Rightly or wrongly, there is a perception within the community that recommendations and referrals from the Independent Commission Against Corruption (ICAC) investigations do not result in prosecutions.
This perception was not dispelled by statements made by Eddie Obeid Snr after the ICAC recommended that the Director of Public Prosecutions (DPP) advise on commencing proceedings against him. Mr Obeid stated, among other things, that he thought there was a one per cent chance that he would face prosecution, his"legal advice [was] that the DPP [would] not lay any charges" and that the ICAC had "become a political arena and nothing they provide in evidence is admissible. I am very confident that no court of law will take any of these inquiries and I challenge ICAC to convince the DPP to take up any of those inquiries".
In the Sydney Morning Herald today, NSW Attorney General Brad Hazzard described Mr Obeid's comments as a pivotal moment in the community's loss of confidence in the legal system.
Recently, the ICAC has released updated reporting documents tracking its briefs of evidence to the DPP and prosecution outcomes.
In ICAC prosecution briefs with the DPP, the ICAC reports that briefs of evidence have been provided from it to the DPP following reports from its investigations (reports dated from September 2013 to June 2014) including Operation Cavill (investigation into the conduct of certain City Ryde Councillors and others), Operation Acacia (investigation into the conduct of Ian Macdonald, John Maitland and others) and Operation Cyrus (investigation into the conduct of the Hon Edward Obeid MLC and others concerning Circular Quay Retail Lease Policy). The ICAC is waiting on the DPP's decision as to whether any proceedings will be commenced.
In ICAC prosecution outcomes, the ICAC lists 32 investigations (reports dated from February 2009 to September 2013) and indicates the status or outcome of those investigations. By way of summary:
- the 32 investigations involved referrals to the DPP in relation to 68 individuals. Of those:
-
- the DPP's decision is pending in relation to 2 individuals
- the DPP advised that no prosecution ought be commenced against 18 individuals
- the DPP commenced prosecutions against 18 individuals for offences such as giving false statements/evidence
- the DPP commenced prosecutions against 18 individuals for other offences under theCrimes Act (e.g. corruptly receiving a benefit)
- the DPP commenced 9 prosecutions against individuals on a combined basis and against a further 3 individuals in relation to the additional offence of misconduct in public office
- following 24 of the investigations the DPP commenced proceedings, including proceedings that resulted in a conviction, a dismissal or which are currently on foot
These reports go some way towards debunking the myth, but it is unlikely that community perception will change unless prosecutions are commenced in relation to the ICAC's more high profile investigations.
A Parliamentary inquiry into prosecutions arising from the ICAC's investigations is considering issues including whether gathering of admissible evidence for criminal offences should be one of the ICAC's functions, the effectiveness of the ICAC's and the DPP's processes and procedures and whether new offences should be created to capture corrupt conduct. Submissions for this inquiry were due by 1 August 2014, but no date has been announced as to when the inquiry is to report back.
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In the media
Kogarah local court gives way to "quick and
affordable justice"
Kogarah Courthouse will take on a new role after confirmation
local court sittings will end in the middle of next year. Regular
sittings of the state's new super tribunal, the NSW Civil and
Administrative Tribunal, will be held at the courthouse from
December 1. This body was established to consolidate the work of 22
former NSW tribunals (30 August 2014).
More...
Nathan Tinkler tells ICAC that $53,000 donation was for
Federal Liberal Party
Mining mogul Nathan Tinkler has told ICAC that a $53,000 donation
to the NSW Liberal Party was intended for the federal party, and
was organised by former Deputy Prime Minister Mark Vaile (29 August
2014).
More...
Another NSW Liberal MP Stands Aside Over ICAC
Allegations Of Illegal Donations
The Independent Commission Against Corruption's (ICAC)
investigation into illegal developer donations to candidates in the
2011 NSW state election has widened its scope to see if Nathan
Tinkler's development company, Buildev, paid Londonderry MP
Bart Bassett an $18,000 illegal donation (27 August 2014).
More...
The verdict is in: new jury system a winner -
NSW
A new $4.2 million online jury management system brings the jury
process into the 21st Century. It has been designed to speed up the
jury processing times at courts by providing airport style
electronic check-ins, on-the-spot excusals and eliminating the need
for jurors to carry paper summons. Jurors now have their own
personal online profile where they can update (21 August 2014).
The Verdict is in: new jury system is a winner
[PDF, 203kb]
Crown prosecutor appointed as a judge in
NSW
Attorney General announces the appointment of Crown Prosecutor
Julia Baly SC as a judge of the District Court of NSW (21 August
2014)
Crown Prosecutor appointed as a judge
[Accessible PDF, 121kb]
Committee ignores expert Oversight
recommendations
The Committee has made recommendations that the NSW
Ombudsman's and Police Integrity Commission's current
functions and powers to independently investigate police misconduct
in relation to critical incidents and monitor police critical
incident investigations, should remain unchanged (19 August 2014).
More...
In practice and courts
ICAC: Prosecution briefs with the DPP and
outcomes
The tables on this page each provide information on prosecution
briefs that are currently with the Director of Public Prosecutions
(DPP), and the outcomes of DPP advice and prosecutions in relation
to ICAC investigations over the past five years.
Last updated 26 August 2014 for:
ICAC prosecution briefs with the DPP (113.8 kB) and
ICAC prosecution outcomes (196.35 kB)
ICAC: Operation Spicer public inquiry witness list -
week beginning 1 September 2014
Operation Spicer public inquiry witness list - week beginning 1
September 2014. Please note that this list is subject to change.
More...
