landlord. The conversation was recorded by the agent who reported what was said to the accused. The accused wrote a letter to the neighbours threatening to bring an action against them for slander. The accused was later charged with attempting to pervert the course of justice and convicted. The jury had been instructed by the trial judge to decide whether the accused intended by threatening slander proceedings to use those proceedings as a lever to stop the neighbours from giving evidence in the divorce proceedings. The Court of Appeal held that “where the attempt is to restrain a witness from giving evidence it may be necessary to indict for the offence charged in this case. Where it is made with threats - or promises - it is committed, notwithstanding that the threat is a threat to do a lawful act, provided that one of the motives which activates the accused in making the threat is to intimidate the witness into altering or withdrawing evidence.”[74] The Court went on to use the expression ‘improper pressure”: “there may be cases of interference with a witness in which it would be for the jury to decide whether what was done or said to the witness amounted to improper pressure, and so wrongfully interfered with the course of justice”.[75] I think that this case is some authority for the following proposition: that conduct which is otherwise lawful may still amount to this offence if it motivated, or one of its motivations, is to act for an improper purpose.
The other matter of peculiarity with this case is that the conduct did not involve threatening witnesses or attempting to bribe them. Could the offence be committed by other means? In R v Tovey[76] the Court of Appeal held that the offence can be committed even if there is no evidence of any bribe, threat, undue pressure or other unlawful means. At p 369 the Court observed that interfering with a witness, where the end in view was assumed to be proper, would not necessarily constitute an offence. “But it would constitute an offence if the means of interference were improper.”
Can the offence be committed in ways other than with witness tampering? Of significance in this context is R v Vreones[77] where the accused was convicted because he had tampered with wheat samples taken for submission to arbitrate to be appointed to determine any dispute that might arise as to the quality of the consignment. In that case, Pollock B said, at p 369: “The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice.” In R v Machin[78] the Court of Appeal observed that “the common law recognizes a wide general offence variously referred to as preventing or obstructing the course of justice, obstructing or interfering with the administration of justice, and defeating the due course or the ends of justice. The particular acts or conduct in question may take many different forms including conduct that amounts in itself to some other criminal offence or attempt thereat in the strict sense of an inchoate offence. The gist of the offence is conduct which may lead and is intended to lead to a miscarriage of justice whether or not a miscarriage actually occurs … The word [attempt] is convenient for use in the case where it cannot be proved that the course of justice was actually perverted but it does no more than describe a substantive offence which consists of conduct which has the tendency and is intended to pervert the course of justice.”
In my opinion the offence of attempting to pervert the course of justice can be committed in a variety of ways. There are no closed categories. In The Queen v Rogerson Brennan and Toohey JJ said:[79]
The course of justice is perverted (or obstructed) by impairing or preventing the exercise of the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions.

