Labor leader Peter Malinauskas secretly recorded alleged blackmailers Annabel Digance and husband, defence papers claim
An ex-MP and her husband accused of blackmailing Labor leader Peter Malinauskas claim he made secret recordings to “entrap” them and stop a bullying and racism inquiry.
Police & Courts
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State Opposition leader Peter Malinauskas “got wired up” and went to “extraordinary lengths” when he “deceitfully sought to entrap” a former politician and silence a bullying and racism inquiry, court documents allege.
On Monday, the Adelaide Magistrates Court released defence documents filed by former Labor MP Annabel Digance, who is charged with blackmailing Mr Malinauskas.
Mrs Digance has argued she has no case to answer and her prosecution is an abuse of process, and wants court orders requiring three witnesses to give evidence.
Her defence documents assert the Labor leader was “devious”, “deceitful” and “lied” to Mrs Digance and her husband, Greg, during “negotiations” about her potential return to politics.
Mr Malinauskas, they assert, made “clandestine” recordings of private discussions at a top North Tce restaurant, across the street from Parliament House, and within the Labor Party’s inner sanctum.
His goal, they assert, was to “entrap” the Digances, “unlawfully” provide recordings to SA Police and “shut down a legitimate parliamentary inquiry” into bullying and racism allegations within the party.
Those allegations arose from the publication of a 2014 flyer, advocating against Carolyn Habib – who was then Mrs Digance’s opponent for the seat of Elder.
In documents supporting her applications, Mrs Digance’s legal team assert their client played no role in authorising nor publishing the “disgraceful” flyer that had “unavoidable racist overtones”.
They assert their client wanted the flyer’s origins investigated as part of the bullying inquiry – prompting Mr Malinauskas to give police “the go ahead” to arrest the couple.
Prior to the Digances’ arrest, they assert, police advised Mr Malinauskas on how he should “present himself as a victim” while “deliberately” portraying their client as guilty.
“The case (was) instigated by a high-profile public political figure with a clear political motive against another public political figure in the same political party who exercised her right to free speech to tell the truth as she knew it,” they assert.
THE CASE SO FAR
Ms Digance, 63, and her husband, 60, were arrested one month after she publicly claimed power was being misused within the Labor Party.
Subsequently, Attorney-General Vickie Chapman successfully moved for a Select Committee to investigate those claims.
Police allege the Digances made baseless threats and false accusations about Mr Malinauskas to politically wound him and secure Mrs Digance’s return to politics.
The couple, however, claim the case is a “malicious prosecution”, and that Mr Malinauskas and others should have to give evidence prior to trial.
The documents released on Monday were authored by Mrs Digance’s legal team – barrister Robert Cameron and solicitor Dr Angela Pierce.
The first document asks the court to find the couple has no case to answer and argues the case should be permanently stayed as an abuse of process.
The second asks the court to order three people be called to give evidence before their clients enter any pleas.
Those sought for cross-examination are Mr Malinauskas, ALP State Secretary Reggie Martin and Detective Sergeant Justin Ganley, from SA Police’s Major Crime Investigation Branch.
ASSERTIONS AGAINST MR MALINAUSKAS
Counsel asserts the Digances’ prosecution is “based on unlawfully obtained evidence” in which Mr Malinauskas “deceitfully sought to entrap” the couple “in the commission of an offence”.
The flaws in the case, they assert, begin on February 13, 2020, when Mr Malinauskas met with Mr Digance at Parlamento restaurant on North Tce.
They assert the men met “in a discrete enclave set off from the main dining area”, and that Mrs Digance was not present.
“In a private conversation, Mr Malinauskas deviously sought to entrap Mr Digance,” they assert.
“Mr Malinauskas deceitfully recorded that private conversation without Mr Digance’s consent or knowledge.”
Counsel asserts Mr Malinauskas “lied” to Mr Digance about recording the conversation after he “pointed out” it would be illegal to make any recording.
That means the recording should, they assert, be inadmissable as it breaches state law.
“Mrs Digance respectfully contends that Mr Malinauskas unlawfully provided his clandestine recording of that altogether private conversation with her husband to SA Police,” they assert in the documents.
Counsel asserts Mrs Digance, her husband and Mr Malinauskas then met at the party’s state headquarters on Gilles St on March 27, 2020.
Mr Malinauskas, they assert, “deceitfully sought to attempt to entrap” the couple “into incriminating themselves during that private conversation”.
He “had been wired up” for that meeting, they assert, but “was unsuccessful in his devious attempt” to entrap the Digances.
“Mr Malinauskas went to extraordinary yet entirely unsuccessful lengths to attempt to entrap the Digances into the commission of an alleged offence,” they assert.
“In any event, his attempted entrapment should lead the court to stay the proceedings as an abuse of process.
“To allow courts to be used to pursue this prosecution founded on Mr Malinauskas’ attempted entrapment would bring the administration of justice into disrepute.”
Counsel asserts Mr Malinauskas did not make any allegations until “a year” after the couple’s alleged actions.
They assert his doing so “had the obvious and all too evident improper and predominant purpose of stymieing” the parliamentary inquiry.
“The fact that Mrs Digance exercised her right of free speech to tell what she knew about ALP conduct as she knew it to be, did not amount to unlawful conduct on her part,” they assert.
“Mrs Digance had every right to tell the world what she knows.”
