What’s wrong with this picture? Beau Lamarre-Condon is a former NSW policeman facing two charges of domestic violence murder which are alleged to have taken place in February.
During the week a Sydney magistrate was told that most of the prosecution’s brief of evidence has now been provided to the defence lawyers.
So it took a maximum of eight months from the time of the alleged murders for a brief of evidence to be prepared and for most of that brief to be provided to the defence.
If it is possible to produce a brief of evidence in eight months on the most serious criminal matter, why does the NSW government tolerate delays of more than seven years by the Independent Commission Against Corruption in producing briefs on less serious matters?
No government would accept a delay of seven years in the case against Lamarre-Condon for the simple reason that justice delayed is justice denied. Prompt vindication for the innocent is just as important as prompt punishment for the guilty.
But ICAC, which has a record of pursuing members of parliament, is somehow allowed to get away with a leisurely pace of work that politicians would never permit from police.
We can only speculate about why the NSW parliament has declined to do anything about these delays to criminal justice that are directly attributable to ICAC.
The latest delays have only just been disclosed in data outlining the dates on which ICAC sent briefs of evidence to the DPP on people who had been investigated by the commission.
The full picture only becomes clear when that data is compared to the timelines of key events for each investigation which are outlined in separate reports.
When all that information is compared to the data in the commission’s annual report the overall picture that emerges is screaming out for statutory intervention.
This is an organisation that is focused on its own internal key performance indicators when the real issue is whether that internal focus should be allowed to impede the efficient operation of criminal justice.
In one of those investigations, Operation Skyline, seven years and six months elapsed from the time ICAC first learned of allegations of wrongdoing on April 28, 2017, to when it provided a brief of evidence to the Director of Public Prosecutions on October 25 this year.
The formal Skyline investigation was completed in October, 2022, when the commission published a report on its findings.
It then took another two years before a brief of evidence was sent to the DPP last month. That brief concerns transactions that are alleged to have taken place as far back as late 2014.
The delay in producing a brief of evidence from the Skyline investigation risks causing problems if witnesses are ever asked in court to testify about events that happened ten years ago.
But here’s the rub: a delay of seven-and-a-half years in producing a brief of evidence is by no means the worst aspect of this affair.
Consider what happened in Operation Gerda. ICAC learned of allegations of wrongdoing when it received a letter on March 27, 2017.
It produced a report three years and two months later in May, 2020.
And the brief of evidence? Another four years and five months then elapsed before a brief was sent to the DPP last week on October 29 – which was seven years and seven months after ICAC was informed of the wrongdoing.
The process of producing the brief of evidence from the Gerda investigation took 19 months longer than the entire two years and 10 months of the investigation itself.
Without that evidence, the independent prosecutors were hamstrung, making a mockery of the imperative to bring those accused of wrongdoing before the courts promptly.
In December last year when ICAC chief commissioner John Hatzistergos appeared before parliament’s ICAC oversight committee he made the point that the commission tried to produce briefs of evidence as soon as possible.
The real problem is that Hatzistergos is working within a statutory structure in which the goal of bringing wrongdoers before the courts is, for practical purposes, subservient to ICAC’s internal goals of conducting investigations and producing reports.
The complicating factor is that the commission is not bound by the rules of evidence. It can obtain information under compulsion which means that information, while useful for ICAC, is not admissible in court.
The question that needs to be confronted in NSW is whether delays of more than seven years to the criminal justice system are worth all the hoopla associated with ICAC’s public hearings and reports.
This commission does not come cheap for taxpayers. It total revenue for the year to June 30 was $40.9 million, up from $30.9 million the year before.
And on the subject of money, its annual report shows Hatzistergos, the chief executive, is paid $796,128 – which is 160 per cent of the remuneration of a judge of the NSW Supreme Court.
In May last year ICAC and the NSW DPP, Sally Dowling, SC, endorsed a new memorandum of understanding.
According to Dowling’s last annual report: “This significantly streamlines the process of referrals to the ODPP from the ICAC for advice on whether a prosecution should be commenced, and allows for the ICAC to seek preliminary advice to assist in their brief preparation and the collation of evidence.”
The next time Dowling and Hatzistergos appear before parliament somebody might care to ask how that new streamlined system is working out. Are there more seven-year delays in the pipeline?
