Emails show Moriarty ‘misled the public’, ICAC lawyers tell court

Damien Moriarty was ‘intimately involved’ in email correspondence and board meetings discussing Darwin Turf Club chairman Brett Dixon’s involvement in a contract to build a controversial grandstand, a court has heard.

DAMIEN Moriarty was “intimately involved” in email correspondence and board meetings discussing Darwin Turf Club chairman Brett Dixon’s involvement in a contract to build a controversial grandstand, a court has heard.

Mr Moriarty is suing former Independent Commissioner Against Corruption, Ken Fleming QC, in the Supreme Court, seeking to overturn a finding that he made false public statements about Mr Dixon’s involvement in the project.

On Friday, Crown counsel Lachlan Peattie, told the court email records showed Mr Moriarty had misled the public when he told journalists Mr Dixon “was at arms length from this process at all times” in September 2019.

“The importance of going to the July board meetings is, your honour will appreciate that occurred only a month before Mr Moriarty gave his statements and he was intimately involved in both the email correspondence and the meeting itself,” he said.

“It’s hardly surprising that the ICAC would not accept that Mr Moriarty could honestly go to the press one month later and say that Mr Dixon had been at arms length from the process a the outset, from the point that the grant was announced or that once Mr Dixon had identified his conflict of interest - he wasn’t.”

The hearing continues on Friday afternoon when Mr Moriarty’s barrister, Fiona Forsyth QC, will make further submissions.

ICAC lawyers hit back at suggestion Fleming ‘threw out the rule book’

LAWYERS for the Independent Commissioner Against Corruption have rejected suggestions former ICAC Ken Fleming QC “threw out the rulebook” in investigating an controversial $12m grant to the Darwin Turf Club.

In responding to a lawsuit brought by former DTC board member Damien Moriarty challenging the investigation’s findings on Thursday, counsel for the ICAC, Ben Doyle QC, said the description was “quite unwarranted”.

“It is quite apparent from the report that what the report addressed were not only significant issues, but issues which proved difficult to get to the bottom of due to their inherit complexity, at one level, but also the way in which information was received in stages from time to time,” he said.

“For example, references made at paragraph 400 of the public statement to the fact that even in the course of the ICAC investigation, when a request was made to DTCI for minutes of relevant meetings, in the first instance, only the August minutes were provided when the critical minutes were those from June and July.”

Mr Doyle said arguments made by Mr Moriarty’s lawyers that Mr Fleming was not permitted to make adverse findings against individuals in his report “simply can’t be right”.

“Not only can the ICAC state the action taken, they can provide information about it and it would be very strange if (the ICAC Act) had the kind of constrained or narrow meaning that the plaintiff gives to it,” he said.

In rebutting an argument that Mr Moriarty was not told he was under investigation prior to being grilled by Mr Fleming, who later made adverse public findings against him, Mr Doyle said it was “not a question of necessarily going as far as positively wanting to establish the guilt of an individual person”.

“The question is whether, at the time of the notice in this case, the ICAC is actually exploring and contemplating whether the person has committed improper conduct in a way that’s relevant to the ICAC,” he said.

“That’s subtly different from asking questions which, subject to the answers that are given, might present a clear hypothesis, but if that is not what you are actively contemplating, then that person is not under investigation.

“What is under investigation is the matter of controversy and the possibility that public officers or public bodies have engaged in improper conduct.”

Mr Doyle said whether appropriate notice was given was also of no consequence because Mr Moriarty would still be compelled to answer questions without any right against self-incrimination, whether he was under investigation or not.

“If the notification ought to have been given, the question for your honour is ‘Has the plaintiff demonstrated the reasonable possibility that the decision which comprises the findings made in the investigation report might have been different,” he said.

“In our respectful submission, your honour shouldn’t make that finding because there was no alteration to Mr Moriarty’s legal rights as a result.”

But Justice Judith Kelly pointed out Mr Moriarty may have received different legal advice prior to his examination had he been aware he was under investigation at the time.

“You can answer the question that’s put or you can do what Mr Moriarty appears to have done and ramble on,” she said.

“Maybe he wouldn’t have been quite so helpful if he’d been told that it was in contemplation by the Commissioner that he was being investigated for misconduct.”

The hearing resumes on Friday.

Turf Club ICAC report ‘should never have been published’, court hears

A CORRUPTION watchdog report into a controversial $12m Darwin Turf Club grant should never have been published as there was no lawful justification for the findings to be made public, a court has heard.

