The Senate Estimates Legal and Constitutional Affairs [ pdf at 25] Committee last week saw AFP Commissioner Negus questioned about a 2005 letter leaked to Kessing this year that had not been disclosed to the defence or in evidence at the trial in 2007. Kessing's barrister has said the facts revealed in the letter would have had a significant effect on the trial, if he had known at the time. Commissioner Negus in response to questions from Senator Xenophon said while the letter had not been disclosed to the DPP or the defence, the information had been made available to the defence one way or another.
Senator XENOPHON: But it should have been disclosed.
Mr Negus: I think, in hindsight, it would have been practical to disclose the letter, but I do not think it is material to the outcome of the investigation or the prosecution.
Senator XENOPHON: It could have been tendered in evidence though. It could have been the subject of submissions by the defence case.
Mr Negus: Look, all of those things are possible, but it is not practical for me to sit here and review a case which was investigated five years ago. Judgments were made by the prosecutors and by the police at the time. Mr Kessing was convicted, he also appealed and his appeal was overturned.
CHRIS MERRITT: Attorney, I'd just like to ask you about the prosecution policy of the Commonwealth. A document that's leaked out of the AFP makes it very clear that the prosecution of whistleblower Allan Kessing there's some questions about it. The evidence that could have supported the defence and undermined the prosecution case was never revealed by the AFP. Are you worried about that?
McCLELLAND: Certainly any litigation on behalf of the Commonwealth needs to be undertaken in accordance with the model litigant principle and that includes an obligation to disclose to all parties all relevant facts that are in possession. So I'm not sure of the full details of it but I understand it’s something that is being examined. I don't know the relevance of it, what judgment was made as to why it wasn't or the extent to which it was disclosed but…
CHRIS MERRITT: Neither do I. I've asked the AFP and they refuse to explain themselves. Does someone need to get on top of this?
McCLELLAND: [I’ve explained] the basic principle is that all agencies need to be aware. Certainly not only Government lawyers but all agencies need to be aware of that model litigant principle that applies across the Commonwealth.
The exchanges at the hearing brought an intervention by Minister Ludwig, the minister on duty at the hearing, indicating that Mr Albanese may wish to clarify the record about what Senator Xenophon said Kessing said in this respect. Kessing case watchers await this with great interest. For those like me in this category, the Q&A follows including contributions from Roger Wilkins Secretary of the Attorney General's department. Senator Xenophon wraps up the long exchange, with "I will leave it there for now." Good on him.
Senator XENOPHON: And you are aware—again this is not a criticism of now Minister Albanese, although it is about when Mr Albanese was the shadow minister—of the allegations that Mr Kessing went to Mr Albanese's office and provided information to it in terms of the lack of action in relation to these reports and provided details of these reports. Wouldn't that indicate that there were other people that could have had access to this material?
Mr Negus: The AFP's position on this is that those reports in the Australian newspaper on, I think, 7 September 2009 were evaluated. The AFP had decided that an investigation into the disclosure of that report in that circumstance was not warranted because an investigation had already been completed. Mr Kessing was convicted of that and we considered it not in the public interest to reinvestigate any of those allegations.
Senator XENOPHON: Commissioner, my time is short, but why wouldn't you evaluate that? Mr Kessing said, 'I gave this information to Mr Albanese's office because of his role as the shadow minister at the time.' There is a chain of evidence there suggesting that others had access to this report, although there is an argument that he would have been protected under section 70 anyway by going to a member of parliament. Are you saying that the AFP did not bother to investigate that at all?
Mr Negus: I am talking about Mr Kessing's
Senator Ludwig: I just wanted to add there that in relation to the statements you are making about Mr Albanese—and I do not have it before me, so I am not going to say that what you are saying is incorrect—my recollection is that that was disputed by Mr Albanese. I cannot remember, I think he made a statement in parliament about it. I am not sure, so if that is incorrect I will stand.
