Nicholas Cowdery, AM, QC, muses on Dostoevsky, ICAC and the serving up of a tasty cold dish called revenge.
When I was still at university, I acted in a production of a dramatised version of Dostoevsky’s Crime and Punishment. I played the part of Porfiry Petrovich, the policeman who (maybe) persuades Raskolnikov, an impoverished student, to confess to the murder of a pawnbroker and her half-sister. Petrovich plays psychological games with his quarry, who was playing a psychological game with himself when he committed the murders, to see if some people could do such things for high motives (he intended to steal his victim’s money to spend it on the needy – a sort of Robin Hood of St Petersburg on a small scale).
The July report from the NSW Independent Commission Against Corruption (ICAC) about corruption at high levels in the former State Government reminded me of the story, but, obviously, with some differences.
ICAC’s quarry – former Ministers of Government and present captains of industry (and not impoverished students) – had clearly sought to bring benefit to themselves at the expense of others, with no thought of being ‘Robin Hoods’. And the Commissioner and Counsel Assisting certainly played psychological games with them in the course of public hearings that were every bit as enthralling as Crime and Punishment on stage and deserving of a theatrical rendition.
Who can forget: Q. (from witness) ‘I suppose you are going to play something?’
- (from Counsel assisting) ‘You betcha!’
- But there have been no confessions.
Quite the contrary. The reaction in public has been defiant denial, with one former Minister stating, ‘We’ve done nothing wrong.’
The reaction of the public has been (not surprisingly) the desire for revenge. When people feel wronged this is often the first response and is entirely human. People are already anticipating prison sentences for those involved – the longer the better – and the forfeiture of large assets.
And they want it now!
But it is necessary to coolly examine just where we are. ICAC has the roles of investigating, exposing, preventing and educating the community about corruption. By the processes adopted in this inquiry (actually a series of inquiries) it has certainly done most of that. However, we cannot really assess its preventative effect as the capacity for human greed seems to be limitless. ICAC has done its job – and extremely well – by giving us a story of events built up from the materials its investigations uncovered. Its processes have concluded and it has now passed matters over to a range of agencies: the State and Commonwealth Directors of Public Prosecutions (DPPs), the State Crime Commission, Australian Taxation Office (ATO) and the Australian Securities and Investment Commission (ASIC).
Now, new processes begin. And they begin on new foundations – on limited parts of the materials available to ICAC and perhaps new materials following further investigations that will tell slightly different stories as to which courts and other bodies will act in accordance with the laws that apply to them. The aims of these agencies are different and they operate according to different rules. These are not just extensions of the ICAC process.
So far as criminal prosecutions are concerned, DPPs making decisions about whom to charge, and with what, will be greatly assisted by the ICAC materials and analysis, of course. They will, however, be restricted to acting only on evidence that satisfies the legal tests of admissibility in criminal proceedings. Evidence given by witnesses at ICAC under privilege and perhaps some other material cannot be used, so a large sorting process needs to happen first. That takes time and resources – it cannot be rushed.
Thus, any decisions on potential prosecutions remain some distance away.
Then follows the whole criminal justice process and its safeguards: the presumption of innocence; burden of proof on the prosecution; the requirement of a fair trial (not, for example, influenced by pre-trial adverse publicity); procedural fairness (including legal representation and submissions, testing of evidence, leading of evidence in defence); proof beyond reasonable doubt. All of this must be negotiated before the question of criminal punishment even arises.
But punishment is possible, deprivation of liberty, assets and freedom to act in relation to corporations are all on the cards.
So, we all need to take a deep breath and wait for the right processes to take their course – processes that might also include challenges to ICAC’s findings in the Supreme Court that might serve to derail follow-up action.
Wouldn’t it be nice just to move directly to punish those against whom findings have been made? Some would say yes, but ICAC is not a court, it is an investigator. It has done a good job in a fair and robust manner. We are entitled to accept and to act upon its findings, but they are not final orders enforceable against anyone. Investigators begin a process with the stories they tell, but courts and other bodies make orders against people on the basis of the stories they can properly assemble and act upon. That is the system we have and it takes time to work.
And yet, as the saying goes, ‘revenge is a dish best served cold…’
Illustration by Chrysa Koukoura