At the end of the trial, I provided written instructions to the jury in the form of an aide memoire as to the elements of the offence in the following terms:
1.      The accused is charged with a single count of attempting to pervert the course of justice between 2 May 2014 and 17 November 2014. The offence consists of a number of elements. In order to find that the accused is guilty, the prosecution must prove each of these elements beyond reasonable doubt.
2.    The elements of the offence are as follows:
2.1That between 2 May 2014 and 17 November 2014, the accused engaged in conduct, that is, he did one or more of the acts specified in the schedule below.
2.2That the conduct engaged in by the accused had the tendency to frustrate or deflect an imminent, probable or possible prosecution which the accused contemplated may be instituted against Xana Kamitsis.
2.3That the accused intended that his conduct would frustrate or deflect that possible prosecution.
3.    It is not necessary for the prosecution to prove that the police had formed a belief that Xana Kamitsis had committed a specific identifiable crime, the subject of a possible prosecution. It is enough that the police investigation into a number of travel agents including Xana Kamitsis could lead to a prosecution for some offence.
4.    Before you can convict you must be unanimous in finding beyond reasonable doubt that one or more of the acts specified in the Schedule have been proved meet each of the criteria specified in paragraph 2 above, and you must be unanimous about which one or more of those acts.
5.    In relation to element 2.3 above, if you find that the accused engaged in the conduct for an improper purpose, that will be sufficient even if you consider that he may have additionally engaged in the conduct for a lawful or proper purpose. What must be shown is that one of the purposes for the accused to engage in that conduct was an improper purpose.
6.    Whether or not the conduct relied upon succeeded in its aim is irrelevant. The question is whether it had the tendency referred to in paragraph 2.2 above when the conduct was engaged in.
7.    When considering whether the Crown has proved element 2.2, it is necessary to consider the objective tendency of the conduct.
8.    In considering paragraphs 2.2, a mere tendency to delay an imminent, probable or possible prosecution is not, by itself, enough to convict. Similarly, a mere intention to delay a possible prosecution is not by itself enough.
9.    The conduct alleged must have the objective tendency to deflect or frustrate an imminent, possible or probable prosecution. This requires proof that without further action by the accused, there is a real possibility or risk that what he said or did had the relevant objective tendency without more, in the sense that the accused’s actions alone had that tendency. The tendency of the conduct is not to be judged on the particular circumstances of this case, but by the risk that his conduct posed in the ordinary course. So, what you need to consider is whether, the Crown has proved beyond reasonable doubt that in the ordinary course, what the accused did, had the relevant tendency to frustrate or deflect a possible, probable or imminent prosecution of Kamitsis. There are many ways in which conduct may have the tendency to pervert the course of justice. In cases of this kind, frustrating or deflecting a police investigation can give rise to the risk of that tendency if the accused hindered the ability of the police to invoke the court’s jurisdiction or hindered its ability to ascertain the truth of facts to be presented to a court.
The instruction relating to mere delay was based on the decision of the Court of Appeal in R v Mark Grosvernor Clark.[80] In that case, the accused was charged with attempting to pervert the course of justice. The facts were that the accused had been involved in a fatal road accident with a cyclist. He had left the scene knowing he had hit the cyclist and knowing that he had excess alcohol in his blood. He did not report the accident until the following morning when he knew that he was not at risk from the breathalyser. The Crown case was that he acted in this manner to deliberately conceal his offence. Had he remained at the scene he would have been breathalysed with a view to prosecution for serious road traffic offences and his car would have been forensically examined at that time. The court held that the offence required some positive act. Simply not stopping after the accident and driving home was not enough. By removing himself he had not concealed the evidence as to the damage to his car or as to his intoxicated state. They were still there to be seen. The alcohol in his blood diminished naturally over the following hours and that process could not be relied upon as some qualifying act or course of conduct. The Crown was right not to rely on the failure to report the accident as soon as reasonably practicable because that was self-evidently an omission and not an act. When dealing with the offence generally, the court said that the offence covers a wide variety of situations; there are no closed list of acts which may give rise to the offence and it would be wrong to confine it to the specific instances or categories which have so far appeared in the reported cases:
The offence undoubtedly covers fabricating, concealing, or destroying evidence with intent to influence the outcome of criminal proceedings, which include criminal investigations. Fabrication and destruction of evidence are likely to involve positive acts which will obviously fall within the ambit of the offence. Concealment is more difficult. It may involve a positive act such as hiding a body or a weapon (as in R v Rafique (1993) QB 843) but will not necessarily do so. There is authority however that some positive act is required.[81]
Mr Elliott’s principal argument was that the acts relied upon by the Crown, even if proved, could not amount to conduct which had the tendency to frustrate or deflect an imminent, possible or probable prosecution which the accused contemplated may be taken against Ms Kamitsis. His argument was that whatever else the accused did, he did not “frustrate or deflect” a possible prosecution. He referred me to the Macquarie Dictionary which says that “frustrate” means “to make of no avail; defeat; baffle; nullify”. In relation to “deflect” he referred to the same dictionary for the meaning “to bend or turn aside; to swerve; to cause to turn from a true course or right line.”
The Crown case against the accused was a circumstantial one, where in my view none of the individual facts considered alone, (with the possible exception of the facts alleged in item 2 of the schedule) could lead to an inference that the Crown had proven each of the elements of the offence. In those circumstances, the approach to be adopted is as explained in Parker v The Queen,[82] (a decision which is binding on me), that:
It follows from the principles as formulated in Bilick … in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences were are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence … . He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.
Applying that test, I considered that looking at the accused’s conduct as a whole, it was open to the jury to find that the facts in relation to the conduct particularised had been proven, and that it was also open to the jury to conclude that the accused had by that conduct, intended to prevent the police from executing a search warrant on Ms Kamitsis’ business premises, as one of the purposes of that conduct, and that his motive for doing so, and one of his purposes in doing so, was to prevent the police from seizing the accused’s business records including her mobile phone, so as to keep secret the extent of his relationship with her, and that therefore, at least one of his purposes was an improper purpose.
I also considered that it was open to the jury to find that the accused’s conduct frustrated or deflected an imminent prosecution of Ms Kamitsis. The purpose of a search warrant in the ordinary course is to gather evidence. Looked at objectively, the conduct had the tendency to prevent the police from gathering evidence by executing a search warrant which was essential to a prosecution for an offence of dishonesty, namely the accused’s business records, including her mobile phone, which in the ordinary course would likely to be necessary to prove that she was personally responsible for the fraud, and that her conduct was dishonest.
However, I did not consider that the facts alleged in relation to item 10 on the schedule consisted of any relevant acts for the purposes of establishing the accused’s conduct, although it may have had some relevance as to his motive or intention.
The defence case was that he was approached by Kershaw and Payne for their guidance on 4 June. He did not call the meeting that day. Because in the past the accused had been criticized for inaction in relation to another matter which had received publicity, he would have felt compelled to provide guidance. He had partly revealed the nature of his relationship with Ms Kamitsis. No one had suggested to him he should step aside. If he had stepped aside this would have inevitably led to the execution of the search warrant which would have tipped off the other 26 agents, risking the destruction or loss of evidence. The accused was in a difficult situation and he acted honestly and professionally in the execution of his office. I think it was open to the jury, notwithstanding this submission, to find the Crown case proved beyond reasonable doubt and therefore exclude this as an innocent competing hypothesis. In my opinion the jury would be entitled to find that had he revealed the true nature of his relationship with Ms Kamitsis to Kershaw or Payne, he would have been forced to step aside. In any case, the jury would be entitled to find that he should not have had anything to do with the investigation so far as it was directed at Winnellie Travel, and there was no good reason for him to become and remain involved.
For these reasons, I rejected the submission of no case to answer and let the trial proceed to determination by the jury.
As a separate matter, Mr Elliott complained that the prosecution had advanced a different case at trial than that which had been particularized. He submitted that, “had I been told that this was a case about delaying some overt action, then I would have explored that up-hill and down dale, and would have asked questions not about whether the investigation continued, but about the reasons for delays in a very, very different context.” The particulars and case openings which had been provided by the Crown to the accused’s solicitors and counsel were tendered as Exhibit P1 on the submission, and are annexed to the end of this judgment. I found against Mr Elliott’s submission because it seemed to me that it had been plain throughout, that the Crown case was all about preventing the police from executing a warrant on Ms Kamitsis’ premises, the reasons for that, that Mr Elliott was well aware of that, and that he cross-examined the witnesses in order to justify the course which the accused had taken. It was plain to me that the accused’s case was that there were good reasons for not going overt by executing a warrant on her business. It was put to the witnesses that it was better to gather the evidence from the Department, take statements from the pensioners, and get the Qantas records before executing a warrant; that executing the warrant would signal to the other travel agents that they were all under suspicion and risk the possibility of those agents or some of them, destroying their records. It was put to the witnesses that the accused had to consider the bigger picture and take into account the investigation of all of the agents as a whole and that fairness required that he treat all of the agents on a level playing field. The question of whether or not the accused had a reasonable belief, based on the information that had been presented to him by the investigators, that police did not have enough information to justify a warrant was also thoroughly explored. It was put that, given that the police were having difficulty getting the Qantas records and the records from the Department, that the plan adopted and promoted by the accused to implement a joint task force so as to obtain the records from the travel agents was in the circumstances a successful one. Mr Elliott’s cross-examination of the witnesses was extremely thorough. No stone was left unturned. I do not accept that he was deprived of the opportunity of meeting the Crown case, or that the Crown case altered in any material way.

From: Mary Chalmers
Sent: Monday, 9 April 2018 11:59 AM

To: 'Anthony Elliott'; Sharleena Ramdhas

Subject: RE: R v McRoberts

Tony

Noted re Giles.

We will attend to providing the requested advice unless redacted material is the subject of some claim (have you previously received a redacted copy?)

I look forward to receiving your list of witnesses required - my ability to do a list has been overtaken by recent events not helped by having to take 2 days off sick in bed.

We will be making our application but your response leads me to believe that only the trial judge can realistically hear it.

We have engaged Michael McHugh SC and he will be eager to speak with your leader as soon as he has read the brief.

The case outline is likely to be refined. It is only an outline and, as you know is based on the case as it stood at committal.

Rgds

From: Anthony Elliott [mailto:[email protected]]
Sent: Monday, 9 April 2018 11:38 AM
To: Mary Chalmers <[email protected]>; Sharleena Ramdhas <[email protected]>

Subject: RE: R v McRoberts

Dear Mary,

Thank you for your two messages sent this morning, the first addressed to me posing the following questions, and the second addressed to the Sheriff of the Supreme Court.

"1. Whether defence will consent to our application

2. Whether defence will confirm on record that the trial will be completed by Friday 1st June [that is, within

the current allocated dates] - our silk can only take the brief on this basis as he has another trial commencing the following Monday."

