Ewart Brown, the former Premier, may claim privilege and refuse to answer questions when called as a witness at the Commission of Inquiry.

The second day of the tribunal began yesterday with an unsuccessful application from his lawyer, Jerome Lynch QC, for a subpoena issued to Dr Brown to be set aside.

Mr Lynch asked whether it was fair for the commission to compel someone to give evidence in relation to matters “which we know he is being investigated about by police”.

And he said it was possible he would advise his client to claim privilege in court if he was compelled to attend.

“What I’m not prepared to do, as you will understand, is allow anybody to subject themselves to the dangers that inevitably exist when there’s an extant police investigation,” Mr Lynch said.

Dr Brown has been the subject of a long-running police inquiry since June 2011, costing at least $2.2 million of public funds and prompted by allegations of corruption made under oath in the Supreme Court by disgraced financier David Bolden.

Mr Lynch said that placed the former Premier in a “very different capacity from everyone else [giving evidence] in this inquiry”.

“He has spent five years being investigated on the back of a witness, a convicted liar, having made assertions about corruption,” said the lawyer. “He has never been arrested, he has never been questioned, never been asked to provide a single piece of evidence to the police.

“They have made it clear that they are continuing their investigation and it concerns the very matters with which the [Commission of] Inquiry is concerned.”

The commission rejected the request for the subpoena to be set aside but adjourned the date for the former Premier to give evidence to Monday, November 28, to give him and his lawyer what Mr Lynch called “sufficient time to prepare”.

Yesterday’s hearing heard that Dr Brown was told in a letter in June that he “may” be asked to give evidence to the tribunal and that a box of documents was delivered to a house guest at his Bermuda residence the following month, when he was out of the country.

Mr Lynch said Dr Brown did not see the “750 pages” of material, covering six topics, until August 19 and on August 25, Mr Lynch wrote to the commission to ask for eight weeks to consider it. He said Dr Brown would have needed to look beyond the material and it was “not something, we submit, that could be done in short order”.

During a testy hour-long exchange with commission chairman Sir Anthony Evans, he said the commission had “not exactly been speedy itself”, having originally been given a 20-week timeframe to conduct its work when it was formed in February, a deadline since extended to the end of this year.

“You yourself told the public yesterday that there was a vast amount of material to deal with,” he said.

“You have a team of lawyers. He doesn’t have a team of lawyers. He has me. It wasn’t an unreasonable request.”

Mr Lynch said the commission refused the request and issued a subpoena to Dr Brown on August 31.

Sir Anthony said in his opening statement to the tribunal on Wednesday that some of the government contracts to be scrutinised by the tribunal were also under investigation by police.

“With regard to our limited resources, I pause here to note that the commission has had no investigators at our disposal, forensic or otherwise,” the chairman said on Wednesday. “Our budget did not provide for this. I should add that we have not had access to any police files of any matters, which are [or have been] under active police investigation, although we have been made aware that some of the contracts into which we are inquiring are [or have been] the subject of those investigations.”

Mr Lynch said if the commission knew which contracts the police were looking at, and if they were the same as the ones it planned to probe, the commission should not require Dr Brown to give evidence.

He said Dr Brown had “rights in relation to privilege” and Sir Anthony replied: “I only know of one and I won’t mention which one it is.”

The commission, which heard evidence yesterday afternoon from the first of its 20 witnesses, Cabinet Secretary Derrick Binns, will conclude its hearings by Tuesday, October 11. It has until December 31 to report its findings.

Sir Anthony pointed out to Mr Lynch that by adjourning Dr Brown’s evidence, there would be a “penalty” to him as the panel may already have drawn some conclusions after hearing the evidence of the other witnesses.

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