Last minute desperation ... After the ICAC hearing concluded, lawyers for the baddies wheel out a barrow-load of issues ... ICAC investigation should have been run more like a trial ... Ipp squelches Hale and Littlemore ... Gratuitous complaints about counsel assisting dismissed
Hale SC and happy clientTHERE'S been such a mountain of reporting about the ICAC findings on former NSW ministers Edie Obeid and Ian Macdonald that we might try a different and neglected angle and focus on some of the lawyers in the ring.
For some of the underlying tensions in the legal camps let's turn to Appendix 3 of the Operation Jasper report where we find Commissioner David Ipp rejecting the interesting proposition, from Tim Hale for Macdonald and Stuart Littlemore for Obeid, that the commission should have been run along lines more closely akin to a trial.
The two silks came up with a package of woes in closing submissions in reply and Ipp had little trouble downing them.
Of course, injecting trial-type procedures into a commission investigation would have bogged it down no end and made extraction of the truth about Obeid and Macdonald that much more arduous, if not impossible.
Hale commenced his package of woes by saying that because of the conduct of counsel assisting, Geoffrey Watson SC, the public inquiry is "fatally compromised".
Ipp thought that this was "far fetched and based on a misconception". Further, the complaint was not made while evidence was being adduced.
Hale claimed that some kind of "general standard" applies to counsel assisting in all hearings, including criminal trials.
As the Ippster put it:
"The difficulties in equating the duties of counsel assisting, who is assisting the commission in an inquisitorial and investigative public inquiry under the ICAC Act, with the duties of a prosecutor in an adversarial criminal trial are self-evident."
Hale was critical of Watson's opening statement, saying it showed he had a "closed mind".
Presumably he was referring to Watson's reference to "the most important investigation ever undertaken [by ICAC] into corruption on a scale probably unexceeded since the days of the Rum Corps".
Ipp said that ICAC is supposed to investigate and expose corruption:
"If counsel assisting regarded it as his duty in his opening statement to put the evidence of possible corruption in this operation in forceful and even dramatic terms, then, in the commission's view, he was justified by the circumstances ...
Contrary to Mr Hale's submission, the opening statement was full and detailed and revealed the issues in a most emphatic way."
It was clear from Watson's opening that while there was startling evidence of corruption, it could only be said to have been committed if and when the evidence supporting the claim had been proved.
There was also a whole pile of submissions from counsel for Sir Lunchalot about failures to investigate "all possible explanations"; to call "all reverent witnesses"; to produce "all relevant documents".
Watson: the subject of gratuitous complaints
The Ippster rejected this, saying:
- It was open to Hale to ask whatever questions he thought would be exculpatory of Macdonald and to ask that witnesses be called. "He did not do so."
- Hale failed to call any of these "relevant" witnesses. "This is an extraordinary submission to make now, when the adducing of evidence has concluded. It is, in any event, totally without substance."
- It was factually incorrect to suggest that Watson had withheld documents and "no ground exists that could possibly justify this submission by Mr Hale".
Last, but not least, Hale was upset about the manner in which evidence was adduced - there was a problem with counsel assisting asking "closed leading questions".
Again, Ipp did not agree. In fact, the complaint is "demonstrably unsound". There had always been an opportunity for witnesses to be examined by their own lawyers.
Littlemore in shove mode
Littlemore also was on his hind legs about the conduct of Watson.
He was in breach of bar rules 82 and 84, the great man insisted. Ipp said:
"The personal and pejorative criticism of senior counsel assisting is unwarranted. Contrary to these submissions, the commission considers that the conduct of counsel assisting was of great assistance to it in arriving at the truth."
In any even there was no breach of the precious bar rules.
Again, to speak of Watson "inflaming" the commission, as submitted by Littlemore, indicated some confusion with jury trials. The submission was not relevant.
Further, the submissions from the noted car-scratcher and journalist-shover were not linked to any casual result.
"They are made in a vacuum, as it were, apparently for the sake of criticising rather than criticising to found a submission relating to the result of the inquiry.
Indeed, they do not assert that the conduct of senior counsel assisting was productive of procedural unfairness or any other detrimental consequence.
The criticism was gratuitous. It should not have been made."
Whack for Stewie.
The Ippster wrapped it by saying that there is no doubt that senior counsel assisting was hard on some witnesses, but this was justified.
Many lies were told by witnesses, the crucial people involved were unlikely to be intimidated, they were aggressive and combative and getting to the bottom of the facts proved to be a very difficult task.
For these reasons criticism of counsel assisting were rejected and in any event the complaints were far too late as there was no objection at all while evidence was being extracted.
"The absence of a timely objection or complaint suggests there was no perception amongst those lawyers that something was going wrong."
Out of all this came a ruling from Commissioner Ipp:
"The commission hereby gives notice that, in future, if submissions make serious personal attacks on counsel assisting on unwarranted grounds - as has been done in Operation Jasper and Operation Acacia - the commission will take whatever steps are available to it to have the authors of such submissions called to account."
Thank you linesmen, thank you ball boys.
* * *
THE State is picking-up a large slab of the tab for Littlemore & Hale because it is committed to underwriting the costs of current and former MPs called before the anti-corruption body.
The government rate for senior counsel appearing for those witnesses is up to $4,000 a day and junior counsel up to $1,800 a day.
Solicitors are on a miserable $240 an hour up to a maximum of 10 hours a day.
Obeid and Macdonald would have had to stump up the difference.
Operation Jasper ran for 45 days. Oral evidence was heard from 86 witnesses who were represented by 66 counsel, including 22 senior counsel.
Over 100 solicitors were involved.
During the investigation stage ICAC obtained many thousands of pages of documents, financial records and computer databases.
It interviewed and got statements from 56 witnesses, and conducted 95 compulsory examinations.
Now on with the appeals against the findings, the prosecutions and the prosecution appeals.
This is a business that gives and keeps on giving.