The defence will neither consent nor oppose. Our position is that there is still a wealth of disclosure to consider by the defence, and we consider that the trial should be adjourned to allow us to consider that material. You are well aware of the history of that side of things, namely that we requested this material as long ago as January 2017, and some of it we have only received in the last few weeks.

The defence cannot give the guarantee which you seek. To be frank, as we delve further and further into the disclosed materials, it is my view that the trial is likely to run longer rather than shorter. Day by day we discover documentary evidence which it will be necessary to put to a host of witnesses. This impacts on the manner of giving evidence. It would be unworkable for Mr Giles to give evidence otherwise than in person. If it were otherwise, then the duration of his evidence would be lengthened considerably.

At this point (and I appreciate that we are yet to present a notice to admit to the Crown) we have no idea whether particular issues which we wish to raise are in contest, or not. There is also the factor that when the matter was initially listed (with no consideration of our availability), the Crown estimated that the matter would take six weeks.

In my view, the risk of not completing in time is too great for the parties to take that chance. I have another matter which is dependent on this matter being completed. Don't forget that we lose one day for the Labour Day holiday on 7 May.

I will, as soon as we possibly can, deliver to you a list of the witnesses whom we say it is essential for the prosecution to call. That may assist you in assessing the likely length of the trial. That will, nevertheless, take a couple of days, and will distract us from our main task of preparing our case for trial.

I am not available either today or tomorrow. I have an 8:45am meeting on Wednesday, and am a witness in the Court of Appeal on Thursday (I cannot say at what time, and for how long, I will be required). I am available all day on Friday and after 11am on Wednesday (local time).

To ensure that we understand the issues in the trial, please confirm that the Crown case is as set out in the document titled "Case Outline" which was annexed to the Respondent's Submissions in the Supreme Court in January 2018.

The witness statements contain a wealth of inadmissible opinion evidence (from almost every witness). Please confirm that it is not intended to lead such evidence. This includes, just to give two examples, opinions about what is the effect of certain contractual terms and general orders. There could be a lot of legal argument just on this issue alone.

Please provide an unredacted copy of the advice from Mr Morters dated 6 April 2014.
I await your further advices.
Regards

Anthony Elliott

Barrister

Francis Burt Chambers

12th Floor Allendale Square 77 St. Georges Terrace PERTH WA 6000

Ph. (08) 9220 0452 Mob. 0422 961170

Fax. (08) 9325 9008 .

anthonv.elliott(S)francisburt.com.au

Liability limited by a Scheme approved under the Professional Standards Legislation

From: Mary Chalmers <[email protected]>
Sent: Monday, 9 April 2018 7:33 AM

To: Anthony Elliott <anthonv.elliott@francisburt,com.au>; '[email protected]'
<sharleena [email protected]>

Subject: R v McRoberts

Dear Tony

As discussed last week I am without a leader.

Somewhat miraculously I have managed to find someone suitable after getting a tip off that they had something resolve. However before I confirm the brief I need to make an application to the court to delay the start of the trial by one week - that is, to commence on 30 April 2018.

Can you please urgently advise your availability in the coming days (including today).
Can you please also advise:-

1. Whether defence will consent to our application

2. Whether defence will confirm on record that the trial will be completed by Friday 1^st June [that is, within the current allocated dates] - our silk can only take the brief on this basis as he has another trial commencing the following Monday.

I will also be seeking confirmation at the mention that the trial can properly commence on 30 April and will not be delayed by legal argument. If there is to be legal argument then that can take place in the preceding week.

Mary Chalmers Snr Crown Prosecutor
Director of Public Prosecutions | Department of the Attorney-General and Justice
Level 5, Old Admiralty Tower, 68 The Esplanade, DARWIN NT 0800 | GPO Box 3321, DARWIN NT 0801
Phone: +61 8 8935 7500 | Direct: +61 8 8935 7503 | Fax: +61 8 8935 7552
E-mail: [email protected] | Web:

Our Vision: Creating a fair and accessible legal system for the community

Our Values: Integrity | Courage | Respect | Professional Excellence | Commitment

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35.The accused continued to communicate with Kamitsis via personal messages throughout this time. However the accused chose to describe the relationship to his staff on 2 May, his conflict of interest was direct and substantial. It was improper for the accused to have any involvement in Operation Subutai from 2 May on. The accused knew this[214] yet between 2 May 2014 and 17 November 2014 the accused became and remained involved in Operation Subutai.
36.During that time Operation Subutai went from being declared a Major Crime by Assistant Commissioner Kershaw on 30 May 2014[215] with a search

warrant issued and about to be executed on 4 June 2014[216], to being the subject of an interagency taskforce looking at a civil debt recovery process from 26 June 2014[217].
37.Between 2 May 2014 and 17 November 2014, the accused did a number of things to devise, implement and champion a civil debt-recovery process in respect of all suspect travel agents (including Kamitsis), as an alternative to the criminal investigation. Further, the prosecution allege, he intended to frustrate and deflect his officers from pursuing the criminal investigation into suspected fraud on the part of Kamitsis.
38.The conduct alleged as tending to pervert the course of the criminal investigation into Kamitsis comprises (inclusive of circumstantial facts going to method and timing of frustration and deflection, and relationship between the investigative target Kamitsis and the accused) :-
a.    Meeting with Notaras 7 May 2014: In the context of the intimate relationship with Kamitsis and his knowledge of the criminal investigation into her suspected fraud, on 7 May 2014 the accused met for coffee with Len Notaras, the then Chief Executive of DoH. He raised with Notaras the possibility that the PCTCS investigation should proceed as a civil matter whereby travel agents would be issued with debt notices and asked to show cause as to why they should not repay funds. The accused stated that a criminal investigation would attract unwanted media attention and could affect the reputation of the NT travel industry and NT Government. The accused told Notaras that Kamitsis (known socially to Notaras) was one of the suspect travel agents[218].
b.    2^nd meeting with Notaras 16 May 14: On 16 May 2014, having been overseas between 8 and 12 May, the accused had a second informal and unscheduled meeting with Notaras to suggest that they jointly brief the Chief Minister and Health Minister regarding Operation Subutai[219].
c.    Frustrating the Winnellie Travel search warrant 4 June 2014: Shortly before June 4 it came to the accused’s attention that Operation Subutai had been declared a Major Crime and that a search warrant had been authorised and issued for execution at Winnellie Travel business premises on 5 June. Pauline Benaim, Executive Assistant to the accused, organised a meeting for 3.30pm between the accused, Payne and Kershaw. At that meeting the accused stated that he was not satisfied that the threshold for the execution of the Winnellie Travel search warrant had been reached and raised a number of issues querying both the criminal investigation and the DPP advice. He told

