Search
This area does not yet contain any content.
Justinian News

The law and its miracles ... Party allies selected for judicial elevation in Qld ... Justice Jenni Hill's brother ... More entries for the Golden Tortoise award ... Federal Court muddles the maths, again ... Theodora reports ... Read more >>

Politics Media Law Society


Rupert World ... Lord Moloch’s pal Doug the Diva – driving Washington spare … News UK’s model for unionism … What next for the Washington Post? … Concealed coal lobbyists running an anti-Teal campaign … More corruption busting for Stinging Nettle … The litigation industry spawned by Lehrmann ... Read on >> 

Free Newsletter
Justinian Columnists

Party time for Dicey ... Heydon's book - a pathway to rehabilitation ... The predatory man and the clever intellect - all wrapped up in the one person ... Academic tome and cancel agenda ... Despite the plaudits the record of abuse doesn't vanish ... Book launch with young associates at a safe distance ... Procrustes thinks out loud ... Read more >> 

Blow the whistle

 

News snips ...


The Lubyanka ... Bullying investigation into former Federal Court judge goes nowhere ... "Complaint unsubstantiated" ... Phew! ... Recommendations about staff education ... Nothing recommended for judicial induction ... More >> 

 

Justinian's Bloggers

Governance turmoil at Tiny Town Law Society ... Night of the long knives ... Lakeside in Canberra ... ACT Law Society upheaval over governance changes ... Bodies carted out of the council room ... Blood on the carpet ... Fraught litigation another distraction ... From Gang Gang ... Read more >> 

"We're in unchartered territory here. A Pope hasn't died before during an Australian election campaign."  

Jane Norman, National Affairs Correspondent, ABC News ... April 21, 2025 ... Read more flatulence ... 


Justinian Featurettes

Letter from Rome ... Judges on strike ... Too much "reform" ... Berlusconi legacy ... Referendum on the way ... Constitutional court inflames the Meloni regime with decision on boat people ... Insults galore ... Silvana Olivetti reports ... Read more >> 


Justinian's archive

Tea is for Tippy ... Life of a tiffstaff ... Bright, ambitious and, when it comes to the crucial things, hopeless ... Milking the glory of the gig ...  Introducing Tippy, our new blogger filing from within the concrete cage at Queens Square ... From Justinian's Archive, March 15, 2010 ...  Read more >> 


 

 

« High rise dog fight | Main | Sex, drugs and death »
Wednesday
Jun062007

McHugh enteres the Patrick Power affair 

Michael McHugh QC gave an opinion on the DPP's handling of the Patrick Power affair ... Power should not have been told about the discovery of child porn on his computer before the police were informed ... DPP Cowdery said the opinion was a "counsel of perfection" ... From Justinian's archive June 2007 

Patrick Power: McHugh thought DPP potentially could have prejudiced the case

MICHAEL McHugh's advice to the NSW government about the way the NSW DPP and his deputy handled the Patrick Power affair injected a momentary thrill into something that basically had gone nigh-nighs.

The Labor government is on a mission to skewer the DPP, Nicholas Cowdery, and his former deputy, who is now the Liberal member for Epping and shadow attorney general, Greg Smith.

The issue to be endlessly teased and tortured is that following the discovery by a DPP technician of child pornography on Power's computer, Smith, with Cowdery's approval, advised the then deputy senior crown prosecutor that there was evidence he had breached the Crimes Act.

It was only after Power had stood down voluntary from his job as the seventh most senior prosecutor in the state that Smith rang the police.

It was not until about 48-hours later that Power was arrested and taken to Surry Hills police station.

The government has had a field day, alleging that Power had been tipped off by a mate.

On May 10, shadow attorney general Smith made a personal explanation to parliament defending his actions.

He said that when he was told what was on the computer he wanted to clarify with Power whether the material formed part of a case he was prosecuting, and if not to get him to stand down because within days he was to conduct a number of important criminal appeals.

On May 29 the government passed a motion censuring Smith over his handling of the Power affair, accusing him of misleading the parliament in his personal explanation.

The government must have felt that it could take the issue further because the next day (May 30) NSW AG John Hatzistergos asked McHugh for advice on the question:

"If the Director of Public Prosecutions learns that a person employed in his office possesses child pornography, should the director first inform and seek the advice of police officers before informing the person that the pornography has been found."

The government got the advice it was looking for. "Yes," said the former High Court judge.

"Once a matter has arisen that requires police investigation, the public interest requires that the director take no steps that might prejudice the investigation. Informing the employee of the finding of the pornographic material has the inherent potential to prejudice the investigation in a number of ways." 

In other words, as soon as the director and deputy director took the view that this was a police matter, then Power should not have been told about the discovery on his computer.

"With great respect to the opinion of the director - which of course must be given great weight - I find it difficult to see why it was necessary to remove Dr Power 'before any police investigation was likely to be conducted'." 

Here is the full version of McHugh's advice.

Cowdery was not impressed:

"Needless to say, I accept the wisdom of Mr McHugh's advice; but without being critical of it or of the author I assert that it is a counsel of perfection, given with the benefit of hindsight 11 months after the event ... Where matters of judgment are for evaluation, hindsight can be a distorting factor."

Cowdery said that for his own part, he had not concluded at that stage that the matter was inevitably one for police investigation.

To the extent that McHugh's conclusion was based on a belief that both he and Smith had decided that the police would need to investigate, then the advice "proceeds on an erroneous basis".

However, in the light of McHugh's examination Cowdery accepted that with the benefit of hindsight his judgment at the time may not have been the best that might reasonably have been formed.

But that doesn’t mean that the judgment he did form was wrong.

Here is Cowdery’s response in full.

Attorney General Hatzistergos told parliament last Thursday (June 21) that even though the circumstances that arose in the DPP's office on July 4, 2006 were difficult and confronting, "the judgment needed to handle them however was not, in my view, arduous". 

Reader Comments

There are no comments for this journal entry. To create a new comment, use the form below.
Editor Permission Required
You must have editing permission for this entry in order to post comments.