NSW’s anti-corruption agency believes it is not required to disclose material that tends to exonerate those who are facing corruption inquiries.
The Independent Commission Against Corruption believes disclosing exculpatory material is impractical because it would require the agency to reveal all of the information it assembles about people under investigation.
These statements by ICAC counsel Jeremy Kirk SC appear to be at odds with the agency’s previous position that it makes exculpatory material available to those facing corruption inquiries.
Mr Kirk’s remarks were made in the closing days of a civil trial in the NSW Supreme Court during which ICAC and some of its most senior former officials have been accused of misfeasance in public office and a denial of procedural fairness during an inquiry known as Operation Jasper
According to the report from that inquiry: “Of course, counsel assisting and the commission must act fairly, and reveal any material that in their view is reasonably exculpatory.”
But ICAC appeared to take a different view at one stage of that inquiry.
The Jasper report reproduces part of the transcript from the public hearings in which former ICAC commissioner David Ipp said he could not recall any exculpatory evidence from secret compulsory examinations that related to former politician Ian Macdonald.
“But I accept that somewhere in there, there may be something that does exist. I am not going to look for it,” Commissioner Ipp said.
Mr Kirk told the Supreme Court this week that ICAC assembled very large amounts of material during major inquiries and exculpatory material might not always be obvious.
The agency is facing accusations that it failed to disclose exculpatory material about former politician Eddie Obeid and his son Moses before it made findings that they were corrupt.
Counsel for the Obeids, Robert Newlinds SC, has told the court that this failure meant ICAC had denied the Obeids procedural fairness. This, according to Mr Newlinds, meant the agency had no power to make corruption findings against them because that power was subject to the condition that ICAC should conduct itself with procedural fairness.
But Mr Kirk told the court this week that ICAC disagreed.
“My learned friends put that part of the duty of procedural fairness extends to providing exculpatory material. We respectfully submit to the contrary,” Mr Kirk said.
During large inquiries ICAC often held an enormous amount of material, Mr Kirk said.
“To require all of that material to be reviewed to see who it might exculpate … would be an enormous and significant task,” he said.
“It wouldn’t necessarily be obvious to ICAC the ways in which it may or may not be exculpatory.
“So we respectfully suggest it is not practical.
“Because of the practical difficulty, it would tend towards requiring ICAC to just lay everything open, to open up every piece of information it has gathered to potentially affected persons.”
The Obeids have told Justice David Hammerschlag that ICAC failed to disclose exculpatory material during the Jasper inquiry that included:
1) The existence of a six-day gap in ICAC’s chain of custody concerning key evidence against the Obeids. That evidence was confidential state government maps of potential coal exploration areas that, according to ICAC, had been seized during a raid on offices occupied by the Obeids.
2) The fact ICAC officer Katherine Kyriakopoulos, who was supposed to have found the maps during the raid, said in a statement she could not categorically remember seeing the maps.
3) The fact ICAC had an arrangement with its star witness against the Obeids, investment banker Paul Gardner Brook, and failed to reveal information that undermined his credit as a witness.
In the Jasper report, ICAC relied on Mr Brook’s evidence to support its corruption findings against the Obeids over the allocation of coal exploration licences.
The report, published in July 2013, says ICAC “formed a favourable view of Mr Brook and his evidence; he gave his evidence in a slow and careful way, and in a manner that was designed to be generally honest and accurate”.
While making submissions for ICAC, Mr Kirk was interrupted by Justice Hammerschlag, who told him the Obeids were not saying they had lost the opportunity of putting to Mr Brook that his evidence was wrong.
“They say they lost a forensic opportunity of cross-examining him about the fact that his previous conduct in life discloses him as a crook. They did not get that opportunity,” Justice Hammerschlag said.
“They did not have the opportunity of cross-examining Gardner Brook about the fact that he’s a liar.”
In another exchange with Mr Kirk, Justice Hammerschlag said: “If you were going to attack a man’s credit, it would be arguably fairly important to know that he had falsely held himself as having a law degree, that he had falsely held himself as having some executive master of business degree from the University of Chicago, and those things.”
The judge told Mr Kirk that if he had been doing the cross-examination and had information about Mr Brook that had now been tendered in evidence, “you can bet your bottom dollar I would have gone for the jugular”.
“I would have gone for him,” Justice Hammerschlag said.
Mr Kirk, who was representing ICAC, told the judge: “Even I might have done so but they didn’t take him on everything.”
The Obeids are seeking damages and a declaration that the corruption findings against Eddie Obeid Sr and his son Moses were not made according to law and are a nullity. As well as ICAC, they are suing the agency’s former counsel assisting, Geoffrey Watson SC; former commissioner Ipp, and ICAC officers Paul Grainger and Grant Lockley.
They deny liability.
In other submissions for ICAC, Mr Kirk said Mr Watson was not obliged to conduct himself with procedural fairness, the agency was not obliged to call all material witnesses and parties had no right to cross-examine witnesses unless they obtained leave to do so from the ICAC Commissioner.
“Mr Watson owed no duty of procedural fairness to the plaintiffs — none,” Mr Kirk said.
“He is someone the commission uses as an instrument, but he personally owed no duty of procedural fairness.”
On Wednesday, the final day of the trial, Mr Newlinds told the court that the defence case for ICAC and the other defendants amounted to a series of propositions that were all wrong.
Because ICAC hearings were inquiries, rather than adversarial court cases, Mr Newlinds said all evidence should be made available to determine the truth.
“The minute the position becomes that ICAC can cherrypick what particular relevant evidence it wants to tender, it has long since ceased to be an inquiry and it has become adversarial litigation,” he said.
There was an implication in the ICAC Act that meant “the test of the obligation of procedural fairness is that all relevant evidence — not adverse, not exculpatory, simply relevant evidence — be tendered and made available to the affected people”.
Justice Hammerschlag said he had originally hoped to deliver his judgment by September 16 but, because of the complexity and dimensions of the case, he was uncertain if that target could be achieved.
Chris Merritt Legal Affairs Editor- The Australian
WTF (used with permission)