Premier’s Memo (included in documents produced under a subpoena at the Local Court in Burwood in June 1999, retyped by Dr A S Ehl, 1 May 2000)
23rd February 1979
Premier of New South Wales
CONDITIONS UNDER WHICH CROWN EMPLOYEES WOULD BE GRANTED CROWN REPRESENTATION
(Memo to all Ministers)
In 1962 the then Premier wrote to all Ministers outlining the conditions under which a Crown employee would be granted Crown representation. The letter was in following terms:-
‘It has now been decided to adopt the principle that once a decision has been made that the Crown should act on behalf of the employee concerned the Crown will thereafter assume liability whatever may be the result of the proceedings and indemnify the employee against any verdict an/or costs which may be recorded against him.
Having regard to the adoption of this principle it is desired that in future the following action should be taken in cases of this nature-
When an employee has been charged with a criminal offence or civil proceedings have been instituted against him and the matter arose from some actions taken by him in the course of his duty, he may report the facts and request that the Crown Solicitor should act for him in the matter. If such request is made, he must give all information desired by the authorities to decide if it is a proper case for the defence to be conducted by the Crown. A thorough departmental investigation should be undertaken and, if as a result it is considered by the department that the request should be agreed to, the circumstances should be submitted for the consideration of the Department of the Attorney General and of Justice where the final decision will be made as to whether the case is one in which the Crown should act, with the consequential indemnification of the employee against any verdict and costs.
If in the course of the trial it appears that the employee acted unreasonably and has not made full disclosure in the departmental investigation, the Crown will still accept liability but disciplinary action may still be taken against the employee”.
I have been informed by our colleague, the Attorney General, that, in some instances, Departments and Authorities are not strictly adhering to the guidelines referred to above.
The Attorney General points out that one of the difficulties in dealing with applications for Crown representation is that often the request is received only a few days before the hearing date of the date for filing the defence. Of course, this requires the application to be processed with utmost urgency within the Department with the resultant administrative difficulties. Furthermore, the problems of the Crown solicitor are often far greater and it may be that the solicitor assigned to the matter cannot give detailed consideration within the necessary time and an adjournment has to be sought. As you will appreciate, this can result in additional costs to all parties, including the Crown…./2
The Attorney General has emphasized that under no circumstances should the approval given for Crown representation be regarded as a formality and applications should be forwarded in the first instance, to his Department with sufficient time to allow full consideration of each request.
In this regard, my attention has been drawn to the fact that, in numerous cases, where requests are made for Crown representation, Department have not properly and fully investigated the circumstances surrounding an incident and the officer’s request for assistance. It should be stressed that the onus is on the Department forwarding the request to ensure the applicant is entitled to Crown representation and accordingly a full investigation should be carried out as to whether there has been a full and complete disclosure by the applicant of the circumstances of the matter, the conduct of the applicant, and any other matters relevant to the case. Comprehensive reports of the investigation officers showing that a thorough investigation has been carried out should accompany the application. It should be remembered, also, that when forwarding a request for representation, it is imperative that Departmental Heads make a firm recommendation so that the case may be properly considered.
I understand that on occasions requests are forwarded to the department of the Attorney General and of Justice for Crown representation in actions which have been initiated by the Crown employee. This, it should be stressed, is contrary to the intention of the scheme as the 1962 guidelines require the legal proceedings have been instituted against the employee.
It would be appreciated if you would be good enough to bring these matters to the notice of the Departments, sub Departments and Statutory Authorities associated with your administration for appropriate attention to the procedures to be adopted.
(signed) T. W. Haines
Under Secretary of Justice
2nd March 1979
The Crown Solicitor.