RESP.7512.001.0001 2009 VICTORIAN BUSHFIRES ROYAL COMMISSION Letters Patent issued 16th February 2009 SUBMISSIONS ON BEHALF OF CHRISTINE NIXON Date of Document: 24th May 2010 Filed on behalf of: Christine Nixon Prepared by: Russell Kennedy Sol. code: 316 Solicitors Tel: (03) 9609 1555 Level 12, 469 La Trobe Street Fax: (03) 9609 1600 Melbourne, Vic., 3000 Ref: VAH 303878-00001 DX 494 Melbourne Contact: Victor Harcourt Email: [email protected] A. Introduction 1. These submissions are made on behalf of Christine Nixon in response to the submissions by Counsel Assisting the Royal Commission (the Commission) headed “Leadership, Emergency Management Co-ordination, Command and Control” dated 13th May 2010 (Submissions of Counsel Assisting). B. Application for leave to appear 2. Application is made for leave to appear for Ms Nixon. 3. Counsel Assisting have submitted that the Commission should find that Ms Nixon attempted to mislead the Commission in an aspect of her evidence of 6th April RESP.7512.001.0002 2010 concerning her activities after 18:00 hours.1 The potential impact of such an allegation on Ms Nixon’s reputation is grave. Leave to appear should be granted to make submissions on this issue. 4. Counsel Assisting have also submitted that the Commission should find that Ms Nixon failed to discharge her responsibilities as State Co-ordinator of DISPLAN on 7th February 2009 in several respects.2 Again, the potential impact of such allegations on Ms Nixon is significant. Leave to appear to make submissions on these issues should also be granted. (As will be seen below, the submissions of counsel for the State of Victoria are adopted on these issues.) 5. It is submitted that the grant of leave to appear should extend to allowing counsel to supplement these submissions with oral argument. C. Allegation of attempted misleading should not be entertained or accepted (1) Introduction 6. Ms Nixon rejects the allegation that she attempted to mislead the Commission. In this branch of the submission, we shall advance first reasons why the allegation should not be entertained by the Commission at all and then reasons why the allegation should be rejected in any event. (2) The allegation should not be entertained by the Commission 7. The Commission should not entertain the allegation that Ms Nixon attempted to mislead the Commission. There are at least four reasons. 1 Submissions of Counsel Assisting at [15.6]. 2 Submissions of Counsel Assisting at [15.7]. 2 RESP.7512.001.0003 8. First, the Commission’s terms of reference concern matters such as the causes and circumstances of the 2009 bushfires, the responses of various authorities to those fires and the responses by such authorities in the future. Those terms of reference do not extend to the question whether any witness attempted to mislead the Commission. 9. Secondly, whilst a Commission is entitled to accept or reject the whole or part of a witness’s evidence for the purposes of making findings about issues within the purview of its terms of reference, it is entirely another thing to go on and find that a witness has attempted to mislead the Commission. Such a finding is tantamount to a finding that the witness has committed a criminal offence.3 And all this despite the presumption of innocence, on the civil standard of proof4 and without an adequate opportunity to meet such an allegation. Even royal commissions or inquiries which, expressly by their terms of reference, are specifically designed to inquire into whether individuals might have breached the criminal law (such as was the case at the “AWB Inquiry”5) do not involve findings that the criminal law was breached by a person or witness. Rather, they simply involve findings as to whether there might have been a breach of the law and, if that possibility is found to exist, recommendations for further investigation by the proper authorities. Yet, here, without any authority to do so, Counsel Assisting leap those hurdles, cast themselves as a prosecuting authority and invite the Commission to cast itself as a tribunal of fact and law on a matter it was never set up to determine. 10. Thirdly, in view of the nature of the allegation and the absence of evidence supporting it (a matter dealt with below), the allegation should never have been 3 See, e.g., ss 18 and 141 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) and s 314 of the Crimes Act 1958 (Vic). 4 Albeit that the level of satisfaction required would be affected by the principles laid down by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. See below. 