the meeting words to the effect of “this matter is not ready to go to an overt investigation. We need to pursue an alternative course of action”[220]. As a result of the accused’s interceding, the approval for the warrant was withdrawn. The accused first proposed a civil remedy to his staff at this meeting and told them that he intended to brief the Chief Minister and the Minister for Health. [221]. The accused's purported concerns were conveyed via Kershaw to Blake to address in the form of 6 questions to be answered[222]. These were addressed by Blake in a return email on 5 June 2014[223].
As a result of the accused’s action on 4 June, Kershaw tasked Fuller on 10 June to seek a review of a DPP advice recommending prosecution by approaching the author Mr Morters’ superior, the Director of Public Prosecutions, Mr Jack Karczewski QC[224]. Fuller was also to provide a briefing paper to address some of the other concerns stated by the accused on 4 June.
d. Possession of the investigation file from 19 June 14: At a meeting on 19 June 2014 the accused took possession of the Operation Subutai investigation file which included the test brief relating to Kamitsis[225]. The file was accompanied by a briefing paper prepared by Blake. The accused held on to the file and referred to it at a meeting on 23 June.
e. Undermining the criminal investigation: On 20 June 2014, the accused, after examining the Operation Subutai file, stated to Kershaw “surely after all this time we have more evidence on other travel agents rather than the one”[226] (referring to Kamitsis/ Winnellie Travel).
On 23 June 2014, the accused called an Operation Subutai meeting with Payne, Kershaw, Fuller and Sims at which he displayed detailed knowledge of the investigation and was critical of it, including of the single focus on Winnellie Travel[227]. At the meeting Sims provided a briefing in an attempt to justify resuming overt criminal action with respect to Winnellie Travel and Kamitsis[228] but was unsuccessful. The accused kept possession of the file and wanted a further meeting on 25 June, being the day before he was due to speak to the Chief Minister about the matter.[229] On 24 June, further spreadsheets and information were supplied to the accused.

f.     Proposing the inter-agency taskforce to his staff, meeting 25 June:
On 25 June 2014, the accused called a meeting of his staff to discuss Operation Subutai[230]. The meeting was attended by the accused, Chalker (incoming Acting Deputy Commissioner) Payne, Fuller, Sims and Blake. The accused told the meeting that he knew Kamitsis but did not have a conflict of interest. He asked Blake for a list of all the travel agents involved. The accused told the meeting that he had considered how best to progress the investigation (including the investigation into Kamitsis) and had come up with the idea of an inter-agency taskforce and that he was intending to talk to the Chief Minister/ Minister for Police and the Health Minister about forming such a taskforce. The accused told the meeting that the primary goal was to recover the misspent funds. The accused stated that criminal investigation would only follow if funds were not repaid under the recovery process and that simultaneous warrants on all agents was preferred in that event.
g.    Obtaining Ministerial sanction for civil remedy through interagency taskforce, meeting 26 June: The accused intended to brief the Minister and CEO DoH during the week 16 June, in furtherance of a proposed civil remedy[231] (although this did not occur until 26 June). On 26 June 2014, at the accused’s request[232], a meeting was held between himself, Notaras, the Minister for Health Robyn Lambley, and Chief Minister/Minister for Police Adam Giles. The accused did not take any of the Operation Subutai investigators or senior staff with him to the meeting. At this meeting the accused briefed those present on Operation Subutai, mentioning that there were a group of eight who were more serious[233]. Adam Giles recalls the accused specifically mentioning Flight Centre as one of the eight. The accused proposed that letters of demand be sent to the travel agents and said he was concerned about the impact on the travel industry[234]. The accused did not inform his Minister (Giles) of the intimate relationship with Kamitsis. Giles told the accused to "go hard" on the eight travel agents in pursuing a criminal investigation and prosecution as he did not believe there would be any impact upon the tourism industry[235]. Notaras advised that there was no issue if the investigation immediately entered an overt phase or if time was to be taken to obtain further information. During the meeting the Ministers sanctioned the formation of an inter-agency Taskforce to deal with the suspected fraud of the part of travel agents including Kamitsis.
h.    Promoting the civil-remedy to stakeholders. 30 June: On 30 June 2014, the accused organised and attended a meeting with Notaras and public servants from the Departments of Justice and of Treasury[236]. The accused was not accompanied by any Operation Subutai investigator
or member of his executive. He outlined his scheme for civil recovery to the meeting stating that to minimise potential damage to the NT government there was a need for a “softly, softly” approach. Jodie Ryan the then Under-Treasurer, recalls the accused specifically mentioning Flight Centre as one of a group of more serious suspects and states that the accused told the meeting it was unlikely that NTPol could conduct a successful criminal prosecution due to lack of evidence and insufficient DoH record keeping[237].
i.     Directing strategy of the taskforce As a result of the accused’s conduct since the 25 June meeting, Blake and other NTPol investigators were told by Fuller on 7 July 2014 that accused had issued an instruction that any and all criminal investigations into the PCTCS (including Kamitsis) were to cease immediately.
On or about 2 July 2014, the accused informed Payne that a joint taskforce would be formed between NTPol and the Departments of Health, Treasury and Justice, with the DoH taking the lead. He said that civil matters would be dealt with through repayment and that any criminal offending would be referred to NTPol in the event of non-payment.
The accused directed Payne to design a strategy for a civil based remedy for the taskforce which Payne did and the accused told him it was “ingenious”. In accordance with the accused’s direction, on 14 July 2014, Payne introduced the investigation strategy to the Operation Subutai investigators which included:-
Stage 1 - With the cooperation of travel agents, reconcile DoH and travel agent records to identify overpayments, and recover monies.
Stage 2 - if travel agents do not cooperate then DoH records to be reconciled with carrier (airline) records.
Stage 3 - if travel agents do not cooperate and stage 2 outcomes provide support then elevate to collection of evidence by search warrant/ witness statements (seniors) with a view to prosecution.

j.     Monitoring the taskforce: On 6 August, the interagency taskforce met. Attendees included Blake and the new A/AC Crime David Proctor from NTPol, Jan Currie from DoH and Greg MacDonald from AGD. At the meeting there was confusion about the role and responsibilities of the taskforce and concerns over criminal vs civil action[238]^.After the meeting Proctor was summoned by the accused for an “urgent verbal briefing”[239]. Proctor briefed the accused[240] including the concerns over criminal vs civil action.
k.      Querying whether Blake should be removed from the taskforce, 12 August: On 7 August 2014, Blake sent an email to taskforce members and Proctor. In it Blake outlined his concerns with the process including that by combining the civil and criminal approach, the success of both were placed in jeopardy, that if proof was obtained to the criminal standard the civil standard was also, by definition satisfied and that the frauds were serious and the prospects of success were good. Proctor and Notaras brought the email to the attention of the accused[241] and on 12 August 2014 briefed Payne about it on Payne’s return from leave (and resumption of the AC role)[242]. On 12 August 2014, the accused queried with Payne whether Blake should be removed from the Operation Subutai team altogether as he was not “the right man for the job”[243].
l.      Causing a letter of demand to be sent to Kamitsis, 1-3 September:
As a result of the accused’s actions, letters of demand to the travel agents, including Kamitsis, were signed by the CE DoH on 1 September 2014[244] and sent out on 3 September.
m.Monitoring Kamitsis’ compliance with civil recovery process while urging her to use Viber for their communications, 13 October:
At 6:16pm Friday 10 October 2014 Mr Murphy on behalf of Kamitsis emailed the interagency taskforce members including Notaras, attaching a response to the civil notice. Notaras forwarded the email it to the accused at 7:47am Monday morning saying “For information....have passed to the team”. The accused emailed back “Thanks Len. Encouraging![245]”. The accused continued to communicate with Kamitsis and on 16 October messaged her “Use Viber. Much safer way to communicate”. On 19 October when Kamitsis continued to use messaging he texted “Use Viber!”. They continued to communicate on Viber during the last part of October. The accused left on an overseas trip at the end of that month.
On 1 October 2014 Sims notified the taskforce that the 30 day compliance period for the demand letters was now up[246]. This update included that Winnellie Travel had provided “nil response”. On 3

