This month marks an anniversary, of sorts, for former NSW sports minister John Sidoti. It’s no cause for celebration. Instead, it highlights the appalling delays afflicting that state’s criminal justice system.
Those delays are the direct result of the inconsistent rules and procedures used by the courts and that state’s Independent Commission Against Corruption.
The task of preparing a brief of admissible evidence against those who have been investigated by ICAC is like trying to move rail freight between jurisdictions that use different rail gauges.
It can be done. But only if the community is prepared to accept that time and taxpayers’ money are of no consequence and there is no public interest in having those accused of criminal wrongdoing brought before a court promptly.
The current arrangement serves nobody’s interest. Those publicly accused of criminal conduct are forced to wait years before those accusations are resolved.
Consider the Sidoti case.
May 31 will mark a full year since the NSW Director of Public Prosecutions was provided with a brief of evidence and asked for advice on whether this former minister should be charged with misconduct in public office.
ICAC handed that brief to the DPP one year and ten months after Sidoti was declared corrupt in July, 2022, and four years and eight months after the commission received a letter containing allegations about his conduct.
That letter had been sent to the commission on September 12, 2019, by Jodi McKay who was then leader of the Labor Opposition and is no longer in state parliament.
So five years and eight months later, there is still no sign of whether the accusations against Sidoti will ever find their way to the only forum that can make a conclusive finding about whether criminal conduct has taken place.
The real scandal is that delays of this magnitude are not uncommon. Consider what happened to Chris Hartcher, another former minister.
He featured in one of the commission’s most sensational public hearings known as Operation Spicer which began in April, 2014. It involved 116 witnesses and generated 5092 pages of transcript and plenty of headlines.
The Spicer report was published in August, 2016 and says consideration should be given to obtaining advice from the DPP on whether Hartcher should be prosecuted for criminal offences.
It was not until six years and three months later that the DPP finally got around to informing ICAC that Hartcher should not be prosecuted for anything.
In a letter dated November 15, 2022, the DPP informed the commission there was insuffficent evidence to prosecute Hartcher for one offence suggested by ICAC, while another offence was simply not available.
This is the result of parliament’s decision allowing ICAC to make findings based on information that would never be admissible in court.
This would present few problems if ICAC were a discrete system, dealing only with those matters that would never result in criminal prosecutions.
But that is not how the ICAC system works.
The real blame rests with parliament which has empowered the commission to declare people corrupt if it believes their conduct “could” constitute a criminal offence.
But parliament has also required the commission to inform itself using coercion. It is not bound by the rules of evidence that are used in court and can inform itself “in such manner as it considers appropriate”.
This helps explain why the task of producing a brief of admissible evidence sometimes takes more time than the task of conducting an ICAC investigation, holding a public hearing and producing a report.
Consider what happened during the ICAC inquiry known as Operation Gerda.
The process of producing a brief of evidence for the DPP took four years and five months from the time the commission produced a report on its investigation in May, 2020.
The brief was delivered to the DPP in October last year.
Compare that to the ICAC investigation itself. The commission learned of the allegations of wrongdoing in March, 2017, and its inquiry ran for three years and two months.
So that means the brief of evidence about potential criminal conduct finally hit the desk of the prosecutors seven years and seven months after the commission was informed of wrongdoing.
These cases raise serious issues: Is the community prepared to tolerate a system that results in this sort of delay to criminal justice? Or would NSW be better served by requiring all suspected criminals – including those investigated by ICAC – to be brought before the courts as soon as possible?
Forcing the innocent to wait years while ICAC struggles to assemble admissible evidence from a mass of coerced material is just as regrettable as delaying justice for the guilty.
The remedy does not involve throwing money at ICAC. The way forward is to wind back the inconsistencies between the commission and the justice system in order to promote efficiency.
A first step would be to change the commission’s priorities by requiring it to adopt the approach of the Coroner’s Court which suspends an inquiry once it is clear that an indictable offence may have been committed.
At that point, the commission should be required to ensure the matter reaches the justice system as soon as possible – regardless of whether that means truncating its own coercive procedures and abandoning plans for a public hearing.
Such a change would not affect its ability to examine matters that fall short of criminal conduct. But when dealing with allegations of the most serious kind, the interests of justice should take priority.
