It was more a trial than a debate. There was one accused, Wayne Berry, a dozen lawyers and a cross bench of Michael Moore, Helen Szuty and Dennis Stevenson whose judgment would determine the fate of the accused.
Kate Carnell read the indictment of some five charges of misleading the Assembly: that he misnamed the directors of Vitab; that it was a public Australian company; that there was a great deal of competition among Australian TABs for the Vitab deal; that the deal was safe for the ACT and that no Australian punter would be enticed away to Vanuatu by inducements; that the bona fides of the principals of Vitab had been properly checked out.
The indictment carried two other charges: that the accused did not table in the Assembly a direction he had given the ACT TAB that it could sign the Vitab contract as required by law and that the accused did not tell the Assembly for eight weeks that the Victorian TAB had given notice that it was pulling out of its super-pool arrangement with the ACT.
The Labor advocates urged the cross bench that an inquiry was under way by a learned and independent law professor, Dennis Pearce, so the charges should be postponed.
But slowly the Liberal advocates built up a convincing case.
Judge Moore said that future Executives could use the inquiry process to avoid ministerial responsibility by setting up inquiries that might be tangential to the central issue of the culpability of the accused minister.
The Liberal advocates said the question of whether the accused had mislead was different from the Pearce inquiry.
Judge Szuty disagreed. She thought the iquiry was the best place for the first five charges to be aired. The sixth charge had been well-answered by the Labor advocate most learned in the law, Terry Connolly. He said the accused had merely given approval for the contract not a direction to sign it. (Judge Moore agreed.) Judge Szuty thought, however, the accused had not answered the seventh charge.
Judge Moore dismissed the “”inducements” charge, but Judge Stevenson thought it was unanswered.
Judge Moore thought the accused had mislead because he had left an overall impression that the Vitab deal was good and safe.
Judge Moore and Judge Stevenson discussed what degree of guilt was necessary. They said there was no question that the accused had mislead the Assembly, it was only a question of whether it was deliberate (Stevenson J) or reckless (Moore J).
On the question of the mental element (the mens rea, as the lawyers say), Judge Moore thought that the deliberate nature of the misleading statements had been shown because he had had many occasions to correct the false impression, but had failed to do so.
The Liberal advocate Gary Humphries had already put that view.
As the trial went on enormous forensic effort went into who said what when. The tour de force was the summing up by advocate Carnell who added further allegations of misleading during the trial, especially on the subject of the VicTab pulling the pin and the accused telling the Assembly all was well. It convinced the wavering Judge Szuty and the accused was convicted by the only votes that mattered: those of the three independents.