Bleak pace of ICAC justice
Chris Merritt 21 January 2021
Published in the Australian Newspaper
In Bleak House, Charles Dickens had to invent the marathon case of Jarndyce v Jarndyce in order to poke fun at slow justice. In contemporary NSW, there is no need for such fiction. Reality is bad enough.
Dickens, unlike some in NSW, was aware that justice delayed is justice denied — and that applies to the innocent and the guilty.
As outlined in this space last week, businessman Richard Poole had to wait almost seven years to learn he would not be prosecuted after being declared corrupt in 2013 by the state’s Independent Commission Against Corruption.
For most of that time, a brief of evidence had been with the Office of the Director of Public Prosecutions waiting for a team of lawyers to decide what advice they should provide to ICAC about Poole’s conduct.
As things turned out, they found insufficient evidence to justify a prosecution. But what sort of system keeps an innocent man on the hook for almost seven years?
During the week, the DPP declined to outline factors that might explain the delay: “Requests of the ODPP from any agency for legal advice are privileged. The office declines to comment.”
That sort of approach might be fine when fending off troublemaking columnists. But by declining to provide even the flimsiest of explanations, the ODPP has guaranteed this issue will not go away.
The DPP, Lloyd Babb SC, makes occasional appearances before the committee of state parliament that oversees ICAC. That committee might be interested in exploring this issue, particularly since the delay in Poole’s case is not an aberration.
Babb’s prosecutors have still not decided what to do about ICAC’s brief of evidence on former politicians Chris Hartcher and Joe Tripodi, who were the subject of adverse reports by the commission in August 2016.
The DPP received ICAC’s brief of evidence six months later, in February 2017. Next month will mark a four-year delay in what is the most preliminary stage of the justice system.
The delay is even longer with the case of Darren Bullock, a Mine Subsidence Board district manager. ICAC decided in March 2016 that the opinion of the DPP should be obtained on whether he should face criminal prosecution.
The brief was sent to the DPP five months later, in August 2016. And that is where it remains — almost five years after ICAC’s accusations were made public and 4½ years after the brief arrived.
Leslie Reynolds, a former project officer at the state Department of Justice, is the subject of an ICAC brief of evidence that arrived at the DPP in August 2017 — 3½ years ago.
Based on the scale of these delays — and the DPP’s refusal to provide an explanation — it might appear that the blame rests with prosecutors who have simply been unable to decide what to do. But there could be another explanation — one that involves the decision to establish ICAC as a parallel system of justice with separate rules and standards.
A former prosecutor has pointed to a structural flaw that makes it difficult to reach a quick decision on whether matters should be thrown out or brought to trial after ICAC has been involved.
He believes the delay in the Poole case might have something to do with the fact that the justice system uses rules of evidence to ensure its procedures are fair. Those rules are not used by the investigators at ICAC.
When ICAC’s “evidence” reaches the DPP, everything needs to be re-examined to weed out material that would be inadmissable in court.
Every document has to be re-read, transcripts checked for every tapped telephone call, phone logs verified and anything obtained by coercion set to one side. All that takes time. That might explain at least part of the delay, but it is little comfort to Poole. Although innocent, he is prevented by an act of parliament from obtaining a declaration from the Court of Appeal that the original corruption finding against him was invalid.
Along with fellow directors of Cascade Coal, Poole had extracted that concession from ICAC and had won a draft declaration from the court when their legal rights were extinguished by retrospective legislation that validates ICAC’s invalid actions.
Parliament was never told that proceedings in the Court of Appeal that were close to finalisation would be extinguished by the Validation Act.
As well as Poole, those backing that legal action were Cascade chairman John McGuigan, John Atkinson and Travers Duncan. ICAC had conceded that the findings against all of them were invalid.
“I voted for that Validation legislation and I have no regrets about it,” says Labor’s Adam Searle, who is a member of parliament’s ICAC oversight committee.
“But I am profoundly concerned that the government failed to tell the parliament about the existence of this matter and there are ramifications of that,” Searle adds.
“That might not have changed the parliament’s mind, although it might have, but there would have at least been an upfront discussion about extinguishing people’s legal rights.
“My own feeling is that people in that category are right to feel aggrieved. To all intents and purposes this matter had been settled. This is a very shabby episode and requires closer examination.”
The oversight committee, which is conducting an inquiry into the reputational impact of being adversely named by ICAC, has been asked by the Rule of Law Institute to consider a range of possible remedies as part of an exoneration protocol.
While Searle supports the Validation Act, he believes those in the same category as Poole and McGuigan “need to be considered”.