What the cat dragged in

Who moved my star witness – how Penny Armytage gets to investigate herself

Prologue
It all started with one of those yawn’n’sigh headlines that seem to artificially link two otherwise discrete news threads: “Furore over Williams killing: Sir Ken ordered to leave” (Age 7 May 2011; henceforth “the Age 7 May article”). Any fresh angle on the April 2010 murder of Carl Williams would be newsworthy of course, but the four-days-on-twist on the 2 May 2011 resignation announcement of second-in-charge (to Simon Overland) cop Sir Ken Jones (intended to be effective from 5 August 2011, not 6 May) seemed to be a minor development indeed – office politics dressed up as daylight murder, you might say.

Subsequent developments have proved me wrong, but spot on, in other ways. The media/OPI lynching of the Godwin Grech-like Tristan Weston completes a vicious circle – this is office politics dressed up as a supposed corruption scandal, when the central figure is a naïve, apparently well-intentioned GenXer (as opposed to someone with real power, viz just about any boomer involved in the whole thing).

So what is the real story here? Certainly, you won’t find it in the OPI’s “Crossing the Line” Report (PDF), which mentions the Age 7 May article in its Chronology, but otherwise leaves the issues raised for another inquiry (the OPI’s inquiry into Sir Ken Jones is continuing, and although the identity of the government leaker behind the Age 7 May article is yet to be publicly established, Tristan Weston seems to be a definite non-candidate here). But I’m not holding my breath that the eventual outcome of the OPI’s ongoing inquiry into Sir Ken Jones is going to clarify much, either; as the fine-print in its Report wonderfully cautions: “. . . Victorian law permits me to report my findings to the Ombudsman but prohibits me from discussing or reporting them publicly. Accordingly, there will be some gaps in the narrative of this report and in my findings” (emphasis added).

Ah, we are back to playing that favourite game of the Melbourne establishment: “My secret is bigger than yours” – a game that, I suggest, Xers are generally temperamentally unsuited and/or too career-castrated to play. The Herald Sun, eternal fountain of leaks, happily and capriciously “umpires” this game, such as by using a “good” leak to out a leaker of “bad” ( = the other newspaper) leaks.

The Herald Sun’s dissemination of corruptly-obtained details of the OPI Report on the eve of the Report’s official publication is a notable recent example of a scoop with little public, but plenty of private interest. The scoop article’s first line: “The State Government today will come under pressure to sack adviser Tristan Weston over a finding by the police watchdog that he leaked secret information” (same URL) packs a punch much greater than that of a typical leak story; viz the kudos of getting a publication head-start over one’s media rivals. Just as with its infamous front-page Carl Williams story on the day of his murder, the Herald Sun was brazenly calling for a named head on a platter. Other than quickly expunging (as soon as the job is done, you might say) both stories from its digital archive (so far, not wholly successfully in the case of the Tristan Weston story), the Herald Sun’s partisan, and almost certainly criminal, collusion has been wholly unpunished, again.

For its part, the Age can take some credit for the scalp of police chief Simon Overland, who resigned (presumably under some duress) on 19 June. However, it took a veritable sieve-full of leaks – in the Age, Herald Sun, and Australian – to achieve this (whether or not Sir Ken Jones leaked to the Age, the paper clearly barracked for him).

Importantly, the Age’s leaks (in the April-June 2011 period canvassed by the OPI “Crossing the Line” Report) generally differ from the Herald Sun’s on the test of public interest. The Herald Sun ran a henpecking litany of one-off, minor complaints against Simon Overland’s management record (dodgy gun holsters, manky IT systems, fudged crime stats), while the Age coverage had the benefit of a common thread, of curious decision-making, and possible corruption, at the highest levels of the police force and its supervising agencies. I would argue that, as a last resort, media coverage of possible high-level corruption, even by illegal means (= leaks) is far more justifiable than the “My idiot boss has done it again - EXCLUSIVE” type of stories ran by the Herald Sun.