October Kamitsis communicated with the taskforce staff to advise that lawyer Ray Murphy was assisting her[247]. On 6 October the taskforce staff contacted Ray Murphy[248]. On 8 October[249], Kamitsis messaged the accused “are you home?? and he responded “yes, what are u up to? She replied “on my way to you for a glass of wine?” and the accused said “No. here isn’t a good idea”. When she asked why he replied it was “too hard to explain on text” and that he would “walk over (to Raffles) via bottle shop”. She later messaged “thanks for a lovely evening soooo nice to see you”.

NT Police resume carriage of the criminal investigation
39.By 5 November Kamitsis had failed to respond satisfactorily to her letter of demand and the taskforce resolved to refer the matter back to NTPol for criminal investigation if she had not done so by 11 November[250]. On 12 November 2014 that referral was made, with the expectation that a search warrant would be executed at Winnellie Travel on Saturday 15 November 2014.
40.The accused remained overseas, continuing in his personal communication with Kamitsis. On 7 October Sims obtained call charge records for Kamitsis’ mobile phone.
41.Sims decided to execute the warrant a day early specifically on the basis that the accused would be in transit at the time[251].
42.The warrant was executed at 11.25am. Kamitsis was arrested and transported to the watch house at 11.40am.
43.Examination of the phone data seized under warrant over the weekend of 15 and 16 November 2014 revealed the nature of the relationship between McRoberts and Kamitsis to investigators.
44.Kershaw raised with the accused the relationship he had with Kamistis on 17 November 2014, acting on the information of Payne. The accused denied a sexual relationship with Kamitsis and said that he would remove himself from Operation Subutai and the joint taskforce. The accused removed Payne from the Operation Subutai chain of command[252].
45.On 14 January 2015, the accused resigned as the Commissioner of the Northern Territory Police after he was told that his Minister had lost confidence in him as a result of his conduct during Operation Subutai.

The Queen v John Ringland McRoberts
DRAFT Aide memoire to jury
The accused is charged on indictment with a single count that between 2 May 2014 and 17 November 2014 he attempted to pervert the course of justice.
A person is guilty of attempting to pervert the course of justice when that person engages in conduct that has the tendency to pervert the course of justice and does so with the intention of perverting the course of justice.
Whether or not the conduct succeeds in perverting the course of justice is irrelevant. It is the tendency of the conduct that is decisive.
In the context of a police investigation, conduct has a tendency to pervert the course of justice if it has a tendency to affect a Court’s capacity to do justice arising out of that investigation. The tendency of the conduct is to be judged on the risk it poses to the course of justice in the ordinary course. This is so even if, in the particular case, there was no actual risk of perverting the course of justice.
In the present case, in order to prove the accused guilty of the charge, the prosecution must prove beyond reasonable doubt that:
1.The accused engaged in conduct, that is, that he did one or more of the acts specified in the Schedule below; and
2.That the conduct engaged in by the accused had a tendency to frustrate or deflect the police from fully and freely pursuing the criminal investigation into suspected fraud on the part of Northern Territory travel agents including Xana Kamitsis; and
3.That, in engaging in such conduct, the accused intended to frustrate or deflect the police from fully and freely pursuing the criminal investigation into suspected fraud on the part of Northern Territory travel agents including Xana Kamitsis.

A number of discrete acts are relied upon by the prosecution, as proof of the offence charged. You must be unanimously satisfied beyond reasonable doubt as to 2. and 3. above with respect to at least one of the acts specified in the Schedule before you are able to find the accused guilty of the count charged.

---------------------

[1] See pps 77-124.

[2]P1 p 103.

[3]P1 p 104.

[4]P1 p 125.

[5]P1 p 137.

[6]Tr pps 259-260.

[7]Tr pps 230, 262-263, 408. In fact, Ms. Da Silva was Ms. Kamitsis’ mother.

[8]See emails at P1 p 238.

[9]P1 pps 239-241.

[10]P1, p 261-263.

[11]P1 268.

[12]Tr 68-69.

[13]Tr 567.

[14]Tr 632.

[15]Tr 751.

[16]Tr 68.

[17]Tr 41; Exhibit D1.

[18]Exhibit P1, pp 7-8 clauses 33, 34, 36 and 43.

[19]Exhibit P1, pp 24, clauses 64 and 65. P1, p 467.

[20]There were earlier versions of these allegations which I will discuss later. Counsel for the accused submitted that the Crown had “changed the goal-posts”. I found that it had not.

[21]P1 pp 302-303; 334-336; Kershaw, tr 570-572.

[22]Except for P1 p 312.

[23]This comprised Assistant Commissioner Kershaw, Commander Fuller, Det Sgt Blake and Det Senior Constable Larsen-Smith: see P1 p 332-333. Although the record of the meeting is dated 4 May 2014, it was proven that the meeting was held on 4 June 2014.

[24]P1 343-345.

[25]This is a document which sets out how it is proposed to execute the warrant. It required Morgan’s approval before the warrant could be executed. See P1 pp 348-358.

[26]See P1 p 361.

[27]Tr p 574-575.

[28]Tr 755.

[29]Tr 576.

[30]Tr pps 576-578; 582; 657-658.

[31]See P1 367.

[32]Tr pps 756-758; 657-658.

[33]As to the relationship with “L” see Agreed Facts Ext P 10 para 11 and text messages, Red Tab, 32-39 6/5/2012; Red Tab 837-848 23/9/12. Evidence of Assistant Commissioner Murphy, the accused’s Chief of Staff tr 527-528.

[34]Tr 1026-1027.

[35]Tr 1061.

[36]Tr 1062, 1066.

[37]P1 p 369.

[38]P1 375 and P1 384.

[39]Tr 1028.

[40]See tr 584 and P1 p 391.

[41]Tr 759.

[42]P1 385.

[43]Tr 761.

[44]Tr pp 1290-1291.

[45]P1 394. The spreadsheets are at P1 395-397.

