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ICAC’s Failings are Caused by its Alien Structure

One of the enduring criticisms of the NSW justice system has been its failure to secure criminal convictions against those who have already been processed by the Independent Commission Against Corruption. It’s a problem that is easily fixed.

After ICAC’s catastrophic pursuit of prosecutor Margaret Cunneen SC, it is becoming clear that the root cause of this failure rests entirely within the agency.

The main problem is structural. ICAC is not bound by the rules of evidence and conducts itself accordingly. That might make the work of its lawyers “a lot of fun”, as Commissioner Megan Latham has said, but it also means the level of rigour found in the mainstream justice system is missing at ICAC.

When ICAC supplied untested “evidence” about Margaret Cunneen to the NSW Director of Public Prosecutions, it fell to Solicitor-General Michael Sexton SC to give this agency a dose of reality. After seeking advice from outside NSW, Sexton concluded that ICAC’s “evidence” was insufficient to justify criminal proceedings against Cunneen.

Cunneen might not agree but the entire incident served the public interest. It revealed the sharp differences between ICAC and the mainstream justice system when it comes to determining what sort of conduct requires punishment.

Because ICAC plays by a different set of rules ― ones that are alien to the orthodox system of justice ― nobody should be surprised that its “findings” frequently go nowhere.

If the Cunneen case were an isolated incident, ICAC’s failure could be put down to poor judgment. But the same thing happened to Andrew Poole and that suggests the problem with this agency goes beyond the competence, or otherwise, of its ­officials.

Poole is one of the businessmen who has been smeared by ICAC’s more gullible friends in the media ever since the agency concluded in 2013 that he had engaged in corrupt conduct. It recommended that criminal charges should be considered over his actions as a director of Doyles Creek Mining.

Interests associated with Poole controlled just over 23 per cent of DCM until that company was bought by NuCoal Resources.

After the 2013 report he received the usual smear by friendly media outlets that is the hallmark of ICAC’s findings.

But last month, the NSW ­Director of Public Prosecutions found there was insufficient evidence to justify criminal charges.

Up to this point, Poole’s story is similar to that of Cunneen. In the view of the justice system, there is no evidence that could show ­either of them engaged in conduct that meets the criminal standard of proof ― beyond reasonable doubt. ICAC was wrong.

But in Poole’s case, the justice system has also concluded that there is not even enough evidence to meet the much lower civil standard of proof ― on the balance of probabilities. That point about civil liability can be gleaned from the outcome of a case in December last year when Poole won an insurance dispute against Chubb Insurance. The company had declined to pay $658,000 in legal bills he had incurred during ICAC’s inquiry.

Chubb had refused to pay because ICAC had found him to be corrupt and, the company asserted, Poole had misled Chubb by denying he knew of anything that would lead to a claim on his ­directors’ and officers’ policy.

The wrongdoing ICAC was supposed to have found was at the heart of the case. Until Chubb refused to pay his legal bills, the only way of challenging ICAC’s 2013 finding against him was through judicial review ― which is a narrow argument on the law that does not go to the substance of the matter. Chubb’s reluctance to honour its policy gave him a chance to clear his name.

The civil case meant he was able to re-litigate the matters that were at the heart of ICAC’s finding ― but with some big differences: this time the rules of evidence applied and the procedural safeguards of the courts meant his barrister could properly test the assertions of the other side.

In a judgment in Poole’s favour, Justice William Stevenson of the NSW Supreme Court said he was aware “that the issues before ICAC concerned the same broad factual matters as those before me”.

So Poole has been twice vindicated by the justice system ― once by the DPP and once by the Supreme Court. ICAC was wrong not just on the criminal standard of proof but on the much lower civil standard.

Against this background, the NSW government should be feeling a little uneasy about its recent retrospective legislation that had the effect of validating past ICAC rulings that would otherwise have been beyond the agency’s jurisdiction.

Without that legislation, Poole had been planning to seek a declaration from the Supreme Court that would have expunged that report.

It is still on ICAC’s website and it still asserts that Poole engaged in corrupt conduct and criminal charges should be considered.

When judged by the standards of the mainstream system of law that applies in NSW, that assertion is wrong. It is also immoral for an agency of the state government to assert that a man is corrupt when that has not been supported by authoritative parts of the justice system.

ICAC has removed from its website a 622-word media release about Cunneen that contained the assertion that ICAC’s “evidence” revealed she had attempted to pervert the course of justice.

Based on that precedent ― and common decency ― the agency should accept that it was also wrong about Poole. It should remove that report, regardless of the ill-advised retrospective ­legislation that protects it from challenge.

Chris Merritt
By Permission from the Australian – Legal Affairs

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