Prominent barrister Charles Waterstreet has denounced moves to grant the NSW Independent Commission Against Corruption the power to initiate criminal prosecutions. “There should be an intervening prosecution body that can independently assess the value of the investigation,” Mr Waterstreet said.
“Investigators have a dog in the race but if you have an independent prosecutor they can at least act as a barrier to ferocious prosecutions carried out without the independence of another view.”
Mr Waterstreet is representing researcher Sandra Lazarus, who is seeking to overturn her conviction on forgery charges. He plans to argue that her conviction is a nullity because the criminal prosecution was initiated by ICAC using a court attendance notice.
This is the same procedure that led to the first prosecution of former Labor minister Ian Macdonald being thrown out because the NSW Local Court found that ICAC had no authority to initiate criminal prosecutions.
Mr Waterstreet said his belief that ICAC had no authority to initiate criminal prosecutions was in line with the ruling in the Macdonald case and the parliament speeches at the time ICAC was established.
His view also coincides with moves by the NSW government to change the ICAC Act in order to give the commission a new power to initiate criminal prosecutions.
Mr Waterstreet said there was a risk that investigators would have an interest in the prosecution of the people who had been the subject of their inquiries.
“That is contradictory to hundreds of years of evolving practice and common sense,” he said.
“You don’t want the cop, in effect, appearing in court and in effect cross-examining himself.”
In the Macdonald case, magistrate Greg Grogin said the intention of parliament on the issue could be gleaned from a parliamentary speech by former premier Nick Greiner who said: “It is important to note that the independent commission will not be engaging in the prosecutorial role.”
THE AUSTRALIAN (30.10.2015)