When Charles Dickens wrote Bleak House, he invented a court case that dragged on for generations, consuming money and providing nothing of value except work for lawyers.
Jarndyce v Jarndyce was a parable with a compelling message: justice delayed is justice denied.
It’s a message that still resonates because it draws on one of the great principles of Magna Carta: “To no one will we . . . deny or delay right or justice.”
So who was to blame for the delays in Jarndyce v Jarndyce?
It would be easy, but wrong, to blame the lawyers who were caught up in the system. The real lesson is that governments have a responsibility to reform a system that delivers waste and injustice.
In Dickensian England governments looked away when the flaws in the justice system were apparent.
Keep that in mind when considering the inherent delays to criminal justice in NSW once accusations of criminality are diverted from the justice system and sent instead to the Independent Commission Against Corruption.
ICAC is not a court. It cannot find people guilty and cannot punish wrongdoing. It is not bound by the rules of evidence and is free to make findings based on material that would never make it to first base in the justice system.
So imagine the difficulty this inconsistency imposes on ICAC’s lawyers when they attempt to draw up a brief of evidence so the Director of Public Prosecutions can decide if anyone should be prosecuted.
This might help explain the latest example of the delays to criminal justice associated with ICAC.
On Monday, the commission updated its list of prosecution briefs that have been sent to the DPP.
It shows the DPP is still unable to work out whether anyone should be prosecuted over an ICAC investigation that concluded with a report published in September, 2018 – that’s seven years ago next month.
That investigation, known as Operation Tarlo, concerned events that are alleged to have taken place as far back as 2007 – that’s eighteen years ago.
The woman at the centre of the Tarlo report is Eman Sharobeem – who was born in Egypt and was once a finalist for Australian of the Year.
In 2018, when ICAC issued the Tarlo report, it said advice should be obtained from the DPP on whether Sharobeem should be prosecuted for six criminal offences including misconduct in public office, fraud and obtaining a benefit by deception.
That brief was finally presented to the DPP in November, 2019 – fourteen months after ICAC had published the Tarlo report and almost four years after the commission learned of the allegations against Sharobeem in December, 2015.
That’s when things appear to have unravelled.
After leaving that brief of evidence with the DPP for two years and five months, ICAC decided in April, 2022, to withdraw it and begin work on a replacement.
One year and three months went by before the commission provided a revised brief in July, 2023, on just one matter.
Another two months went by before the commission sent five more briefs about Sharobeem to the DPP between September and December of 2023.
To put this into perspective, the Tarlo report shows the commission learned of the allegation against Sharobeem in December, 2015 – almost nine years ago. It started a preliminary investigation in February, 2016.
In December, 2023 – eight years after receiving the original tip off – ICAC provided its final brief on this matter to the DPP.
ICAC’s own investigation, when measured from the start of the preliminary investigation to the publication of the Tarlo report – took two years and seven months.
The process of transforming ICAC’s information into a brief that would be admissible in court was not completed until four years and nine months later.
The details made available by ICAC on Monday show that twenty months have now elapsed since the DPP received the last of ICAC’s six replacement briefs on Sharobeem.
And the independent prosecutors at the DPP’s office are still trying to work out whether ICAC has actually assembled enough admissible evidence for a prosecution.
The longer the delay in dealing with this matter the greater the prospect that witnesses will have difficulty recalling transactions that, according to ICAC, took place up to eighteen years ago.
So who is to blame?
It would be unfair to blame ICAC boss John Hatzistergos. He only took office as chief commissioner in August, 2022 – four months after someone realised the original brief against Sharobeem needed to be withdrawn and reworked.
Hatzistergos has also made changes. In ICAC’s annual report for 2023-24 he noted: “We now have staff dedicated to preparing briefs rather than relying on the investigators putting aside time from their other duties.”
That’s a necessary reform but Monday’s data from ICAC indicates significant delays are still a hallmark of the briefs that go to the DPP.
In November, 2023, the commission produced a report on Canada Bay Council after an investigation that started six years earlier in October, 2017.
Briefs were only sent to the DPP last week.
The real cause of the difficulty in producing timely briefs seems to be the inconsistency between the rules used by ICAC and the requirements of the courts.
Responsibility for that does not rest with ICAC. This problem has its source in the ICAC Act’s requirement for the commission to conduct inquiries using methods that are not acceptable in the courts.
This is not Bleak House. Parliament can no longer avert its eyes while criminal justice suffers.
