Colleen Gwynne seeking compensation over ‘misconceived’ Supreme Court prosecution attempt

Children’s Commissioner Colleen Gwynne is seeking ‘recompense’ after attempts to prosecute her for abuse of office were derailed in the NT Supreme Court last month.

Northern Territory Children’s Commissioner Colleen Gwynne is seeking compensation over the “misconceived” attempt to prosecute her for abuse of office that included police bugging her office and phone and accessing her bank records.

Ms Gwynne faced a three-year police investigation and criminal trial over allegations she sought to appoint her friend Laura Dewson as the assistant children’s commissioner.

The case ended abruptly in the NT Supreme Court last month when the prosecution determined to call no evidence and the jury was asked to return a not-guilty verdict after Justice John Burns ruled the Crown could not prove Ms Gwynne’s conduct was criminal, rather than poor practice.

In a letter sent to Chief Minister Natasha Fyles, Ms Gwynne’s lawyer Sean Bowden says the Children’s Commissioner is seeking “proper restitution and recompense for the pre-emptory and misconceived administrative and criminal processes to which she was subjected which has impacted on every aspect of her life”.

“The administrative action taken at various levels of government, the way in which decisions were made adverse to her interests and the manner of the Office of the Commissioner for Public Employment and police investigation (including the bugging of her office and phones) have had a significant permanent effect on her,” the letter, dated April 13, says.

“She seeks to be restored as far as possible to the state of affairs she enjoyed prior to being charged.”

NT Children’s Commissioner Colleen Gwynne.

Ms Gwynne sought to appoint Ms Dewson as acting commissioner after an independent panel found she was one of two suitable applicants. An interstate applicant, Claire Febey, was preferred by the panel.

But after seeking advice from Department of Attorney-General and Justice HR director Brian Mappas – who consulted Solicitor General Simon Weise – Ms Gwynne sought to appoint Ms Dewson.

A Department of Attorney-General and Justice spokesman confirmed “advice was sought from the Solicitor for the Northern Territory, however we are unable to comment on the matter as this information is confidential and subject to privilege”.

The police investigation was sparked when Nicole Hucks – who had been found unsuitable for the position by the independent panel – phoned an employee at the OCPE who had previously worked at the Office of the Children’s Commissioner on November 21, 2018.

Ms Gwynne has been on paid leave since she was charged on July 16, 2020.

Ms Hucks has since been appointed Acting Children’s Commissioner.

“Ms Hucks complained that she didn’t get the job,” Mr Bowden writes.

“This phone call, which was not officially a grievance due to Ms Hucks’ unsuitability for the position, triggered a sequence of events of events that include a misconceived police investigation and a subsequent criminal prosecution which was fatally flawed from the outset.”

Supreme Court in Darwin generic, generics, Northern Territory, NT, NT News. Picture: Jason Walls

Mr Bowden’s letter details how the complaint was referred from the OCPE, to the Public Interest Disclosure Commissioner, then on to police over just eight days.

At no stage during this period was Ms Gwynne offered an opportunity to respond to the complaint.

The Police Special References Unit began their investigation into Ms Gwynne on November 29, 2018, a day before the Northern Territory’s newly established Independent Commission Against Corruption began operating.

Mr Bowden writes “the immediate referral to the Police Commissioner avoided the impending institution of the ICAC. Had the matter been referred to ICAC a thorough statutory process of investigation would have been triggered and Ms Gwynne would have been afforded an opportunity to put forward her position.”

“On November 30 the PID (Public Interest Disclosure Commissioner) ceased to exist and ICAC took over its functions.”

Mr Bowden says there is a “serious question” regarding the police use of surveillance devices optical warrants to bug the office and telephone of Ms Gwynne, a former police officer who was once the Commander of Ethical and Professional Standards.

During opening submissions at Ms Gwynne’s Supreme Court trail the jury was told Ms Gwynne had made a racial slur against Ms Hucks, calling her a “fat g*n” during a conversations with Ms Dewson, after learning Ms Hucks had made the complaint.

No further evidence was heard and prosecutors withdrew their case five days later following Justice Burns’ ruling.

“The subsequent revelations of surveillance and intercept material in evidence has itself caused tremendous emotional and psychological trauma to our client, knowing that every private conversation entered into – whether for business or private purposes – was actively monitored by the police, even though a senior officer in the Special References Unit had advised on 16 January 2019 that if Brian Mappas had conveyed the SFNT legal advice to Commissioner Gwynne as to her legal powers as delegate in the appointment process then the ‘whole job is gone’,” Mr Bowden’s letter says.

Nicole Hucks remains the Acting Children's Commissioner in the NT. Picture: (A)manda Parkinson

Police have denied the senior officer made the comment.

“The investigation proceeded as per NTPF investigative procedures,” a police spokeswoman said.

“Prior to the service of the Notice to Appear the matter was reviewed by the Director of Public Prosecutions, there was sufficient evidence available to support the charge and this matter proceeded.”

Police also defended the decision to bug Ms Gwynne’s phone and office and access her bank records.

“NT Police investigators utilise contemporary investigative techniques when investigating serious criminal matters,” the spokeswoman said.

“The use of electronic surveillance and telecommunications interception is regulated by strict laws, requires an application to a judge and has stringent oversight by the Ombudsman.

“Likewise any access to other private records such as bank records requires judicial approval.

Ms Gwynne wants an independent conciliator appointed, paid by the Northern Territory government, to resolve her dispute.

“The prosecution ought never to have started. The ultimate capitulation came after nearly three years of grief to Ms Gwynne,” Mr Bowden’s letter says.

Ms Fyles confirmed the government had received Mr Bowden’s letter.

“Ms Gwynne is on a leave of absence to consider her next steps. During this time, Ms Nicole Hucks will continue as the Acting Children’s Commissioner,” she said.

Matt Cunningham is the Sky News Northern Australia Correspondent

Originally published as Colleen Gwynne seeking compensation over ‘misconceived’ Supreme Court prosecution attempt