There is now no doubt that former NSW premier Barry O’Farrell relied upon a flawed ICAC report when his government destroyed private property worth several hundred million dollars.
That wrong needs to be righted and the statement in parliament this week by fellow Liberal Peter Phelps will help. It has blown the whistle on O’Farrell’s lack of judgment and revealed outrageous conduct during ICAC’s inquiries into the allocation of coal exploration licences.
This is not the first time ICAC has suppressed exculpatory evidence. It happened in the botched criminal prosecution of former emergency services commissioner Murray Kear and it forms the basis of a civil claim by businessman Charif Kazal. Another businessman, Craig Ransley, was exonerated in court only after the new regime at ICAC released exculpatory evidence that had previously been withheld.
The Phelps statement raises uncomfortable questions for Nathan Rees, a former Labor premier, who changed his evidence about jailed former minister Ian Macdonald in a way that favoured ICAC’s case theory.
Rees and O’Farrell were both invited to provide statements but have not done so.
Also mentioned by Phelps is ICAC’s former counsel assisting, Geoffrey Watson SC. Phelps has obtained copies of the transcript of ICAC’s private examination of Rees and alleges Watson was the man asking the questions. Watson has denied the allegations Phelps made against him in parliament.
Rees’s answers on the transcript are starkly at odds with what he later said at ICAC’s public hearing.
The Phelps statement refers several times to ICAC’s Acacia inquiry. Watson did not have any role in Acacia.
A solicitor who was closely involved with this inquiry says it was conducted jointly with two other inquiries known as Operation Jarillo and Operation Jasper.
When Watson was asked if the transcript of the private hearing bearing his name was wrong he replied: “Mr Phelps says that I was guilty of malfeasance and that I withheld exculpatory evidence in Operation Acacia. This is untrue. I was not even in Operation Acacia. I did not know whether Mr Rees gave evidence in Operation Acacia — it looks like he did.
“I was not, by law, permitted to see any submissions made about Mr Rees’s evidence. Obviously, given I was not in the inquiry, I was not able to tender — much less withhold — any evidence.
“So you can see what Mr Phelps said is false. That won’t worry him because what he says is privileged, but now you know the facts you are in a different position.
“Please do not write back — I am busy and have moved on to other work beyond ICAC. So should you,” Watson added.
The bottom line in all this is that it does not matter which individual suppressed the fact that Rees had changed his story. The commission itself is responsible for its reports.
And the Acacia report that went to parliament makes no mention of the changeable nature of Rees’s evidence. To the contrary, it says: “Mr Rees was an impressive witness.”
Ron Heinrich, who is the solicitor acting for Macdonald, said it was clear that exculpatory evidence had been withheld.
“Mr Rees gave contradictory evidence in the private hearings as opposed to the public hearings — a fact that must have been known to ICAC,” said Heinrich, who is a former president of the Law Council of Australia.
Legal Affairs Editor
(WTF) Used with permission