The secrets of Penny Armytage I
First, it may help to know who Penny Armytage is:

"Penny Armytage has been the Secretary of the Victorian Department of Justice since 2003. The justice portfolio is diverse and incorporates nine ministerial portfolios –Attorney-General; Police & Emergency Services; Bushfire Response; Corrections; Crime Prevention; Establishment of an anti-corruption commission; Consumer Affairs; Gaming, and Racing – concerned with the administration, reform and enforcement of the law, as well as with regulation in areas such as gambling and liquor. The Department has a budget of $4.4 billion, including Victoria Police, and employs more than 6000 staff. Before becoming Secretary, Ms Armytage worked as Executive Director, Operations at the Department of Human Services; and prior to that *[in 1999-2002] as the Commissioner for the Office of Correctional Services with responsibility for Victoria’s correctional system. Ms Armytage holds a Bachelor of Social Work from the Preston Institute of Technology and is a National Fellow of the Institute of Public Administration Australia. She is also a member of the Australian Institute of Company Directors. She has been a senior executive in the Victorian Public Service for the past 20 years". (emphasis added).

The Age 7 May article notes that: “Five inquiries into the killing of Williams are underway. The Department of Justice inquiry reports to Ms Armytage, raising potential conflict of interest concerns given her role in approving his prison placement”. In fact, AFAICT, all inquiries into the killing of Carl Williams ultimately are under the supervision of Ms Armytage.

Conflict of interest aside, the Age 7 May article made two other claims adverse to Penny Armytage. One was that she personally made a prison placement decision that could be seen to have some connection with Carl Williams’ murder. This sounds vague, but follow-up reports have not thrown up any more light on it to date.

Apart from its vagueness, this alleged connection at first seemed to me on par with blaming, in hindsight, the monarch who issues a royal pardon to a rehabilitated criminal who subsequently runs amok; a mistake for sure, but one of a type in which the rubber-stamp (for that is all “decision-making” entails that high up) is necessarily applied more with pomp than with conscious intent, good or bad.

The further inference in the Age 7 May article – Sir Ken Jones was marched out the door the previous day, because of his perceived role in fostering the adverse Armytage-Carl Williams connection – could likewise be seen as a further stretch of an already flimsy premise. Coincidences happen, and a conspiracy is hard to conjure out of what looks like an over-reaction (if indeed there is any connection at all) to a non-event, relatively speaking. And there this whole saga could well have stopped, had not Simon Overland ordered (or if you prefer, requested of) his close friend Paul Jevtovic*, then the acting head of the OPI, that the OPI investigate Sir Ken Jones – this inquiry also was initiated on 6 May, the day Sir Ken Jones was marched out. The timing here is important: it appears to confirm Simon Overland knew at the time that the Age was going to run the adverse Penny Armytage story the next day. As the Age’s 7 May article recites, Ms Armytage, was approached for comment, but did not respond, before that night’s deadline (i.e. the evening of 6 May). It appears likely, therefore, that sometime on 6 May 2011, an incandescent Ms Armytage (as alerted by the Age) was in communication with a chastened Mr Overland, who then did what he had to do.

The Ken Jones OPI investigation is ongoing, so it is hard to comment on authoritatively. However, judging from the time-period and matters covered by its recent Tristan Weston Report, it appears that a substantial focus of it may be that Sir Ken Jones could have bad-mouthed his employer, in the weeks before or after he was marched-out**, including by leaking material personally damaging to Overland’s reputation, but otherwise not actually prejudicing the administration of justice in this state, AFAICT. Oh, and it necessitated using “emergency” phone tap powers – on par with those that law enforcement uses for other office-politics matters, like, you know, investigating murders.

When the over-reaction is this big, the conspiracy is back on, with a vengeance. And while it is tempting to speculate that Simon Overland’s colossal (bruised) ego is all the explanation that the OPI Ken Jones inquiry needs for its “why”, I would speculate that Overland’s departure early on proves the stakes are much higher than Overland’s ego, and indeed were so from the beginning.