Counsel asserts that, nine days after Ms Chapman successfully moved for the inquiry, Mr Malinauskas “stated that he was to consult” Mr Reggie Martin.
They assert Mr Malinauskas said he would also consult with “the person whose conduct was to be inquired into” by parliament “and presumably did so”.
Five days later, they assert, Mr Malinauskas “gave the go-ahead for the arrest”, leading to her home being “raided” by “13 police”.
“The quashing of a parliamentary inquiry into bullying and intimidation within the Labor Party was clearly important to Mr Malinauskas and his senior party officials, and especially so Mr Reggie Martin, who holds the No. 1 ALP ticket for the Legislative Council in the year leading up to an election,” they assert.
Mr Malinauskas, they assert, should be cross-examined because he had “on several occasions” told police he did not wish to prosecute the allegations.
“Mrs Digance seeks to elicit evidence in cross-examination of Mr Malinauskas to show that the prosecution was instigated by Mr Malinauskas on 9 April 2021 for an ulterior political purpose and out of malice towards Mrs Digance,” they assert.
ASSERTIONS ABOUT THE HABIB FLYER
Counsel asserts the prosecution is also driven by the 2014 “Habib flyer”.
That flyer, they assert, attracted “enormous national public interest” – but they further assert it had nothing to do with their client.
“Mrs Digance had no involvement in the conception, creation, approval or distribution of the Habib flyer,” they assert.
It was, they assert, “authorised” by Mr Martin and distributed “in an attempt to discredit” Ms Habib, who was Mrs Digance’s political opponent.
“Ms Habib understandably took great offence at the flyer … the symbolism in the flyer is striking and its racist overtones unavoidable,” they assert.
“Mr Martin authorised the publication of a disgraceful flyer that was the subject of a legitimate parliamentary inquiry which Mr Malinauskas sought to shut down in consequence of these proceedings.”
They ask Mr Martin be cross-examined about his discussions with Mr Malinauskas over the flyer and Mrs Digance’s bullying allegations.
They say they also want to examine him about discussions with Mr Malinauskas concerning “the prosecution as a means of shutting down” the inquiry.
ASSERTIONS ABOUT SA POLICE
In the documents, Mr Cameron and Dr Pierce say the case against their client is an abuse of the legal process for another reason – the conduct of police.
They assert officers “liaised with” Mr Malinauskas before the Digances were arrested “in anticipation of mass media interest”.
They assert police made the decision “to arrest rather than summons” the couple.
“It appears from Detective Sergeant Ganley’s notes that he took on the role of media consultant in giving Mr Malinauskas advice as to how he should present himself to the media ‘as a victim’,” they assert.
Counsel also make assertions as to the lawfulness of the couple’s arrest, question the use of warrants and complain their client’s seized personal property has yet to be returned.
“In advance of their delivery to the City Watch House and then court, police alerted the media to the arrest and anticipated delivery of Mr and Mrs Digance under their custody to the city watch house,” they assert.
That, they assert, allowed the media to “swarm” the Watch House as their client and her husband were transported in separate vehicles.
Mrs Digance, was, they assert, “told to duck” by a detective and did so – leading to photos and video being taken “with all the pejorative implications suggestive of consciousness of guilt” on her part.
“Mrs Digance respectfully submits that she was thus deliberately placed in this situation by the police so that she would be portrayed in the public mind as a person guilty of a serious criminal offence and thus depriving her of the right to be accorded due process and an unprejudiced hearing,” they assert.
“Mrs Digance contends that the process undertaken by the police, as described above, reflects an attempt by experienced detectives used to dealing with career criminals to portray Mrs Digance as guilty of an alleged criminal offence.”
Detective Sergeant Ganley should have to submit to cross-examination, they assert, to show police had “no reasonable course” to pursue the allegations.
They assert he can also give evidence to show Mr Malinauskas “was minded not to prosecute” anything before the state election until “the advent of media interest” in the inquiry.
“The conduct of the police in portraying Mrs Digance as guilty and concomitantly Mr Malinauskas as the ‘victim’ strikes at the heart of the criminal process,” they assert.
“There is no case to answer. The prosecution should be dismissed and permanently stayed as an abuse of process.”
“NO CASE TO ANSWER”
Mr Cameron and Dr Pierce concede that “no one could possibly deny” that “a favourable preselection as an ALP candidate” amounts to “a political advantage”.
However they assert that, in 2002, the offence of blackmail was amended by a Bill – and that former attorney-general Michael Atkinson gave its second reading speech.
““This amendment deals with the definition of ‘threat’ and should be of interest to all people involved in the political process,” he said in that speech, which is quoted in the document,” they assert.
“We have limited the scope of blackmail so that it does not include threats made in the course of negotiations to secure a political advantage.”
Counsel asserts that, as a result of the amendment, “any non-violent threats made” in the course of “negotiations to secure a political advantage” cannot be considered blackmail.
“The depositions show that the discussions between the Digances and Mr Malinauskas did not involve any threat of violence,” they assert.
“If construed as threats, which is emphatically denied, then those threats were made in the course of, or incidentally to, negotiations to secure a political advantage for Mrs Digance.”
Counsel further asserts the prosecution’s evidence “is quite incapable” of supporting a conviction, due in part to the alleged actions of Mr Malinauskas.
Mrs Digance’s applications will be heard by the court next Thursday.
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