Senator XENOPHON: I do not have the Hansard of what Minister Albanese said.
Senator Ludwig: I am not even sure whether he made a statement about it. I cannot recollect. There were a range of statements that were made at that time and in the various reports at the time, so the position that you are simply putting may be contested. I just wanted to make sure that by being silent I am not condoning the statements that you are making
Mr Negus: As far as we were concerned, we investigated the original allegation. The matters were heard by a properly formed court. There was an appeal and that appeal was—
Senator XENOPHON: That is not my question. As a result of Mr Kessing's allegations that were published in the Australian newspaper in September 2009, did the AFP follow that up?
Mr Negus: No, we did not.
Senator XENOPHON: Why not?
Mr Negus: An investigation had already been conducted and, as I said, this was a matter of whether or not to reinvestigate similar matters about Mr Kessing's disclosure of information to, allegedly, Mr Albanese's office.
Senator XENOPHON: But wouldn't that be relevant, the fact that—
Mr Negus: Senator, it is very difficult for the AFP to launch investigations at every media report. Regularly—
Mr Wilkins: These issues are being considered. As you know, he has applied to the minister—
Senator XENOPHON: But, Mr Wilkins, if the AFP has not even bothered to look at these issues where he has said that he actually discussed the report and the contents of the report with the shadow minister and his staff previously—
Mr Wilkins: I am not judging that, Senator, I am just saying—
Senator XENOPHON: If you are looking at it, wouldn't it be reasonable, in terms of any pardon application, for that to be considered and for that to be investigated?
Mr Wilkins: We are considering these questions as part of the pardon application.
Senator XENOPHON: But you are not investigating whether or not that occurred?
Mr Wilkins: No.
Senator XENOPHON: Why not? That means that you are not looking at the pardon application seriously, are you?
Mr Wilkins: The department does not investigate matters anyway.
Mr Negus: I take on board the point you have made and I realise that this is a very difficult process for Mr Kessing and that he has maintained his innocence throughout the process. But again, from the AFP's perspective, the matter was properly investigated. Mr Kessing was convicted in court. His appeal was dismissed and he discontinued any further legal action in that regard. From the AFP's perspective, in the public interest we are not going to go out and reinvestigate matters on the strength of media reports or allegations by members of the Defence, if they want to reprosecute a case, in the press.
Senator XENOPHON: But that is your definition of the public interest. That is a value judgment as to what the public interest is.
Mr Negus: That is right, and that is what we are paid for.
Senator XENOPHON: I respect that and I respect very much the work that the AFP does. But if significant allegations were made that would be relevant to any pardon application, that would be relevant as to the veracity of the conviction in the first place, then surely I would have thought that is something that the AFP may want to follow up. Are you ruling out investigating the allegations that surfaced in September 2009 at any stage in the future?
Mr Negus: In the absence of any further information or any further representations, the AFP will not be reopening this case.
Senator XENOPHON: It is not relevant that the allegation that he went to a shadow minister with this information—
Senator Ludwig: As I said before, you were making a range of statements and I do not have the information before me as to the veracity or not of those statements that you are making it in terms of Mr Albanese. I am not interrupting you, but I am simply putting it on the record that it may be a matter that I might want to take on notice to come back should Mr Albanese want to correct the record. As you said, you have made a range of statements. Clearly, I am not Mr Albanese and I am just simply trying to protect the position—
Senator XENOPHON: It is not a criticism. The fact is, this could have gone to the safety of the conviction.
Senator Ludwig: I do not know whether it was a fact or not and I do not know whether what you are alleging is in fact a matter—
Senator XENOPHON: If the AFP is not going to investigate it, we are not going to find out, are we?
Senator LUDWIG: All I am going to say is that in the terms of the statements you will make, I am not going to leave them unchallenged.
Mr Negus: Senator, I take on board all the points that you made but as far as we are concerned the conviction stands. Mr Kessing chose not to pursue the legal avenue of appeal.