The NSW government’s anti-corruption agency has rejected a court’s findings that say it ran an improper investigation of former emergency services commissioner Murray Kear, withheld exculpatory evidence and initiated a criminal prosecution against him without reasonable cause.
According to the Independent Commission Against Corruption, the magistrate who made those findings did not properly analyse key evidence, omitted consideration of relevant facts and made comments in his rulings that “are with great respect both incorrect and misconceived”.
ICAC’s outburst has come to light two years after Magistrate Greg Grogin severely criticised the agency in two judgments that were never challenged in the courts and which acquitted Mr Kear of criminal charges initiated by ICAC.
Mr Kear has denounced the commission’s decision to raise doubts about those judgments as an attempt to re-try him on criminal charges that have already been thrown out.
The Australian Lawyers Alliance said it would have been better for the administration of justice if the commission had taken a different approach.
ALA criminal justice spokesman Greg Barns said: “It is important for the administration of justice in NSW that there be a harmonious relationship between the courts and institutions such as ICAC.
“It would have been preferable if rather than being combative in its response to the Local Court’s judgment, for ICAC to acknowledge that the court took a particular view and while it disagreed with that view it would reflect on the court’s findings in order to improve its operations.’’
The dispute between ICAC and the Local Court comes at a time when the NSW government has already been confronted by a series of other incidents in which ICAC suppressed evidence that was at odds with its narrative.
Disclosures under parliamentary privilege by the Liberal Party’s Peter Phelps have shown the commission suppressed secret testimony from former premiers Kristina Keneally and Nathan Rees that contradicted the narrative of a report it presented to parliament on coal exploration leases issued by the previous Labor government.
In April, The Australian revealed ICAC had hidden a medical report showing the star witness at its coal inquiry, Paul Gardner Brook, had been diagnosed with brain damage and amnesia days before he gave evidence for the commission at a public hearing.
Its decision to hit back at Mr Grogin is due to the fact his findings on the commission’s shortcomings formed the basis for a complaint in which Mr Kear accused the agency of misconduct and maladministration.
Mr Grogin, who is now an acting judge of the NSW District Court, acquitted Mr Kear of charges that had been initiated by ICAC before being taken over by the Office of the Director of Public Prosecutions.
ICAC provided evidence to the DPP after the commission had found Mr Kear corrupt and said he had dismissed his deputy, Tara McCarthy, as a reprisal because she had made a public interest disclosure.
The Grogin judgments, handed down on March 16 and May 25 of 2016, found there was “no element of revenge, payback or retaliation” in Ms McCarthy’s dismissal.
Former ICAC commissioner David Ipp presided over the public hearings of the Kear inquiry but his successor, former commissioner Megan Latham, endorsed the report that went to parliament.
Mr Grogin found that the investigation had failed to meet the optimum standards, the evidence in favour of Mr Kear was overwhelming and the commission had no justifiable excuse for withholding transcripts of evidence from Mr Kear until served with a subpoena by his lawyers while the trial was under way.
The magistrate found the criminal case had been initiated without reasonable cause; interviews ICAC had conducted with witnesses had been improperly withheld; the commission had failed to investigate a relevant aspect of the case; had failed to provide the Crown with records of interview that suggested Mr Kear was not guilty; and the initial assessment of the evidence and the decision to prosecute were “contrary to the substance of the overall evidence”.
When assessing the evidence for a potential criminal prosecution, “it is not sufficient to simply turn a blind eye to that material which would not assist the prosecution”, Mr Grogin wrote in his May 25 judgment, which awarded Mr Kear indemnity costs.
While the DPP had run the prosecution, Mr Kear said that by the end of the trial he realised “the DPP had its hands tied to some extent by ICAC not giving them the evidence”.
While the Grogin judgments were handed down two years ago, ICAC’s rejection of the key findings is outlined in a response to Mr Kear’s complaint that was signed by Chief Commissioner Peter Hall, who took office last year and was not involved in the investigation.
ICAC inspector Bruce McClintock SC, who also took office last year, has sided with ICAC and rejected Mr Kear’s complaint about his treatment.
In a report dated June 6 that has been provided to state parliament, Mr McClintock reproduces several pages of material from the ICAC report that Mr Grogin found was based on an investigation that failed to meet optimum standards.
Mr McClintock, who is not a judicial officer, re-examined key evidence that was before Mr Grogin and reached contrary conclusions to the magistrate on several points.
“I regret to say that the learned magistrate does not seem to have understood this relatively obvious point,” Mr McClintock writes in one part of his report.
“If he had, I doubt whether he would have acquitted Kear.”
When discussing the finding that ICAC had failed to put forward exculpatory evidence at its inquiry, Mr McClintock writes that “when properly understood, the material in question was not ‘exculpatory’.”
“I regret to say that his honour seems to have misunderstood the effect of the evidence in question,” Mr McClintock writes. “I disagree with his honour’s findings and consider that there was a reasonable basis for the prosecution.”
Mr Kear said he always knew there was a possibility his complaint about his treatment by ICAC might be rejected.
“But the inspector seems to have retried the case and contradicted the conclusion of the magistrate in a court of law,” Mr Kear said. “To actually re-try the case and tell me that in his opinion the judge got it wrong was certainly not something I was expecting.
“I don’t believe that was his role.’’
He said he believed fair treatment was the hallmark of the courts, but that his treatment by ICAC and the inspector of that government agency had not been fair.
Legal Affairs Editor – The Australian
(WTF) used with permission