South Australia … Alleged abuse of public office … Investigation of public servant’s junkets … Breach of German sovereignty … Blunders by ICAC …Prosecution collapses, twice … Great moments in the law … Max Shanahan reports 

The brutal dismemberment – in a grand South Australian tradition – came on the back of the controversial and, in the words of Judge Tim Heffernan, “unorthodox” prosecution of John Hanlon, the one-time chief executive of the state’s property developer Renewal SA. 

Hanlon was pursued by the state’s ICAC after it came to light that a business trip to Berlin happened to coincide with the birth of his grandchild in the same city. 

It was alleged that Hanlon used public funds to undertake what was, in effect, a personal trip. After raids of his home and office, and the seizure of his and his family’s electronic devices, Hanlon was arrested and charged with 13 counts relating to various public integrity offences.

Adding to the “somewhat complicated background” of the case were allusions towards improper involvement in the case from former Liberal attorney general, the blunder-prone Vickie Chapman, who has had her own integrity troubles. 

The complaint against Mr Hanlon originally concerned a trip he made to the Melbourne Cup in 2017. 

Only later did further allegations arise around a Berlin trip in September 2017. In 2018, as AG, Chapman “passed on some limited information provided to her” regarding the Melbourne trip to the Office of Public Integrity. 

That, and another complaint made by an employee of Renewal SA, prompted the commencement of an ICAC investigation. 

Hanlon was ultimately charged with 13 offences relating to the Melbourne and Berlin trips. However, the case spectacularly collapsed at a committal hearing in June 2021. 

Stephen Mullighan, the Minister for Housing and Urban Development in the Labor Weatherill government that appointed Hanlon, gave evidence in his favour, saying that itineraries – a key issue in the case – could be subject to change and amended without approval. 

Hanlon’s travel, he said, was validly approved. Following this evidence, Hanlon’s counsel made a submission of no case to answer, based on the interpretation that it was essential for the prosecution to prove that “no work of any description” had been done on either of the trips. 

Unable to foresee the very large bus that was approaching, Peter Longson conceded that the prosecution could not prove to that standard and, without taking instructions on the matter, readily accepted that there was no case to answer. 

Thus, Hanlon was absolved of the allegations and set free to enjoy Adelaide’s delights. 

Less than a week after the case fell over in the Magistrates Court, Chapman was asked about it in parliament. The attorney general said that she had been informed the DPP was reviewing the outcome, “including as to what other action is taken in relation to it”. 

Pressed as to whether she had made any direction of request of the DPP, Chapman continued: 

“I have made an enquiry … in relation to getting a briefing from the DPP as to what action he is proposing in relation to this matter … that fact that a matter may have concluded in the Magistrates Court doesn’t prohibit the DPP, independent as the DPP is, from taking some other action in another court.”

A fortnight after Chapman’s comments, Hanlon’s solicitor was made aware that the DPP was considering ex officio charges. In September, three ex officio charges were laid in relation to the Berlin trip. 

In contesting the charges before trial, Hanlon’s counsel sought to argue that Chapman “improperly influenced the DPP to file the ex officio Information” to avoid political embarrassment over the awarding of costs, and the DPP was “cowed into submission by representations made by her or on her behalf.” 

The defence sought access to communications between the AG and the DPP, but, in dismissing the claim, Heffernan accepted that, despite the “unorthodox” progression of the case, Chapman did not act improperly. 

A second pre-trial application, for a permanent stay based on the charges being an abuse of process, also failed. The defence submitted that, as no additional evidence had been presented with the charges, they would fail just as they did in the Magistrates Court. 

This required the DPP to disavow Longson’s prior concession, throwing him under the O-Bahn busway as they dryly submitted that they had “corrected the previous erroneous position” and that “the concession made by the prosecutor at committal that the prosecution was required to prove the defendant undertook no work … was wrong as a matter of law”. 

Instead, they submitted – and Heffernan agreed – they only had to show the Berlin trip had “an overwhelming personal flavour”. 

Pre-trial applications dismissed and an embarrassing about-turn endured, the DPP should have been ready for the big trial. Until, that is, things came to a screeching halt. 

The DPP sheepishly was forced to ask the District Court for an adjournment. 

“The learned prosecutor frankly conceded that an important matter concerning  the preparation of the trial had been overlooked.”

The DPP’s case relied on six German witnesses. The prosecutors had failed to make the required arrangements to allow the foreign witnesses to give evidence. 

To secure the participation of German witnesses, and foreign witnesses generally, a Mutual Assistance Request (MAR) must be filed through the Commonwealth AG’s office with the relevant foreign authorities. 

No steps had been made by the SA DPP to do so. Indeed, the whole time, SA prosecutors and investigators had been in contact with the six witnesses without making the Germans aware. As Heffernan said:

“Germany regards an approach by a foreign entity to witnesses living within its borders as a breach of its sovereignty.”

It gets worse. Two ICAC investigators travelled to Germany in 2019 to interview witnesses, without informing the German authorities or, indeed, the Australian consul general. 

When the ICAC officers lobbed up at the consulate looking for Our Man in Frankfurt to witness the swearing of affidavits, he refused to do so and informed the bumbling South Australians of the need for an MAR. 

This wasn’t the only notice the DPP received. In May 2021, the Commonwealth’s AG’s office wrote to the SA DPP in the plainest possible terms:

“MAR required in all circumstances. No contact should be made with a witness or prior to a MAR being made.”

Not even old-fashioned South Australian provincialism could excuse the DPP. In September 2021, after the ex officio charges were laid, the very same issue caused the derailment of a trial in the SA District Court, “causing the importance of MARs to be brought to the attention of all staff”.

Sigh. With an MAR application likely to take at least nine months, Heffernan refused to grant the adjournment and, with the German evidence unable to be admitted, the DPP’s case collapsed, again. 

Heffernan took some time to give the DPP and ICAC a lashing for their infantile errors. 

“[The failure] is a systemic failure, responsibility for which is shared by each of the numerous officers of the DPP … [it] cannot be conveniently sheeted home to the prosecutor’s oversight. 

“The failure of ICAC to have obtained permission … to conduct their enquiries in Germany falls well short of what should be expected from an investigative agency of ICAC’s powers and responsibilities. 

“It seems inevitable that the German authorities will at some point become aware of the fact that a significant investigation has taken place within its borders in what it regards as a breach of sovereignty.”

Alas, with covert Berlin trips, political intrigue and corruption suspicions, Adelaide finally had a chance to shed its regional status. 

But with befuddlement when confronted with international law and dim-witted breaches of sovereignty, perhaps it’s for the best they haven’t. 

R v Hanlon [2022] SADC 85
R v Hanlon [2022] SADC 128
R v Hanlon [2022] SADC 135