The Inspector looking into the operations of the Independent Commission Against Corruption in New South Wales ( ICAC ) has handed down his report and he recommends that future hearings be closed to the public and the media. David Levine is concerned that the media hoopla that goes with public hearings has the capacity to tarnish the reputations of those unjustly accused - and justice can be equally served by handing the findings of the enquiry to prosecutors when the facts have been determined at the end of the inquisition.
It is clear that ICAC has operated well outside its charter and used its powers in ways that were not intended. The spark that finally lit the fuse was the Margaret Cunneen case. Improbably ICAC suggested that this senior Crown prosecutor was guilty of subverting the course of justice when her son's girlfriend was involved in a minor car accident. Cunneen is accused of advising this girl to plead chest pains so that she would be taken to hospital instead of having a breath test administered roadside. All who are brought to a hospital emergency department receive an automatic blood test which records blood/alcohol levels. Such was the process in this case and the result cleared the driver of any impairment.
What became clear was the intent of ICAC to gain a conviction by relentlessly pursuing the matter. Mobile phones were seized in questionable circumstances and the reputation of one of this state's most successful prosecutors was torn to shreds. Margaret Cunneen took the matter to this country's highest court - and was exhonorated. She risked her job, future and bankruptcy to have ICAC's findings set aside - and yet this supposed crime fighting body refused to back off.
It is a question of allowing power to rest in the hands of those who may seek to advance hearings as personal vendettas - and the tendency of ICAC to play to the media by sensational enquiry tactics. Another of Levine's findings was that witnesses should have advance notice of questions that will be asked "except in"exceptional circumstances." It seems that ICAC revels in "ambush "tactics - often involving matter not directly related to the enquiry.
These findings will not get universal approval. Some may feel that open enquiries drag wrongdoers into the spotlight and that closed sessions will be used as a "cover up ". Justice is a two edged sword ! The tactics used by ICAC hint of the tactics of long past centuries when an accused was publicly imprisoned in what were called "the stocks "to be publicly shamed. Their head and hands were secured in a framework in the public square and villagers were free to pelt them with eggs and rotten vegetables. Being put on the witness stand during an ICAC enquiry seems to be a similar experience.
One of the tenets of justice that we drew from the British court system that arrived with the first fleet was the maxim that "It was better that a hundred guilty men go free than one innocent man serve time in a prison ". The benefit of the doubt should always be of benefit to the accused. In a public hearing the power of innuendo and malice can be unleashed on the defenceless.
Perhaps ICAC is failing to understand the purpose for which it was formed. It is an enquiry body to determine if a law has been broken - and to pass such a finding on to a judge and jury to decide guilt.
Courts are open to the public and the media and their deliberations are scrutinised in the public realm.
As the Margaret Cunneen case clearly showed. ICAC has usurped the role of the courts and set itself up as judge, jury - and executioner !
No comments:
Post a Comment