Former DTC board member Damien Moriarty is suing former Independent Commissioner Against Corruption, Ken Fleming QC, in the Supreme Court, seeking to have adverse findings against him quashed.

In the second day of the hearing on Thursday, his barrister, Fiona Forsyth QC, said the ICAC Act precluded Mr Fleming from publishing findings based on information extracted using the ICAC’s extraordinary coercive powers.

Ms Forsyth said the ICAC had the power to effectively force witnesses to testify against themselves under oath but that testimony could not then be used as the basis for public findings against them.

She said public statements such as Mr Fleming’s By the Length of the Straight report were limited by the act to providing information “about” an investigation in which otherwise inadmissible evidence was obtained using the powers.

“We say that it’s not providing information about it, we say that it’s simply publishing the report,” she said.

“We say that’s not only inconsistent with the wording, but it’s also inconsistent with the purpose of the act.

“It’s not (supposed to be) made public because to make it public would be to put inadmissible material in the public domain.”

Ms Forsyth said the section of the act that permitted the ICAC to make public statements was only intended to allow for statements of a general nature that did not name individuals accused of wrongdoing.

In support of her arguments, Ms Forsyth read from an explanatory statement that accompanied the passage of the ICAC legislation through the NT parliament in 2017.

“If evidence cannot be used in criminal, civil, or disciplinary proceedings, the benefits of its inclusion in a public report are extremely limited, and such material carries a high risk of unwarranted prejudice to a future proceeding or reputational damage,” she read.

“The privilege against self-incrimination is abrogated during an investigation as a tool to help unearth the relevant evidence, but nothing further can be done specifically against a person unless derivative evidence supports taking that course of action.

“The material can still be referred to in a general or de-identified way and systemic changes can be recommended. The ICAC could, for example, identify in a public report the importance of having particular fraud controls on a particular system without revealing (prohibited) information.”

The hearing continues on Thursday afternoon when counsel for the ICAC, Ben Doyle QC, will respond.

ICAC ‘threw away the rulebook’ in Turf Club pursuit, court hears

FORMER NT corruption watchdog, Ken Fleming QC, “thr(e)w away the rule book” in his pursuit of former Darwin Turf Club board member Damien Moriarty, a court has heard.

In June 2021, the then Independent Commissioner Against Corruption made adverse findings against Mr Moriarty as part of his investigation into a $12m Territory government grant to the DTC to build a grandstand.

Mr Moriarty is now suing Mr Fleming in the Supreme Court, claiming he was misled into believing he was not under investigation when subjected to compulsory examination by the ICAC.

Mr Moriarty’s suit also claims Mr Fleming deliberately excluded him from an opportunity to respond to adverse findings against the board as whole, prior to publishing his report into the saga.

On Wednesday, Mr Moriarty’s barrister, Fiona Forsyth QC, told the court Mr Fleming appeared to have been genuinely concerned about probity issues surrounding the grant, and how the contract was ultimately awarded to a company co-owned by DTC chairman, Brett Dixon.

“But what the ICAC then did was to really push through this investigation into the matter, taking out everything in its path, including Mr Moriarty, who really was only a bit player in the whole saga,” she said.

“What the ICAC seems to have done is to throw away the rule book, just to get things done and make as many findings as possible.”

Damien Moriarty

Ms Forsyth said Mr Moriarty was specifically told he was not under investigation before being grilled by Mr Fleming about false public statements he allegedly made to help protect Mr Dixon.

“Mr Moriarty goes into the examination room, his mobile phone is seized, he’s told ‘You are not under investigation, I can assure you you’re not under investigation’ – the very first question he’s asked is about these statements,” she said.

“It’s simply inconceivable that the propriety of those statements was not within the scope of the investigation at the time.”

Ms Forsyth said “if someone has in fact said you are not under investigation when you were” it was a serious matter.

“Why have a notice that actually requires you to tell someone you’re under investigation if it can simply be dispensed with?” she said.

“It’s a bit like getting a confession out of someone and saying ‘Well, we abrogated your right to self incrimination but, ultimately, you told the truth, so no harm done, we’ll just use it.”

Ms Forsyth said the DTC board was also provided with a “natural justice extract” of adverse findings against it, but was instructed by Mr Fleming to exclude Mr Moriarty and Mr Dixon from the process.

“There was a direction made by the ICAC, a section 147 direction, that he was not to be provided with this information,” she said.

“There was actually a request made that it would be necessary to speak to him (which was rejected by the ICAC).”

The hearing continues on Thursday.