Elferink ups the ante, Delia folds

Delia Lawrie’s announcement today that she was resigning as NT Labor Opposition Leader isn’t really surprising in light of yesterday’s news that Attorney-General John Elferink had referred her conduct over the Stella Maris controversy to both NT Police and the Director of Public Prosecutions for investigation:

At her office in her electorate of Karama, Ms Lawrie said she would be focusing on her upcoming legal problems. …

“The news that the CLP were referring the Stella Maris 1 to the Director of Public Prosecution and the police makes me want to focus my mind with my legal team.”

In two previous articles I discussed aspects of the current controversy surrounding NT Labor Opposition Leader Delia Lawrie in the wake of adverse findings made against her in the Supreme Court after she unwisely pursued judicial review proceedings challenging on natural justice grounds earlier adverse findings against her by a Commission of Inquiry (effectively a royal commission) headed by former Australian Crime Commission boss John Lawler. The judicial review proceedings failed after Lawrie was forced to disclose confidential lawyer/client communications.  Southwood J found that the emails revealed that, far from being denied a fair opportunity to be heard before Commissioner Lawler, Lawrie and her lawyers had made a calculated decision to “disengage … ignore … and discredit” the Commission from a fairly early point in its hearings.

My previous articles mainly focused on deficiencies in the Commission proceedings and report, as well as reasonably arguable appeal points Lawrie might pursue against aspects of Southwood J’s decision.  However, the Attorney-General’s referral of Lawrie’s conduct for investigation of possible criminal conduct raises further questions that need to be examined.

Some cautionary notes, however, are warranted.  First, although I’m a very experienced civil litigation lawyer I am not a criminal law expert, so my analysis should be read in that light. Secondly, criminal charges could conceivably be laid and a jury trial might even take place, so that any comments even at this early stage need to be careful and restrained.

Most importantly though, it really isn’t possible for any community member, even a lawyer, to make any definitive pronouncements on the likelihood of either charges or a conviction.  As far as I can tell, any conceivable criminal charges could only arise from the sworn affidavit material that Lawrie and her lawyers filed in the Supreme Court proceedings.  However, because the affidavits were never actually tendered or used in evidence in the proceedings, they are not in the public domain so we ordinary members of the public don’t know what they say.

Nevertheless, it’s a reasonable guess from the Notice of Facts Issues and Contentions filed by her lawyers (which are publicly available) that Lawrie’s affidavit may swear that she “relied” on a promise made by Commissioner Lawler that she would be notified of any proposed adverse findings before their public release and given an opportunity to make submissions.  The promise was not kept, but the Notice also pleaded that she and her lawyers “believed” on the basis of Lawler’s promise that there would be no adverse findings and therefore decided not to adduce any further evidence or make submissions.

If Lawrie swears to that “belief” in her affidavit then she might well have real problems with potential criminal liability.  On my assessment (and that of Southwood J) Lawrie held no such belief. Quite to the contrary, she told colleagues that she expected the Commission report to be “ugly”.

In those circumstances it is possible that Delia Lawrie could be charged with making a false statement in a document required to be made under oath contrary to section 118 of the NT Criminal Code, a crime carrying a potential 7 years imprisonment.

It is even conceivable that this conduct might be held to be an attempt to pervert justice contrary to section 109 of the Code, a crime carrying up to 14 years imprisonment. The availability of the latter offence appears to be less clear, because section 43BF(2) of the Code provides in relation to attempts:

For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence.

In relation to the rather different (and much more serious) crime of attempted murder, this requirement has been described as follows:

In order to be convicted of attempted murder, a prosecutor must show that the accused took a “direct step” towards killing the targeted victim. Courts have explained the requirement for a direct step by stating that a person must go beyond merely preparing to commit the crime, and instead cross over into actually perpetrating it. Preparation is thinking about committing the crime, talking about it, or otherwise planning to do it, while perpetration is taking an action that puts the plan in motion and that would result in the intended killing.

It would seem likely that tendering and relying on an affidavit containing a false statement might well constitute an attempt to pervert the course of justice, at least if it could be proved beyond reasonable doubt that it was intended to have a favourable influence on the outcome of the Supreme Court proceedings.  However, the affidavit was not tendered in evidence, only sworn and filed in the Court Registry.  I simply don’t know whether that would be likely to be held to be a sufficiently “direct step” towards commission of the actual offence, as opposed to merely preparing, planning and thinking about it.

Nevertheless, it’s certainly a serious situation and one that undoubtedly required Delia Lawrie’s resignation from the ALP leadership.  A conviction for swearing a false declaration would typically not result in a sentence of actual imprisonment, but the same can’t be said for perverting the course of justice.

The most that can be said at this stage from a political perspective is that any criminal proceedings are unlikely to be finalised before the Territory election due in August 2016.  That means Delia Lawrie would not be obliged to resign from Parliament before then, although whether her continuing presence even on the back bench will prove to be a major distraction for Labor under likely new Opposition Leader Michael Gunner remains to be seen.

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About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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derrida derider
derrida derider
8 years ago

she and her lawyers “believed” on the basis of Lawler’s promise that there would be no adverse findings … quite to the contrary, she told colleagues that she expected the Commission report to be “ugly”.

People can change their minds, so doesn’t this depend on the sequence? If she told people she thought the Commission a political hatchet job and was subsequently promised by the Commissioner that it wouldn’t be, then its quite plausible she would adjust her response accordingly.

That may or may not be what happened, but it would be hard to disprove in a criminal trial.

paul walter
paul walter
8 years ago

I wish I could add some
thing beyond admitting to a generalised sense of politicised legals and kangaroo courts. Is it the sort of thing Queenslanders are complaining that they fear might happen with Justice Carmody?

My sense is that the story is more to do with an ideologically based neolib objection to Delia Lawrie and to dealings involving Heritage property and a Trade Union.

Politics seems a dirty game when the law is used to “get” people, regardless of competence. It seemed ugly when Bill Clinton was subjected to a kind of a (Ken) Starr chamber back in the nineties and recently in Queensland, involving an MP accused of domestic violence. I wonder if Brandis and DR legislation was not a perversion of the basic idea and philosophy of law, also.