(Readers will recall that others such as Allan Kessing, an outstanding public interested former public servant did not attract the exercise of this discretion not to prosecute. Nothing has been heard for years about his application for a pardon, under consideration since October 2009, and presumably still somewhere in the in-tray of Attorney General Roxon.)
I'm no fan of s 70 of the Commonwealth Crimes Act (neither is the Australian Law Reform Commission which recommended repeal in the current form in 2009) but on any scale of seriousness the Grech creation of false email, subsequent false testimony to a parliamentary committee, and disclosures to the opposition-without a shred of public interest- was way up there.
The DPP in 2010 said:
including his state of health. For a prosecution to succeed all elements of any offence or
offences under consideration must be capable of proof beyond reasonable doubt by
admissible evidence. The Prosecution Policy of the Commonwealth requires that the
evidence establish a prima facie case with reasonable prospects of conviction for a
prosecution to be commenced. Where there are reasonable prospects of conviction, the
Policy then requires consideration of public interest factors to determine whether the public
interest requires a prosecution.
In coming to my own conclusions in this matter I have also had the benefit of advice from
senior counsel from the private bar and from lawyers within my Office. This advice has
addressed legal issues relating to criminal law, law relating to the Parliament and complex
I am satisfied that there are some alleged disclosures which meet the evidentiary
requirements of the Prosecution Policy of the Commonwealth. These have been considered
along with public interest factors including significant medical material relating to Mr Grech’s
physical and mental health, both at the time of the alleged conduct and subsequently. The
impact that this matter has already had on Mr Grech in terms of his health, employment and
prospects has also been taken into account. I am not satisfied that there are reasonable
prospects of proving criminality in relation to the other alleged conduct to the standard
required by the criminal law.
In all the circumstances I have decided that the prosecution of Mr Grech is not warranted
under the Prosecution Policy of the Commonwealth. I have advised the Australian Federal