What happened to Andrew Cornwell is so troubling it deserves to be taught in law schools as an example of how fragile human rights can be when subjected to attack by powerful institutions.
The threat is particularly acute in NSW, where the University of Sydney wants its own Star Chamber for sexual assault cases, and where state parliament has given statutory instructions for its anti-corruption commission to demolish certain fundamental rights that are sacrosanct elsewhere.
When the abuses inflicted on Cornwell are considered in context, the best motto for this unfortunate state should be: “NSW — Australia’s hell hole for human rights”.
Cornwell is a veterinarian who had served as the Liberal member of the NSW parliament for the Newcastle seat of Charlestown. That was until 2014, when he made the mistake of volunteering to provide information to the Independent Commission Against Corruption.
That information, which was previously unknown to ICAC, was provided after Cornwell and his solicitor, Robert Mangioni, obtained signed agreements in July and August, 2014, in which Cornwell would provide information and ICAC would not use it against him.
Mangioni had good reasons for believing the deal would stick. The first was that Cornwell’s information concerned electoral funding matters and the limitation period for prosecutions had already expired.
The second reason was the deal was supported by two documents: the first was signed by Geoffrey Watson SC, who at the time was ICAC’s counsel assisting, after a meeting with Mangioni and Cornwell on July 23, 2014.
It says: “I undertake to seek an order from the Independent Commission Against Corruption with the effect that nothing said to me today and no document produced to me today will be used against Andrew Cornwell.’’
The second document was signed soon after, on August 1, by Megan Latham, who at the time was ICAC commissioner. It starts like this: “The commission will honour the undertaking …’’
The deal with Watson had been negotiated in his Phillip Street chambers in Sydney’s legal district.
After Cornwell handed over a signed statement with the new information, and Watson handed over his signed undertaking, ICAC’s counsel assisting produced a bottle of wine and five glasses for those who were present: Watson, Mangioni, Cornwell, ICAC junior counsel assisting Greg O’Mahoney and ICAC solicitor Don McKenzie.
Watson opened a second bottle and they kept drinking for an hour, according to contemporary notes kept by Mangioni.
At the time, things looked good for Cornwell. Mangioni’s notes of the meeting quote Watson as saying words to the following effect: “We’ve reviewed your statement. It contains information which will be of significant assistance to ICAC … I will promote you as one of the heroes … I will present you as a white hat”.
A statement based on Mangioni’s notes was later produced as evidence in an unrelated civil case and went unchallenged by counsel for Watson and ICAC.
Cornwell was so confident after the meeting he had no reservations about telling former premier Mike Baird all about the deal and the drinks that had followed.
Baird had summoned Cornwell to a meeting on August 6, attended by the premier’s advisers, after noticing Cornwell’s name on a list of witnesses for ICAC’s inquiry known as Operation Spicer.
On the same day, Watson praised Cornwell at Spicer’s public hearings.
He had been “helpful” and was “outstanding”.
Things started to unravel six days later, on August 12.
That was when Andrew Clennell, who was then covering state politics for The Daily Telegraph, wrote about the drinks party after Watson confirmed what Clennell, who now works for The Australian, had heard around parliament.
If Watson and ICAC were not acutely embarrassed, they deserved to be. Getting on the turps with a witness is not a good look.
Six days later, on August 18, ICAC sent Cornwell a summons to give more evidence. On August 21, when he gave evidence for the second time, things were very different.
The man who had been described on August 6 as “helpful” and “outstanding” was accused of taking bribes and attempting to mislead ICAC. Cornwell resigned from parliament before the month was out. His political career was over.
ICAC had walked away from the deal it made with Cornwell, accused him of misleading the commission over the information he had provided and asked the NSW DPP to consider charging him with perjury.
So was this justified?
On August 7, 2015, when Latham appeared before parliament’s ICAC oversight committee, she was asked if it was common practice to provide “letters of comfort” for witnesses.
She said she was aware of only one such letter and went on to say that any undertaking by ICAC was premised upon the witness giving a complete and truthful account.
“So if the person who receives the benefit of the undertaking does not give a full, complete and truthful account, the undertaking is worth nothing,” Latham told the oversight committee.
The written documents provided by Watson and Latham contain no such qualification. But, for the sake of the argument, let’s assume Latham’s qualification was an implied term.
Last month, on October 23, ICAC’s argument that Cornwell had perjured himself collapsed. That was when the DPP told ICAC there was insufficient evidence to prosecute Cornwell for perjury.
The commission says it accepts that advice.
So if the law of NSW says Cornwell is innocent and ICAC accepts that he cannot be prosecuted for perjury, where does that leave Latham’s implied term? And what does this say about the fortitude of Cornwell’s erstwhile colleagues in the parliamentary Liberal Party?
More importantly, where does this leave future whistleblowers who might have been willing to tip off ICAC in return some sort of deal?
Normally, that would be the end of the story: An innocent man has lost his political career, the Liberal Party has been made to look gutless and whistleblowers have been given another reason to stay silent.
But there is more to this story. Tucked away on page 15 of the annual report of ICAC inspector Bruce McClintock SC is this innocuous looking paragraph towards the bottom of the page: “ … I have since commenced an audit, pursuant to s57B (1)(a) and (d) of the ICAC Act into the manner in which the Commission deals with, instructs and controls counsel assisting. “I will report on the outcomes of that audit in next year’s annual report.”
I have it on good authority that McClintock’s audit will cover the deal that was struck in Watson’s chambers on July 23, 2014.
His findings will come five full years after that drinks party and the embarrassing report in The Telegraph.
Legal Affairs Editor – The Australian
(WTF) used with permission