IPC NSW: Right to Know Week 2014
28 September 2014 to 5 October 2014
Right to Know Day is an annual event with the aim to increase
awareness of individuals' right of access to government
information and open, transparent governance.
View more about this event »
Updated NCAT Form and Guidelines - Internal
Appeals
The NSW Civil and Administrative Tribunal (NCAT) has updated its
Notice of Appeal form and the accompanying
NCAT Guideline 1: Internal Appeals (the Updated Guideline)
(both dated August 2014). According to NCAT, the Updated Guideline
includes an "appeal process diagram to illustrate how internal
appeals are managed at
NCAT" NCAT's media release (28 August 2014).
NCAT Fact Sheet - Provision of Registry Information and
Assistance
NCAT has made available a
Fact Sheet - How we can and cannot assist (August 2014), which
"explains what information and assistance NCAT Registry staff
can and cannot provide". In particular, the fact sheet notes
that NCAT Registry staff "are unable to provide legal advice
or to assist one party in a way that would give them an advantage
over another party"
NCAT's media release (27 August 2014)
Published - Article, Papers, Reports
Youth justice orders and supervision periods:
2012-13
Australian Institute of Health and Welfare
Summarises information on the number of supervised orders
administered by state and territory youth justice agencies, and the
periods of supervision experienced by young people in 2012-13 (26
August 2014)
Youth justice orders and supervision periods: 2012-13
NCAT Legal BulletinNo 3 2014
NCAT has released the
Legal Bulletin - Issue 3 of 2014 (August 2014), which provides
summaries of relevant and interesting case law from across the
various state jurisdictions, as well as a selection of recent NCAT
Appeal Panel decisions
Further information from NCAT
Cases
RACQ Insurance Ltd v Motor Accidents Authority of NSW
(No 2) [2014] NSWSC 1126
ADMINISTRATIVE LAW - judicial review - jurisdictional error -
judicial review of a claims assessor's assessment under the
Motor Accidents Compensation Act 1999 - whether the claims assessor
misconstrued the evidence - whether error of law - whether adequate
reasons given - whether award of damages manifestly unreasonable More...
Ibrahim v State Parole Authority of NSW [2014] NSWSC
1158
ADMINISTRATIVE LAW - judicial review - decision of State Parole
Authority - plaintiff not provided with summary of document
withheld pursuant to s 194 of the Crimes (Administration of
Sentences) Act 1999 at parole hearing - defendants concede that
plaintiff was denied procedural fairness at parole hearing More...
Legislation
New South Wakes
Regulations and other miscellaneous instruments
Children's Court Regulation 2014 (2014-547) —
published LW 22 August 2014
The object of this Regulation to is remake, with minor amendments
the provisions of the Children's Court Regulation 2009, which
is repealed on 1 September 2014. This Regulation makes provision
with respect to an appeal under certain Acts in relation to a
decision of the Children's Court, is if the decision concerned
is made by the President of that court, to be an appeal to the
Supreme Court instead of to the District Court and makes provisions
in respect of savings and formal matters.
Crimes (Administration of Sentences) Regulation 2014 (2014-550)
— published LW 22 August 2014
The object of this Regulation is to remake, with minor
modifications, the Crimes (Administration of Sentences) Regulation
2008.
Gaming and Liquor Administration Amendment (Application Fee for
Review of Decision) Regulation 2014 (2014-525) —
published LW 22 August 2014
The object of this Regulation is to amend the Gaming and Liquor
Administration Regulation 2008 to increase (from $250 to $500) the
fee for making an application to the Independent Liquor and Gaming
Authority for a review of a reviewable decision made by the
Secretary of the Department of Trade and Investment, Regional
Infrastructure and Services.
Independent Commission Against Corruption Amendment (Ministerial
Code of Conduct) Regulation 2014 (2014-546) — published
LW 21 August 2014
The object of this Regulation is to prescribe an applicable code
of conduct for NSW Ministers for the purposes of section 9 of the
Independent Commission Against Corruption Act 1988
Justices of the Peace Regulation 2014 (2014-527) —
published LW 22 August 2014
The Regulation prescribes: the criteria for the appointment of
persons as justices of the peace; that the oath of office is to be
taken not later than four months after the date of appointment, the
code of conduct for justices of the peace, additional circumstances
to the governing Act under which a justice of the peace may be
removed from office
Photo Card Amendment (Register) Regulation 2014 (2014-533)
— published LW 22 August 2014
The object of this Regulation is to provide that information of a
personal nature that is contained in the Photo Card Register may be
released despite a provision of the Photo Card Act 2005 that
provides for the security of such information if the information
could otherwise be released under the privacy legislation and to
provide that any information contained in the Photo Card Register
may be released to Austroads for the purposes of the National
Exchange of Vehicle and Driver Information System.
Photo Card Regulation 2014 (2014-532) — published LW 22
August 2014
The object of this Regulation is to remake, with minor changes,
the Photo Card Regulation 2005 including prescribing the fee for
the issue of a Photo Card, prescribing the grounds for exemption
from and waiver of, payment of the fee and to require the holder of
a Photo Card to notify the Authority if the holder changes his or
her name or address, and makes it an offence for the holder to fail
to do so.
Privacy and Personal Information Protection Regulation 2014 (2014-549) — published LW 22 August 2014 The object of this Regulation is to remake, with some changes, the Privacy and Personal Information Protection Regulation 2005. Some of the changes include prescribing the Inspector of Custodial Services as an investigative agency that is exempt from the need to comply with certain requirements of the Privacy and Personal Information Protection Act 1998 and providing that certain information contained in archives or held by a library, art gallery, museum or the State Records Authority is not personal information for the purposes of the Privacy and Personal Information Protection Act 1998.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.