3 RESP.7512.001.0004 made.6 The Commission should not compound the error by entertaining a submission that should never have been made. 11. Fourthly, to submit that there should be a finding that Ms Nixon attempted to mislead the Commission is to invite a finding which is unnecessary to the Commission’s task. The Commission’s task is to make findings and recommendations pursuant to its terms of reference. There is no factual contest about what Ms Nixon did or did not do after 18:00 hours on 7th February 2009. Accordingly, it is wholly unnecessary to the performance of the Commission’s task to determine the allegation that Ms Nixon attempted to mislead the Commission. And, to emphasise even further the previous point, if such a finding is unnecessary to the Commission’s task, Counsel Assisting ought not to have made a submission inviting such a finding. (3) The allegation should be rejected (a) The allegation is denied, is offensive, is baseless and should be rejected 12. Ms Nixon has already denied, on oath, any intention to mislead the Commission.7 The allegation is as offensive as it is baseless. It should be rejected. (b) What Ms Nixon said in her statement and in evidence on 6th April 2010 13. In her statement, Ms Nixon said that she left the IECC at approximately 6.00 p.m. and went home.8 She went on to say, “On my return home I continued to monitor the situation, maintaining phone and email contact. I also continued reviewing the 5 The “AWB Inquiry” is one of informal descriptions of the Inquiry into certain Australian companies in relation to the UN Oil-for-Food Programme conducted by the Honourable Terrence Cole AO RFD QC. See that inquiry’s website at http://www.oilforfoodinquiry.gov.au. 6 See, e.g., Rees v Bailey Aluminium Products Pty Ltd & Anor (2008) 21 VR 478 at [32]. 7 T 17680, 17701 & 17708. 8 Statement of Ms Nixon (which forms part of Exhibit 836 – WIT.3010.009.0377) at [44]. 4 RESP.7512.001.0005 BOM/CFA/DSE websites, TV and radio coverage”.9 In that statement there was no mention of dinner or a meal after she arrived home. 14. In her evidence on 6th April 2010, when asked whether she “devoted the whole evening” to monitoring the situation, she referred to having a meal in these terms: “No, I had a meal and then I went backwards and forwards”.10 There was no reference as to whether the meal was at home or elsewhere. (c) The allegations made by Counsel Assisting during cross-examination 15. During cross-examination on 14th April 2010, Counsel Assisting put to Ms Nixon on five occasions that she had deliberately withheld the fact that she had a meal at the hotel from the Commission in her statement and in her evidence on 6th April 2010.11 16. The basis of the allegation of deliberately withholding made by Counsel Assisting varied in her questioning. It was put variously that Ms Nixon did not reveal the fact because: she did not want to reveal she had left home;12 it would have shown that she could not have monitored the situation as suggested in her statement;13 it would have been “productive of embarrassment”;14 it would have added to her embarrassment about being absent from the IECC.15 9 Statement of Ms Nixon at [46]. 10 T 17356. 11 T 17680, 17681, 17682, 17684 & 17708. 12 T 17680. 13 T 17681. 14 T 17682.13. 15 T 17684.7. 5 RESP.7512.001.0006 17. It was also suggested to Ms Nixon that her phone was turned off during the period she was having a meal or during the period between 6:00 p.m. and 9:00 p.m.16 Ms Nixon described that suggestion as “a disgrace” and as an “abhorrent” idea.17 (d) The specific allegation made in the submissions of Counsel Assisting 18. The specific finding invited by Counsel Assisting in their submissions is that “Ms Nixon attempted to mislead when she gave evidence on 6th April 2010 concerning her activities after 18:00 on 7th February 2009 by concealing the fact that her ability to monitor events at a critical time on the day had been compromised”.18 19. Counsel Assisting in their submissions set out passages from Ms Nixon’s written statement and her evidence of 6th April 2010, compare them with aspects of her evidence of 14th April 2010 and then submit that her evidence on the first occasion was “incorrect and calculated to mislead”, that she “attempted to conceal the fact that her capacity to monitor events had been compromised during the period she was absent from home” and that her denial of an intention to mislead should be rejected.19 Counsel Assisting argue that the omission was calculated to leave the impression that she had “continuously” monitored the fires via the media of phone, radio, internet and television.20 20.