[46]P1 395.

[47]See minutes P1 117-118.

[48]Tr 309- 313; 458-461.

[49]Tr 774.

[50]Tr 774-776.

[51]Tr 1292-1296.

[52]Tr 213-214.

[53]Tr 222.

[54]Tr 1029-1030.

[55]Tr 1164-5; 1184, 1186.

[56]Tr 1031-1033.

[57]Tr 1032.

[58]Tr 1097.

[59]Tr 1098.

[60]Tr 1224.

[61]Tr 1224-1225.

[62]Tr 776. See also tr 777; 782-783.

[63]Tr 782-783.

[64] See P1 497.

[65]Tr 788.

[66] P1 p 666.

[67]P1 pps 730-731.

[68][1996] 1 Qd R 418 at 437-441; (1995) 129 ALR 546 at 565-568.

[69](1992) 174 CLR 268.

[70]At p 277-278.

[71](1992) 174 CLR 268 at 283.

[72](1992) 174 CLR 268 at 284.

[73][1976] 1 QB 373.

[74]At 391-392.

[75]At 392-393.

[76](1993) 1 WLR 364.

[77][1891] 1 QB 360.

[78][1980] 1 WLR 763 at 766-767.

[79](1992) 174 CLR 268 at 280.

[80][2003] EWCA Crim 991.

[81]At para 10.

[82][2007] NTCCA 11 at [40].

[83] Statement Peter BRAVOS dated 12 May 2015 AnnexPBRA-02 letter of appointment. PBRA-04 Determination of Terms and Conditions of Office where similar provision is at par 66-67 and PBRA-11 being the terms applicable from 12 May 14 onwards; PBRA-06 Commission, PBRA-10 Commission on renewal of contact 12 May 2014: PBRA-11 Determination of Terms and Conditions of Office on renewal dated 12 May 2014;

[84] Supra particularly PBRA-02 and PBRA-11 both at clause 74.

[85] Statement of Adam Giles dated 12 May 2015 at [17] and statement of Peter Chandler dated 7 August 2015 at par 12

[86] See extracted data spreadsheets annexed to the statements of Stephen Cook dated 15 September 2016 and 19 September 2016- SCOO-01 to, SC00-07- as to the historical sexual relationship there are many messages that allude to it. An example is at SCOO-01 message 38 where Kamitsis slates (inter alia) "1 still don’t know why you and 1 couldn’t work”; message 95 “Remember making that bed a few times with you”; see also the messages set out in these submissions at par’s 23, 24, 50(p) though note that the prosecution rely on the body of messages as a whole. Kamitsis’ iPhone message and Viber message continuity is evidenced through the following witness statements: Clint SIMS statement of 28 February 2015 (seizure of phone at execution of warrant); Syndee GALATI statement of 8 December 2014 (exhibits officer records iPhone as CS/005); George CIOLKA statement of 7 January 2015 (records exhibited items into PROM1S); GALATI statement of 4 March 2015 (confirms item CS/005 was logged in PROM1S as exhibit 426720/004); Craig WINDEBANK statement of 2 March 2015 (download of data from item 426720/004); Anthony LAWRENCE statement of 6 April 2017 (copies extracted data from item 426720/004 onto portable hard drive); Stephen COOK statements of 15 September 2016 and 19 September 2016 (receipt of portable hard drive and extraction of relevant data to produce SCOO-02-07

[87] SC00-01 message 165 the accused tells Kamitsis “I have so many lovely things u have given me”. See also message 403 from Kamitsis to accused regarding overseas work-related travel "Enjoy your upgrades” and accused’s response at 405 saying thank you. Message 442 “I got you an upgrade on the way home”; Message 554-556 regarding a hotel suite and wine arranged by Kamitsis when the accused was on official travel to Alice Springs; see also additional references in the substantive submissions eg at par [21]

[88] SCOO-01 messages 143-147

[89] SCOO-0l messages 230-238

[90] Statement of Pauline Benaim dated 30 June 2015.

[91] See in this regard annexed to statement of Bravos supra. PBRA-19 being a general broadcast message to all members of NTPol reminding them of the Conflict of Interest requirements of the Code of Conduct and Ethics and annexing the relevant form (for the latter see 2^nd statement of Bravos, dated 7 August 2015 at par 5-6 and annexure PBRA-23

[92] Refer footnote 8 above

[93] SCOO-0I message 575

[94] Initially named Operation Holden.

[95] Statement of Jeffrey Moffet dated 5 Nov 15 at par 5

[96] Statement of Jason Blake dated 5 May 2015 at par 9 and see Annexure JBLA-01

[97] Annexure .IBLA-01 supra at p25

[98] Annexure JBLA-02

[99] Annexure JBLA-03 and statement of Jeffrey Moffet dated

[100] The referrals are both annotated with a handwritten date and initials "JRM”

[101] For example possible embarrassment to NTG due to inadequate systems within DoH, and possible damage to the reputation of the NT travel industry -sec annexure to statement of Jason Blake dated 5 May 2015 JRLA-06 "Talking points for Supt O'Brien”

[102] Supra, annexure JBLA-06

[103] Annexure JBLA-07 at 3.2 "focus of in (sic) initial enquiries to undertake a covert investigation targeting one count involving Winnellie Travel” and see the identified action items all related to Winnellie Travel

[104] Statement of James .1 O’Brien dated 13 April 2015 par 13; statement of Jason Blake 5 May 2015 par 23

[105] Statement of Pauline Benaim PBEN-04 Latitute Travel Itinerary

[106] See SCOO-02 annexed to the statement of Stephen Cook dated 15 Sept 2015 message 4767

[107] The Briefing was drafted but did not end up being submitted as there was no progress on the issue of DoH funding: a forensic accountant - see statement of Michael Murphy par 9-11

[108] SCOO-02 messages 4788-4823

[109] SCOO-02 messages 4878-4896

[110] SCOO-02 messages 4932-4953

[111] Statement of Reece Kershaw dated 30 June 2015 at par 10; statement of Mark Payne dated 12 May 15 at pars -13; Statement of James O’Brien dated 13 April 2015 pars 19-23

[112] Statement of James O’Brien dated 13 April 2015 par 20

[113] Statement of Reece Kershaw dated 30 June 2015 at par 11: statement of Mark Payne dated 12 May 15 at par 10; Statement of James O’Brien dated 13 April 2015 par 21

[114] Statement of Blake but see in addition Statement of David Morters dated 29 June 2015 and annexure DMOR- 01

[115] Supra DMOR-0l p3

[116] Minutes annexed to statement of Blake supra JBLA-10

[117] Major Crime declaration dated 30 May 2014 annexed to statement of Kershaw RKER-02

