Words of justice in Gordon Nuttall case

Judge Patsy Wolfe.

THIS is an edited version of Chief Judge Patsy Wolfe's 90-minute sentencing

remarks in the Gordon Nuttall case

On Wednesday the jury found you guilty after a trial lasting just over 12 days

of 36 counts of your being an agent corruptly receiving from other persons for

yourself valuable consideration of the amount of $360,000," said Chief Judge

Patsy Wolfe as she opened her sentencing remarks to former Bligh Government

minister Gordon Nuttall.

"Mr Nuttall, you may sit down because this will take some time," she said.
For the next 90 minutes Judge Wolfe enumerated the charges against Nuttall

and questions of law. He faced 36 charges.

Judge Wolfe said the first count referred to Nuttall receiving $60,000 from

businessman Harold Shand. "Counts 2 to 35 refer to the receipts of amounts

from Kenneth Talbot. All but one specify the sum of $8033.33.

"The other which identifies an amount of $16,666.66," Judge Wolfe said,

before saying that Nuttall was being sentenced for the commission of offences

against Section 442B of the Criminal Code of Queensland."That provides, in

terms as are alleged in the indictment: you were a minister of the Crown at

the time you received those payments. "The evidence clearly showed that

you did not disclose any of those payments to the Government of Queensland

or the state of Queensland," the Judge said. "As a member of Cabinet, you

knew, and one expects the jury had no difficulty in finding, that you were

required to disclose any conflict of interest."

Judge Wolfe quoted from the sixth edition of the Queensland Cabinet Handbook:

"The Cabinet process requires the highest standard of propriety to ensure

public confidence in the decisions of executive government."Ministers attending

meetings of Cabinet or Cabinet committees must declare any private interests

held by them or members of their immediate families,in relation to the matters

for the relevant meeting."Ministers should advise the Premier, should they

find themselves in a situation of conflict of interest.

This advice will be tendered at Cabinet, and a record made by the Cabinet

Secretary that the minister so declared his/her pecuniary interest or conflict

of interest and withdrew from the meeting."

Nuttall made no such disclosure or declaration with respect to the appointment

of Shand, the Judge observed.

The court had previously heard that Nuttall, as industrial relations minister,

appointed Shand to the board of WorkCover.

Judge Wolfe said yesterday: "The ministerial handbook is also quite clear on

what the Government expected of you as a minister and a member of the

Executive Council."

She continued: "You were required upon taking up a commission to provide –

all the officers were to provide – fresh details of their pecuniary interests."
Judge Wolfe said earlier versions of the handbook required various disclosures

and required every member of the Legislative Assembly, including ministers,

make a declaration of their pecuniary interests within a month."That is

important to the code of ethics for all members," Judge Wolfe said. "The Code

of Ethical Standards has been updated too, since it was first adopted by the

Legislative Assembly on May 17, 2001."For which the statement of

fundamental principles appears and is available to a member of the

Parliament."

She noted under Chapter 3 of the Code each member of the Legislative

Assembly is required to make a statement of their registrable interests to

the Registrar of Members' Interests who is also the Clerk of the Parliament.
She further quoted: "And if those interests change, to so notify the Registrar

so they may be entered on the registry."

The Code did exclude "gifts received from related persons or from personal

friends in a purely personal capacity", she said."That Code of Ethical Standards

has also made clear that there has always been restrictions on members of

Parliament in financial dealings with executive government, and this has

come about because of the perceived need to ensure the independence of

members from the executive. "Members need to make sure they have no

unauthorised financial dealings with the government."

Judge Wolfe said the Code also set out ethical standards to advise about

conflicts of interest, bribery, receiving, claiming or accepting fees.
She said she would not go through "all those documents that exhibit during

the time you were Minister a very concerted effort on the part of the

Government to ensure that no minister compromised his position or her

position by at the very lowest breaching their ethical responsibilities".
"Now I make this clear. You are not convicted by the jury of breaching any

of those ethical or ministerial standards."All that evidence including the oral

evidence of um . . . ministers and former ministers, the Premier and the

former premier, so far as they reflect upon matters which I have been

speaking, was evidence relating to whether or not you had disclosed any of

these payments to the people or to a registrar. "You were expected to disclose

such payments to the Premier, before Cabinet, to Cabinet or Cabinet

meetings and to the Executive Council you had attended."

Judge Wolfe said documents seen by Nuttall that related to contracts

involving entities associated with the men who had lent him money "may

not have indicated on the face that the lease or the contract of the licence

involved an entity associated with Mr Talbot"."However, you were not

fulfilling your responsibilities in that context, by not asking for further

information."Now all of this goes to what the jury found you guilty on,"

Judge Wolfe said. "And that was one instance that when you received the

monies described in the indictment you believed at the relevant time those

monies were being given to you because the donor hoped for an act of

favouritism at the time. "And even though you may not have intended to

perform the act of favouritism, by the mere act of receiving the benefit

with that belief to the intention of the favour you knowingly encouraged the

donor in paying you doing an act against the Criminal Code in this state".