A good witch-hunt ends, as we know, with a fire, and a fire begins with a point of ignition. The Sir Ken Jones OPI drama, which then also begat the (metaphorical) burning alive of Tristan Weston in the time-honoured way, has an emphatic, single ignition point: the Age 7 May article (the gist of which, as I’ve pointed out above, was presumably known about by Simon Overland on 6 May, at least). Two people were seen (= named) at the source of this metaphorical fire: Simon Overland (who we have already established to be an accessory able to be dumped when things got too hot, and so not the ringleader), and Penny Armytage. Ms Armytage thus appears to be, for some reason, a protected species of the highest order. With her protection from media scrutiny having worked so well, so far (the biggest “blip”, the Age 7 May article, has led to perhaps 0.1% of the media follow-up accorded to the hapless Tristan Weston), working out the “why” of Ms Armytage’s protected status is a difficult, necessarily speculative task.

The secrets of Penny Armytage II
Not a secret as such, but a matter of a curious lack of media interest, is the former role Penny Armytage held between 1999 and 2002: Commissioner, Office of Correctional Services (now job-titled “Corrections Commissioner” and held by Bob Hastings). It can be assumed then, that as well as being something of a public-service all-rounder, Ms Armytage has deep, if not exactly fresh, first-hand knowledge of the operations and culture of Corrections Victoria, the entity in charge of Barwon Prison.

What leaked material the Age had obtained to run its 7 May Armytage claims was, AFAICT, an email sent from Ms Armytage’s office approving Williams’ and Matthew Johnson’s co-location (achieved via separate intra-Barwon-Prison relocations) within the Acacia Unit 1 (one of four separate units within the Acacia Unit proper, which houses 14 prisoners in total).

As I said above, my first reaction to this story was that this was likely to be a personal decision by Ms Armytage only in a very technical sense. In other words, she wouldn’t have applied her rubber-stamp without first taking advice – and who would have thought otherwise? Again, subsequent events have suggested that this was no ordinary bureaucratic decision, of the sort easily defused, when under close query, by showing the paper trail leading upwards to the ultimate rubber-stamper’s desk.

A 25 May 2011 briefing note from Ms Armytage to three state ministers, apparently written in response to the 7 May Age report, “is believed to identify senior police and Corrections Victoria officials also involved in the decision-making process that led to Williams being placed with Johnson”. Nonetheless, an FOI request by the Age to obtain this briefing note was refused (same URL), so we are none the wiser as to whom the minions-to-take-the-blame might be, other than that they were “senior” minions (in which case, surely there is an overriding public interest in them being named?). Fortunately, Matthew Johnson’s September 2011 murder trial showed Ms Armytage being contradicted by at least one such senior minion, on the specific “Who moved?” question:

“Peter Hutchinson, a senior manager with Corrections Victoria, said in evidence that close consideration had been given whether Williams and Johnson should share a cell and that a senior policeman who was briefed on the situation had expressed no concerns. Yet that officer told the court that ‘we weren't involved in the decision to place them there’” (emphasis added).

So Penny Armytage’s answer to the “Who moved?” question – appears to be “Mr/Ms Nobody”.

The final claim adverse to Penny Armytage made by the Age in its 7 May story was expressed thus:

“Senior police are also believed to hold concerns about a request by Ms Armytage to be notified in advance of police searches of any departmental files. It is also believed a compromise was struck under which Ms Armytage was given notice of the police seizure of departmental files”.
No, I don’t get what the “compromise” was either; if we are talking about notice, after the event, of police seizure of departmental files, surely that’s a standard entitlement. If, OTOH, it is notice before the event, that is quite some favour – even to be asking.

We do know, through evidence given by Detective Sergeant Wayne Newman at Matthew Johnson’s murder trial on 15 September 2011, that there have been at least three police warrants executed against the Department of Justice in connection with Carl Williams’ murder, and accompanying seizures of material: on 12 November and 17 December 2010, and 3 February 2011. The fact and dates of these raids has received, AFAICT, no media coverage to date.