[118] Statement of Kershaw supra at par 14

[119] Statement of Kershaw supra par 16

[120] Refer to submissions on ‘Attempt to pervert the course of justice' below

[121] This is a matter of inference to be drawn from various sources but including that he must have known, by virtue of his position and experience in law enforcement, that he should not have had any role at all in Operation Subutai because of the relationship: he was not truthful with his staff or the witness Gary Barnes as to the true nature of his relationship with Kamitsis and/or the existence of a conllict of interest (sec statement Gary Barnes dated 13 May 2015 folder 1); Far from ensuring he was outside of the chain of command as regards any investigation involving Kamitsis. the accused effectively took over Operation Subutai; During the continued investigation into Kamitsis he privately communicated with her including trying to ensure that their communications were covert by instructing her to use ‘Viber for example on 16 Oct 14 "Use Viber much safer way to communicate'' SCOO- 02 message 5868 and 5383. See further these submissions at par [50]

[122] Statement of Reece Kershaw dated 30 June 2015 at par 14 and annexure RKBR-02

[123] Statement of Reece Kershaw dated 4 June 2014 at par 16; statement of Jason Blake dated 5 May 2015 pars 38 -39 and annexure JBLA-14

[124] Statement of Jason Blake dated 5 May 2015 pars 57-61

[125] See statement of Leonard Notaras dated 29 May 2015

[126] supra

[127] Statement of Mark Payne dated 7 May 2015 at par 25

[128] Statement of Reece Kershaw dated 30 June 2015 pars 18-20

[129] See Annexure JBLA-16 annexed to statement of Jason Blake

[130] RKER-04 and par 5 of his statement

[131] The DPP refused to review the advice of his in-house fraud Snr Crown Prosecutor - sec statement of Jack Karczewski QC dated 27 April 2015 at par 14 and annexure WKAR-01. Both the DPP and Morters considered the request for review unusual.

[132] Statement of Reece Kershaw dated 30 June 2015 annexure RKF.R-03

[133] Statement of Fuller supra at par 26-27; statement of Kershaw dated 30 June 2015 at par

[134] See statements of Blake at par 54; O'Brien at par 30. Payne at par 28. Sims at pars 7 and 9

[135] Statement of Kershaw dated 30 June 2015 at par 13

[136] Statement of Reece Kershaw dated 30 June 2015 par 31

[137] Statement of Clinton Sims dated 7 May 2015 par 12-14

[138] Statement of Mark Payne dated 7 May 2015 par 33

[139] The date noted in the documents was originally 16 June, but no meeting occurred on that date.

[140] Statement of Clinton Sims dated 7 May 2015 par 19-20

[141]Statement of Adam Giles dated 12 May 2015 par 6. statement of Leonard Notaras

[142] Supra Giles at par 7

[143] Supra Notaras par 11

[144] Supra Notaras par 12

[145] Notaras pas 14-16

[146] Statement of Jodie Ryan dated 5 May 2015 at par 11

[147] SCOO-02 message 5493-5496

[148] SCOO-02 message 5868

[149] SCOO-02 messages 5644-5705

[150] From 4 August message 5046 -5081

[151] Statement of David Proctor dated 9 April 2015 par 13

[152] Supra par 15

[153] Statement of David Proctor dated 9 April 2015 par 16

[154] Statement of David Proctor dated 9 April 2015 annexure DPRO-02

[155] Statement of Mark Payne dated 7 May 2015

[156] ibid

[157] There is conflicting evidence regarding the dates, the dale of I September is taken from the taskforce Minutes of a meeting held on 5/11/14 annexed to the statement of Clint Sims - annexure CS1M-13, at 2.2 - and appears to be the correct date.

[158] Statement of Recce Kershaw dated 30 June 2015 par 36

[159] SCOO-02 messages 5180-5183

[160] SCOO-02 messages 5215-5255

[161]^>SCOO-02 messages 5257-5771

[162] SCOO-02 messages 5788-5796 - the inference the prosecution assert may be drawn is that the accused was aware that investigators were closing in on Kamitsis and he wanted her off the Crimestoppers Board to ensure NTPol. including himself, were not embarrassed when the inevitable occurred.

[163] Statement of Greg MacDonald dated 28 June 2015 annexure GMAC-04(h) email from Sims to Jan Currie cc Vicki Godden

[164] GMAC-04(j) emails to and from Kamitsis

[165] GMAC-04(j) emails to and from Greg MacDonald finalising correspondence to go to Ray Murphy

[166] SCOO-02 messages 5264-5284

[167] GMAC-04(k) and additionally see statement of Brian Coe annexing email's from the accused’s work computer contained on disc accompanying the brief (extracted email annexed hereto and marked “A”)

[168] Statement of Mark Payne at par 66

[169] Statement of Sims par 39

[170] And, at the time. Acting Chief Minister.

[171] See statements of Gary Barnes dated 13 May 2015 (entire statement); Craig Allen dated 11 May 2015 (entire statement); Michael Grant (now Chief Justice Grant) dated 2 July 2015: and Peter Chandler dated 30 June 2015,

[172] See extracted data spreadsheets annexed to the statements of Stephen Cook dated IS September 2016 and 19 September 2016- SCOO-01 to. SCOO-07- as to the historical sexual relationship there are many messages that allude to it. An example is at SCOO-O 1 message 38 where Kamitsis states (inter alia) "I still don't know why you and I couldn’t work”; message 95 “Remember making that bed a few times with you”; see also the messages set out in these submissions at par’s 23, 24. 50(p) though note that the prosecution rely on the body of messages as a whole. Kamitsis’ iPhone message and Viber message continuity is evidenced through the following witness statements: Clint SIMS statement of 28 February 2015 (seizure of phone at execution of warrant); Syndee GALATI statement of 8 December 2014 (exhibits officer records iPhone as CS/005); George CIOLKA statement of 7 January 2015 (records exhibited items into PROM1S); GALATI statement of 4 March 2015 (confirms item CS/005 was logged in PROM1S as exhibit 426720/004); Craig WINDEBANK statement of 2 March 2015 (download of data from item 426720/004); Anthony LAWRENCE statement of 6 April 2017 (copies extracted data from item 426720/004 onto portable hard drive); Stephen COOK statements of 15 September 2016 and 19 September 2016 (receipt of portable hard drive and extraction of relevant data to produce SCOO-02-07

[173] Statement Peter BRAVOS dated 12 May 2015 AnnexPBRA-02 letter of appointment, PBRA-04 Determination of Terms and Conditions of Office where similar provision is at par 66-67 and PBRA-11 being the terms applicable from 12 May 14 onwards; PBRA-06 Commission, PBRA-10 Commission on renewal of contact 12 May 2014: PBRA-11 Determination of Terms and Conditions of Office on renewal dated 12 May 2014;

[174] PBRA-04 page 8 (clause 64); PBRA-11 page 9 (clause 74)

[175] PBRA-14 page 6 (clause 33.1)

[176] PBRA-14 page 6 (clause 33.2)

[177] PBRA-14 page 6 (clause 33.3)

[178] PBRA-14 page 6 (clause 34)

[179] PBRA-14 page 7 (clause 43)

[180] PBRA-14 page 8 (clause 49)

[181] PBRA-14 page 9 (clause 60)

[182] PBRA-14 page 9 (clause 62)

[183] PBRA-14 page 9 (clause 63)

[184] Statement of Adam Giles dated 12 May 2015 at [ 17] and statement of Peter Chandler dated 7 August 2015 at par 12

[185]Statement of Pauline Benaim dated 30 June 2015.

