What next for Tasmanian DPP? … Tim Ellis on four months suspended sentence … Government seeks legal advice from Sealy SC … Meaning of “misbehaviour” … Map of Tasmania 

Taswegian DPP Tim Ellis shows no signs of resigning his lifetime position following his conviction and four months suspended jail sentence for negligent driving causing the death of 27-year-old Natalia Pearn. 

He has been suspended from his job until January 28, by which stage the government expects to have advice from former solicitor general Leigh (Home Brew) Sealy as to whether Timsy can be sacked.  

Section 10 of the DPP Act 1973 states:

The Governor may remove the Director from office if the Director –

(a) except by reason of temporary illness, becomes incapable of performing the duties of his office;

(b) is guilty of misbehaviour; or

(c) becomes bankrupt, or applies to take or takes advantage of a law relating to bankrupt or insolvent debtors, or compounds with his creditors, or makes an assignment of any part of his estate for their benefit.

The finding of magistrate Chris Webster, upheld on appeal, was that the DPP was driving on the wrong side of the road due to inattention or confusion over which lane he should have been in. 

Ellis pleaded not guilty, saying he fell asleep at the wheel. 

One view of “misbehaviour” is that it is confined to official conduct – i.e. fiddling the books or misleading courts. 

However, this was not the view of three former judges who were appointed in 1986 as commissioners to inquiry into a variety of allegations against High Court justice Lionel Murphy, concerning solicitor Morgan Ryan, chief beak Murray Farquhar and chief of police Merv (The Sculler) Wood, and whether there was “proved misbehaviour” under section 72 of the Constitution. 

The commissioners, Sir George Lush (Vic Supremes), Andrew Wells (SA Supremes) and Sir Richard Blackburn (ACT CJ) rejected submissions from Murphy’s lawyers that “behaviour” was restricted to conduct in the judicial office itself. 

They said that the word ‘misbehaviour’ in section 72 has an ordinary meaning, and not in the restricted sense of ‘misconduct in office’. It is not confined, either, to conduct of a criminal nature. It applies were there has been a departure from standards of proper behaviour by a judge so as to have destroyed public confidence that he will continue to do his or her duty. 

Lush wrote: 

[Judges cannot] “be protected from the public interest which their office tends to attract. If their conduct, even in matters remote from their work, is such that it would be judged by the standards of the time to throw doubt on their own suitability to continue in office, or to undermine their authority as judges or the standing of their courts, it may be appropriate to remove them.” 

Much of the ferment about Ellis has been conducted in the social media sphere. 

A Facebook page We Want Tim Ellis Fired apparently got over 8,000 “likes” before it was taken down. 

This generated a small amount of comment, including: 

“Perhaps it was considered an inappropriate even bullying site! Our society needs to be much better than pages like that targeting a single person. It was an appalling page. Probably in breach of FB rules at a guess.” 

And: 

“Comments criticising a person are not necessarily bullying! People have a right to express an opinion in a democracy. If you don’t like the page, say so or avoid it. What people were and are concerned with is the blatant, hypocritical and unacceptable.” 

Shadow of Doubt is keeping tabs on developments with a separate page: 

Something called Fix the Tasmanian Justice System has sprung into life and is also tracking the Ellis case.  

The Hobart Mercury has latched onto the Pearn family, who told the paper that Ellis could atone for the death of their daughter by resigning as DPP.  

Those who know Ellis say there is no shortage of remorse on his part. 

The issue for the governor-in-council is whether it is appropriate for the DPP to be authorising or stopping prosecutions while he’s serving a suspended sentence. 

Which begs the question, can he return to the job after the period of his sentence is over? 

If the DPP seeks a financial settlement, political issues come to the fore. Could the government, and the public, stomach a payout when he’s been suspended for just over a year with salary and entitlements?