"You are knowingly profiting from your position as a Minister of the Crown

by reason of your supposed ability . . . to show favouritism," she said.
"And you knowingly put yourself in the position of temptation as regards the

impartial discharge of your duties in consequence of the debt or the payment.
"You were found guilty of these offences. In the background of the law it is

irrelevant whether you intended, when you received that money to show

favour or to forbear to show favour or disfavour to any other person. Indeed

it is irrelevant as to whether you did show favour or forbear to show disfavour.
"There was evidence of things that happened."

Judge Wolfe said it was important to note that other persons had not been

tried for reciprocal offences."Nothing I say should be taken to involve in any

way assumptions about the strength of the case against any person who had

paid you if those matters are eventually to be tried."In sentencing you I'm only

concerned with the evidence admitted in the case against you, Mr Nuttall,

undoubtedly the evidence was such that the jury found that you must have

been willing to receive those sums of money,believe that those who paid were

willingly paying to achieve what they perceived to be a benefit, believing that

you would use your authority as a Cabinet minister."The second thing to be

noted is that the maximum term of imprisonment imposed by the Criminal

Code for an offence of this kind is seven years." Judge Wolfe said Chapter

42 of the Criminal Code contained the offences described as secret commission.

Judge Wolfe said that since 1997 the law had said that if an offence of

official corruption was committed by a Minister of the Crown or in relation

to a Minister of the Crown, the offender would be liable to imprisonment

for 14 years and to fined at the discretion of the court.

She said to Nuttall: "You were not convicted of official corruption, you were

convicted of receipt of secret commission."The fact that you were a Minister

of the Crown makes the commission of this offence one of the gravest examples

of the commission of receiving a secret commission."

Judge Wolfe noted that in the 1998 trial of corrupt NSW minister Rex

Jackson, the judge had said: "We live and are fortunate to live in a

democracy in which members of Parliament decide the laws under which

we shall live and Cabinet ministers hold positions of great power in relation

to the execution of those laws."A Cabinet minister is under an onerous

responsibility to hold his office and discharge his function without fear or f

avour of anyone.".

In that case NSW's Justice Lee went on to say: "Democracy can only survive

when ordinary men and women have faith in the integrity in those whose

responsibility is the preservation of the integrity of Parliament and all its

workings and the interpolate and in the integrity of the executive government.
He continued: "It is particularly important that those who have the privilege,

the honour and the responsibility of a Cabinet rank should not abuse their

position."

Judge Wolfe continued by citing several cases involving public officials

convicted in Australia of offences relating to the discharge of their duties

and questions of improper conduct before returning to what Queensland

law said about sentencing.She said that in cases such as that of Nuttall, in

which a government minister had committed such a crime: "One of the

most important principles has to be deterrence, to deter the offender

other persons from committing the same offences."

Judge Wolfe said there were conditions under which a court could consider

measures which would help the offender to be rehabilitated. "In this case I

mention, I would doubt that rehabilitation would be a factor, paying regard to

his age and when the offence occurred," she told the court. "That does not mean

that a custodial sentence is not to be imposed, it must be imposed," Judge Wolfe

said. But, she said, balancing the type of offence and having regard to the

reservations of the many judgments to which her sentencing remarks

referred, this was not a case calling for a cumulative sentence.

Judge Wolfe said she had taken particular notice of the sentencing

observations of the learned judges in the cases to which she had

previously referred.She noted the trial had taken less than the six weeks

that could have been expected and because of that, the resources of the courts

had been saved, along with the resources of the Government."This happened to

the Government while you were a minister – many, many public servants

would have been required to come up her." Judge Wolfe said Nuttall's

co-operation with the legal process had to be taken into account in passing

sentence on him."Your co-operation with justice in respect of your conduct

at the trial should be acknowledged," she said."You are receiving the maximum

sentence," Judge Wolfe told Nuttall. She went on say she did not take into

account anything that might happen to Nuttall's superannuation or other

parliamentary entitlements as a result of his conviction."So far as the sentence is

concerned they are irrelevant," she said. " Accordingly, in respect of counts one,

two and 36 inclusive, separation be taken for each count."I order you be

imprisoned for a sentence of seven years. "I order that the date you are

eligible for parole is in 2½ years, I'm sorry I have to fix that date.

"I order the date you are eligible be fixed at the second of June 2012.
"Now understand that this is not the date you are released – this is the

date you are eligible for parole."It is a matter for the Parole Board."