[186] See in this regard annexed to statement of Bravos supra. PBRA-19 being a general broadcast message to all members of NTPol reminding them of the Conflict of Interest requirements of the Code of Conduct and Ethics and annexing the relevant form (for the latter see 2^nd statement of Bravos, dated 7 August 2015 at par 5-6 and annexure PBRA-23

[187] Refer footnote 8 above

[188] SCOO-0l message 575

[189] Initially named Operation I [olden.

[190] Statement of Jeffrey Moffet dated 5 Nov 15 at par 5

[191] Statement of Jason Blake dated 5 May 2015 at par 9 and sec Annexure JBLA-01

[192] Annexure JBLA-01 supra at p25

[193] Annexure JBLA-02

[194] Annexure JBLA-03 and statement of Jeffrey MotTet dated

[195] The referrals are both annotated with a handwritten date and initials “.IRM"

[196] For example possible embarrassment to NTG due to inadequate systems within Dol l, and possible damage to the reputation of the NT travel industry - sec annexure to statement of Jason Blake dated 5 May 2015 JBLA-06 "Talking points for Supt O’Brien"

[197] Supra, annexure JBLA-06

[198] Annexure JBLA-07 at 3.2 “focus of in (sic) initial enquiries to undertake a covert investigation targeting one count involving Winnellie Travel” and see the identified action items all related to Winnellie Travel

[199] Statement of James .1 O'Brien dated 13 April 2015 par 13: statement of Jason Blake 5 May 2015 par 23

[200] Statement of Pauline Benaim PBEN-04 Latitute Travel Itinerary

[201] See SCOO-02 annexed to the statement of Stephen Cook dated 15 Sept 2015 message 4767

[202] The Briefing was drafted but did not end up being submitted as there was no progress on the issue of DoH funding a forensic accountant - see statement of Michael Murphy par 9-11

[203] SC00-02 messages 47S8-4823

[204] SC00-02 messages 4878-4896

[205] Sc00-02 messages 4932-4953

[206] Statement of Reece Kershaw dated 30 June 2015 at par 10: statement of Mark Payne dated 12 May 15 at pars 5-13: Statement of James O'Brien dated 13 April 2015 pars 19-23

[207] Statement of Blake but see in addition Statement of David Morters dated 29 June 2015 and annexure DMOR- 01

[208] Supra DMOR-01 p3

[209] Minutes annexed to statement of Blake supra JBLA-10

[210] Major Crime declaration dated 30 May 2014 annexed to statement of Kershaw- RKER-02

[211] Statement of Kershaw supra at par 14

[212] Statement of Kershaw supra par 16

[213] Refer to submissions on ‘Attempt to pervert the course of justice’ below

[214] This is a matter of inference to be drawn from various sources but including that he must have known, by virtue of his position and experience in law enforcement, that he should not have had any role at all in Operation Subutai because of the relationship; he was not truthful with his staff or the witness Gary Barnes as to the true nature of his relationship with Kamitsis and/or the existence of a conflict of interest (sec statement Gary Barnes dated 13 May 2015 folder I); Far from ensuring he was outside of the chain of command as regards any investigation involving Kamitsis, the accused effectively took over Operation Subutai; During the continued investigation into Kamitsis he privately communicated with her including trying to ensure that their communications were covert by instructing her to use ‘Viber’ for example on 16 Oct 14 "Use Viber much safer way to communicate'' SCOO- 02 message 5868 and 5383. See further these submissions at par |50]

[215] Statement of Reece Kershaw dated 30 June 2015 at par 14 and annexure RKER-02

[216] Statement of Reece Kershaw dated 4 June 2014 at par I6: statement of Jason Blake dated 5 May 2015 pars 38 -39 and annexure JBLA-14

[217] Statement of Jason Blake dated 5 May 2015 pars 57-61

[218] See statement of Leonard Notaras dated 29 May 2015

[219] supra

[220] Statement of Mark Payne dated 7 May 2015 at par 25

[221] Statement of Reece Kershaw dated 30 June 2015 pars 18-20

[222] See Annexure JBLA-16 annexed to statement of Jason Blake

[223] RKF.R-04 and par 5 of his statement

[224] The DPP refused to review the advice of his in-house fraud Snr Crown Prosecutor - see statement of Jack Karczewski QC dated 27 April 2015 at par 14 and annexure WKAR-01. Both the DPP and Morters considered the request for review unusual,

[225] Statement of Fuller supra at par 26-27; statement of Kershaw dated 30 June 2015 at par

[226] Statement of Reece Kershaw dated 30 June 2015 par 31

[227] Statement of Clinton Sims dated 7 May 2015 par 12-14

[228] Statement of Mark Payne dated 7 May 2015 par 33

[229] The date noted in the documents was originally 16 June, but no meeting occurred on that date.

[230] Statement of Clinton Sims dated 7 May 2015 par 19-20

[231] Statement of Reece Kershaw dated 30 June 2015 annexure RKER-03

[232] Statement of Adam Giles dated 12 May 2015 par 6. statement of Leonard Notaras

[233] Supra Giles at par 7

[234] Supra Notaras par 11

[235] Supra Notaras par 12

[236] Notaras pas 14-16

[237] Statement of Jodie Ryan dated 5 May 2015 at par 11

[238] Statement of David Proctor dated 9 April 2015 par 13

[239] Supra par 15

[240] Statement of David Proctor dated 9 April 2015 par 16

[241] Statement of David Proctor dated 9 April 2015 annexure DPRO-02

[242] Statement of Mark Payne dated 7 May 2015

[243] ibid

[244] There is conflicting evidence regarding the dates, the date of I September is taken from the taskforce Minutes of a meeting held on 5/11/14 annexed to the statement of Clint Sims - annexure CS1M-13. at 2.2 - and appears to be the correct dale.

[245] GMAC-04(k) and additionally see statement of Brian Coe annexing emails from the accused's work computer contained on disc accompanying the brief (extracted email annexed hereto and marked "A")

[246] Statement of Greg MacDonald dated 28 June 2015 annexure GMAC-04(h) email from Sims to Jan Currie cc Vicki Godden

[247] GMAC-04(j) emails to and from Kamitsis

[248] GMAC-04(j) emails to and from Greg MacDonald finalising correspondence to go to Ray Murphy

[249] SCOO-02 messages 5264-5284

[250] Statement of Mark Payne at par 66

[251] Statement of Sims par 39

[252] Statement of Kershaw par 46