Will we ever know the “Who moved?” truth?
Judge at Matthew Johnson’s recent murder trial, Lex Lasry, recently used the platform provided by Johnson’s pre-sentence hearing to make a none-too-subtle (when moderated against the scale of judges entering the political fray straight from the bench) reference to the “Who moved?” question:

"Justice Lasry said that made the fact that Williams and Johnson had been housed in the same prison unit 'all the more amazing'. 'What the authorities did by placing Williams, or leaving him in that unit for the time they did, is a matter for somebody else to think about, I suppose,' he said. 'It just amazes me. It is just breathtaking.'” (emphasis added).

Justice Lasry’s “I suppose” has a clever, barely-hidden sarcasm about it. No wonder the Herald Sun’s report omitted these two words, then.

Meanwhile, Premier Ted Baillieu seems to be a lot further from losing patience with Ms Armytage than he was as Opposition Leader in the immediate aftermath of Williams’ murder:

“Ted Baillieu said a judicial inquiry may be required as Corrections Victoria could not be trusted to investigate the events surrounding Williams' brutal death, the Herald Sun reports . . . Mr Baillieu has raised questions about why the Office of Police Integrity was overseeing the homicide investigation as it has a track record of failure and is itself under government review". (emphasis added).

and

"[Opposition] Leader Ted Baillieu says many questions remain unanswered. 'There should be an anti-corruption commission in Victoria. Now when it comes to what's happened down at Barwon Prison, something terribly, terribly wrong has gone on there. Where a high security prisoner can be brutally murdered in the middle of the highest security jail we have something, terribly wrong has gone on'".
Premier Baillieu’s closest approach to snapping-point on this issue seems to have been, ironically, perhaps, on the very day he was widely quoted (via a spokesman) in the morning papers as having full confidence in Ms Armytage. The cause for the Premier’s abrupt change in mood appears to have been two emboldened official statements from Corrections Victoria; one made by a spokesman the evening prior:

“No prison staff have been disciplined [in connection with Carl Williams’ murder] and Corrections Victoria’s focus has been to improve the way we operate across all prisons . . . "Exercise bikes are still in some units, but Corrections Victoria has taken steps to secure loose parts”.
and the other on 30 September, by Corrections Commissioner Bob Hastings:

"He said no evidence had been found that Barwon Prison staff were corrupt and had been involved in the killing at Victoria's highest-security jail . . . 'After any major incident we take a critical view of how we manage a complex and changing environment. I can tell you that in the year and a half since Carl Williams’ death [NOTE: not “murder”, even though Matthew Johnson had been convicted the previous day] as the Corrections Commissioner I have overseen an enormous amount of work and our staff have invested countless hours in reviewing our prison operations to identify gaps in the system and make necessary improvements'".
While Commissioner Hastings no doubt would have made his predecessor, and now big boss, Penny Armytage, proud with his empty waffle, only a handful (as opposed to “countless”) hours later, Premier Baillieu nicely demonstrated that Barwon Prison is not the only “complex and changing environment” in the state, by his back-to-square-one use of the f-word in this media conference:

. . .

TED BAILLIEU:
I think Victorians are concerned about these issues. As I said at the time, we will await the inquiries that are taking place. There are a number on foot, clearly there was a failure at Barwon Prison; it had dramatic consequences. And as a result of that, we need to await those inquiries. (emphasis added)

. . .

REPORTER:
How soon do you expect those [inquiries] to report?

TED BAILLIEU:
That’s a matter for those bodies, but I think everybody in Victoria would hope that the sooner those inquiries are completed, the better.

. . .

REPORTER:
Is an investigation into David Prideaux’s disappearance continuing?

TED BAILLIEU:
Well, that’s a matter for Victoria Police, and again, not a matter for me, but clearly a matter of interest.David Prideaux’ mysterious 6 June 2011 disappearance (and it seems safe now to assume, death, most likely from suicide or hypothermia) came one month after the Penny Armytage headlines (and Sir Ken Jones’ abrupt exit), and a score of days before Simon Overland’s own early exit – so allowing, in a nick of time, Overland to close the case pre-emptively, as it were. Albeit Simon Overland’s (acting) successor is not apparently pulling out all stops on this habeus corpus, either.

