Ian Macdonald and Obeid convictions vindicate legal system, not ICAC

Chris Merritt                 22 July 2021

Published in the Australian Newspaper

This week’s conviction of former NSW ministers Ian Macdonald and Eddie Obeid, along with Obeid’s son Moses, is a major achievement.

It shows that the justice system can provide a fair trial for public figures despite immense prejudicial publicity.

But that achievement has also highlighted institutional flaws that caused ludicrous delays in bringing these men to justice.

Instead of giving priority to the prompt enforcement of the law, the case against the Obeids and Macdonald was subjected to a fractured system in which delays were inevitable. Different institutions applied different rules.

The conduct that gave rise to this week’s convictions took place up to 14 years ago and was reported to authorities more than a decade ago.

A large part of the responsibility for this delay must rest with the NSW Independent Commission Against Corruption. One of its own reports shows it received a tip-off in February, 2011, and only produced a report on the Obeids and Macdonald two years and five months later in July, 2013.

The Office of the NSW Director of Public Prosecutions also had a role. Despite having a public sector prosecutions unit to handle ICAC’s matters, the first indictment against the Obeids and Macdonald was only produced in July, 2017 – four years after ICAC’s report.

And even then, the indictment needed a slight revision during pre-trial hearings in April, 2019. It was not until February 10 last year that the trial started – nine years after the original tip-off to ICAC.

The problem is structural: ICAC is not part of the justice system. It is not bound by the rules of evidence and while its cheer squad say it has “teeth”, the reality is that information it collects through coercion cannot be used in subsequent criminal proceedings.

So when ICAC refers matters to the DPP, it is handing over to an organisation that, unlike ICAC, is part of the justice system and prepares prosecutions based on the rules of evidence.

Before this case could go to court, the DPP’s lawyers effectively needed to start again – checking everything to ensure it was properly obtained and weeding out material that falls short of the normal standards of the courts.

Some have described this week’s convictions as a triumph for ICAC. A letter to the editor of this newspaper even said it had strengthened the case for a federal ICAC. Neither is true.

The only triumph is that of Justice Elizabeth Fullerton. She used all the tools at her disposal in a determined effort to ensure Macdonald and the Obeids received a fair trial.

She was worried about the prejudicial impact on potential jurors of the massive adverse publicity that was clearly related to accusations at an ICAC public hearing and the equally sensational media coverage.

In September, 2019, Fullerton was still intent on having this matter dealt with in the normal manner – by a jury. So she issued a temporary stay order because of what she said was “an unacceptable risk that the right of each of the accused to a fair trial would be prejudiced because of the intensity, proximity and nature of the pre-trial publicity where the accused are referred to in adverse terms”.

In December, 2019, the frenzy had not subsided and had even gained impetus because of a separate ICAC inquiry. Fullerton reluctantly ordered a judge-alone trial.

“The notoriety of the accused Edward Obeid and Mr Macdonald, and the opprobrium with which their affairs continue to be reported upon in the media (largely, it would seem, triggered by the recent [unrelated] ICAC inquiries which are current and continuing) is productive of what I consider to be a very real risk of a prospective juror being actually infected by the media coverage to date, or an equally real risk that further coverage of matters of public importance where the accused are named, or their conduct referenced, will result in the trial being aborted after it commences,” Fullerton’s judgment says.

This judge felt duty-bound to delay the case and then preside without a jury in order to protect the right to a fair trial. She was right to do so. The public prejudice generated by ICAC was real, long-lasting and threatened this trial.

This gives rise to two issues: is it responsible for the NSW parliament to allow ICAC to intentionally generate community prejudice that has an impact on potential jurors when it is foreseeable that the people concerned are likely to face jury trials? A journalist who did that would face contempt proceedings.

And why should judges be required to change or delay court processes to accommodate ICAC’s desire for publicity? Real trials are more important than show trials.

We are yet to learn whether Macdonald and the Obeids will appeal. As recent cases have shown, public damnation of those convicted of serious offences is best reserved until the entire legal process is concluded.

But some things are already clear: if the Morrison government proceeds with a federal ICAC it should be an integrated and orthodox part of the justice system that adheres to the same rules. Based on this case, the alternative is inconsistency, investigations that run for years and more threats to the right to a fair trial.

The NSW system should be avoided. In that state, coercion, publicity, prejudice and show trials are more important to some policymakers than the community’s expectation that wrongdoers like the Obeids and Macdonald will be brought before a court and dealt with promptly.

Delays of this magnitude are bad enough when they affect the guilty. But what if they were to affect the innocent?