Our common law system with all its appeals, formalities and procedures, checks and balances, hard-won evidentiary rules developed for the protection of individual liberty, may be slow and even arcane. But the hierarchy of the courts, and the many sets of eyes that review every allegation at every point, ensure that the citizen is not subject to the arbitrary view of a single person in whom is reposed the functions of investigator, prosecutor, judge and jailer. The right to a fair trial is an essential human right in all countries respecting the rule of law. In fact, the right is much more widespread than that. Article 11 of the Universal Declaration of Human Rights says: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law.”
The presumption of innocence finds expression in the direction to the jury that the onus of proof rests upon the Crown. It is proof beyond a reasonable doubt of every element of an offence as an essential condition precedent to conviction which gives effect to the presumption.
You may not be surprised to hear that, this being the 40th year in which I have served in our common law system, I have developed a guarded sense of caution about governments creating self-contained, autonomous investigating bodies that are not courts and which have no judicial functions but which have extraordinary powers that abrogate fundamental common law and human rights and privileges.
These bodies have no power to determine guilt but that message is lost because the media machines they invariably have ensure that any apparently damaging material they can suggest about their targets is spread across the press, often embroidered with salacious associations that are tenuous at best and malicious fiction at worst. But surely bodies with coercive powers which exceed those of the police, the ability through their media machines to inflict serious damage on the lives and reputations of individuals even during the course of their investigations, and power to issue public reports that condemn people irreparably without need of proper proof, should be required to apply high standards of natural justice. These government investigative bodies, commissions of various sorts, are concerned with a much earlier phase than the courts — determining whether to recommend that a charge be laid — and their recommendation is not determinative.
They bring together in a single office, the roles of investigator, prosecutor, judge and media unit, abandoning the traditional separation of those roles, and the objectivity and fresh sets of eyes on an allegation, or suspicion, the proper criminal justice system boasts.
The staff of ICAC are all part of a team, championing their achievements with a crusading zeal. And the specific ethical obligations of investigator and prosecutor are blurred by people doing both and defending, as it were, the investigation they have initiated or directed.
Even with the best will in the world, the people making the decisions in agencies like ICAC to search and seize and go public are highly likely to be influenced, and influenced early, by the suspicions that are part of the investigative process and susceptible to making subjective rather than objective assessments of the need for the use of invasive powers. There’s an enormous trust and acceptance of these bodies, some of which almost claim infallibility. And then redress to the proper courts of law is often removed or made impossible.
In my case, every lawyer I knew urged upon me the view that ICAC had clearly gone way beyond its charter.
ICAC has neutered both major political parties, taking down a premier, a police minister and has ended the career of Murray Kear, a fine emergency services commissioner, the latter for the obscure offence of dismissing a whistleblower.
It has also encouraged the expropriation of mining leases to the detriment of thousands of innocent shareholders in an equally innocent company, NuCoal. How is ICAC qualified to make such recommendations when it understands nothing about sovereign risk and the consequences to the investment reputation of NSW?
In my case, it went after a barrister, a silk, a member of Bar Council, a deputy senior Crown prosecutor and a commissioner into an inquiry about pedophile priests with almost 40 years of unblemished service. And it targeted her family. All over a car accident I was nowhere near.
The treatment of Kear, a decorated fireman, was particularly disgraceful. In this case, the said whistleblower had made allegations against another employee that were false. Kear made herculean efforts to counsel her and help her adjust to the organisation and the demands of her role. Finally her services were dispensed with and she complained to ICAC. A public hearing was held and ICAC branded Kear corrupt and recommended criminal charges. He was asked to resign and did, losing superannuation benefits that can never be recovered. During the criminal proceedings it was discovered that ICAC had not served upon Kear evidence from witnesses in private hearings who had given testimony favourable to him.
The magistrate said: “I find that investigators cannot simply choose not to serve such evidence from witnesses because they have provided evidence contrary to the prosecution case.”
He found that the ICAC investigation had been conducted in an unreasonable and improper manner and that the proceedings had been initiated without reasonable cause and dismissed the charge because the evidence in support of the defendant’s contention was overwhelming. ICAC still maintains Kear is corrupt and will not remove that finding from its website. He has not been offered the chance to return to his position.
One of the extraordinary powers this outfit has is the power to initiate investigations without anyone else granting terms of reference or otherwise authorising them, formulating its own allegations and investigating in its own way.
It doesn’t require a victim, a complainant, an aggrieved bystander or a policeman saying these people should be charged. It just starts, and no one is there to cross-examine about what they allege against you. You don’t know where it has come from. You just know it’s wrong.
We challenged ICAC’s jurisdiction to investigate an allegation that didn’t amount to corruption and the NSW Court of Appeal agreed with us. When ICAC carted my son, Stephen, his girlfriend Sophia and me to the High Court, Chief Justice Robert French (concerned for my family’s finances and the enormous imbalance between us and the unlimited resources of the state) raised the question of costs. He said to counsel for ICAC that because they sought to pursue the appeal because it affected “a variety of other investigations”, they should undertake to pay our costs. That undertaking was made.
ICAC has since challenged our costs all the way, resulting in them being severely taxed down to about half what has been incurred. My family will end up hundreds of thousands of dollars out of pocket. ICAC knows that even when it loses, it can harm targeted families in this crippling fashion.
I have two other sons who were 24 and 22 when this began, and they have suffered too. The kids didn’t know it but I had risked our home in legal costs to prove what I knew from the start in my gut was true. ICAC had no right to do this to my family.
“We need a strong ICAC,” the catchcry goes. Well, we need a strong police force even more, and we have one because of the stringent accountability and constant scrutiny to which it is subject, including the way its methods and decision-making are tested each day in our proper courts.
Police know that they may be cross-examined in court about every decision they make about any suspect. But the people who make the decisions at ICAC and who storm people’s homes and seize their phones and computers almost always remain faceless.
It is time to query whether “independence” is a quality with no downside. Where there are no controls and no accountability, in any organisation, the conditions for corruption to flourish are rife. Because these government agencies are not courts and can therefore not convict, nor pass sentence, they have developed a means of punishment that is in many cases far worse.
Well in advance of any charge being laid, often in cases where charges will never be laid and even in cases where the decision that no charge will be laid has already been made by the proper authorities, ICAC justifies its existence by condemning the presumed innocent in the media.
Even if we have done nothing for which the proper law would punish us, can any of us be confident that we won’t be caught up in an effort to investigate the perceived breach of some pettifogging ordinance that a government official has decided is suddenly of such importance that all the protections of the common law are to be circumvented?
We must insist that all government agencies remain subject to the rule of law. If we don’t, we can be certain that our hard-won freedoms and protections under the common law will be inexorably eroded.
Margaret Cunneen is a deputy senior Crown prosecutor in NSW. This is an edited extract from her recent address to the Samuel Griffith Society
(WTF) Used with Permission