So we may never know whether the conspicuous lack of any sanction/discipline on any Barwon Prison staff arising from Carl Williams’ murder caused Prideaux to vicariously “discipline” himself. Alternatively, it is not that difficult to accidentally die of hypothermia in the Victorian high-country in winter – a “complex and changing environment”, you might say. As the Barwon Prison staff member/s responsible for monitoring the CCTV screens on the day of Carl Williams’ murder found out, a mere half-hour or so of sustained inattention can sometimes cost a life.





NOTES
* We know that Simon Overland laid his complaint with Paul Jevtovic in person on 6 May. Simon Overland and Paul Jevtovic’s friendship was dealt with as follows in the OPI “Crossing the Line” Report (PDF link above; Appendix 2 p 83):

“Mr Weston’s response also alleges that my deputy, Mr Paul Jevtovic, who, as Acting Director, commenced this investigation, is a ‘close friend’ of Mr Overland. I am satisfied that this allegation is without foundation. In a recent report the Ombudsman found no evidence of conflict of interest, improper motive, or any other impropriety affecting Mr Jevtovic’s decision to commence the investigation.” (Then footnotes 10 Oct 2011 Ombudsman Report, “Investigation into the Office of Police Integrity handling of a complaint”, without specifying page number etc)

From this, you might think that the Ombudsman’s 10 Oct 2011 Report (PDF) has therefore closely analysed the relationship between Simon Overland and Paul Jevtovic. In fact, these two paragraphs are the only discussion of it:

"45. During the course of my investigation, I examined whether OPI officers had a conflict of interest with regard to their involvement in the assessment and investigation of the complaint about Mr Jones. Two OPI officers in particular were brought to the attention of my investigators because of alleged conflicts of interest. However, I did not find any evidence that OPI officers wrongly influenced or directed the OPI’s assessment or investigation nor that the OPI acted detrimentally to a person believed to be a whistleblower. However, I am investigating the conduct of Victoria Police as a separate [i.e. ongoing, as at October 2011] investigation.

46. My investigation established that Mr Jevtovic’s decision to accept the complaint was not discretionary in nature. Rather, as the Acting Director, Police Integrity at the time, he was obliged to accept a complaint about the conduct of a Deputy Commissioner either pursuant to section 40(4) (a) of the Police Integrity Act or because the complaint was a deemed disclosure under the WPA by virtue of section 39(2)of the Police Integrity Act" (same URL).

The plain meaning of the above two paragraphs, I suggest, is far from the gloss put on it by the OPI Report. As far as Paul Jevtovic receiving Simon Overland’s complaint against Ken Jones, there was no possible conflict of interest because he simply had no decision to make. OTOH, as far as Simon Overland making a complaint against Ken Jones to Paul Jevtovic, whether there was a conflict of interest is a matter of continuing inquiry.

In its defence, perhaps the OPI missed the nuances here because it relied the Herald Sun’s 12 October summary – “Yesterday's Ombudsman's report cleared the OPI of any conflict of interest or acting inappropriately in ordering the investigations of Sir Ken and Mr Weston” – instead of reading the actual Ombudsman’s Report.

** Because Sir Ken Jones was marched-out, but then placed on “gardening leave” until his originally scheduled departure date, he was in an unusual legal position between 6 May and 5 August 2011. The more usual practice when marching-out employees is to make a clean break; i.e. to pay them in lieu of notice. This makes no financial difference to the employer (and may be tax-advantageous to the employee). By not making a clean break, i.e. by continuing to pay an employee who is not only unproductive but persona non grata, the employer risks liability during the interim period. But the particular circumstances of Sir Ken Jones vis a vis the OPI inquiry meant that there was also a significant upside of this arrangement for Simon Overland: the OPI could continue to monitor Sir Ken Jones long after he had “left the building”. The impropriety of so doing seems obvious, IMO, an impression confirmed by the inaccurate moniker “gardening leave”. “Gardening leave” is traditionally used by employers as an informal restraint of trade; i.e. to stop (those who would otherwise be) former employees immediately starting work for a competitor of the employer. Its explicit use to (legally) spy on someone who would otherwise be a former employee is a novel thing indeed.