The Independent Commission Against Corruption (ICAC) provides procedural guidelines relating to the conduct of public inquiries.
The guidelines are issued in accordance with the provisions of s 31B of the Independent Commission Against Corruption Act 1988 (“the ICAC Act”) and are directed to members of the Commission’s staff and counsel appointed under s 106 of the ICAC Act to assist the Commission (“Counsel Assisting”).
The guidelines provide guidance on the following aspects of the conduct of public inquiries:
(a) the investigation of evidence that might exculpate affected persons,
(b) the disclosure of exculpatory and other relevant evidence to affected persons,
(c) the opportunity to cross-examine witnesses as to their credibility,
(d) providing affected persons and other witnesses with access to relevant documents and a reasonable time to prepare before giving evidence,
(e) any other matter the Commission considers necessary to ensure procedural fairness.
Who is an “affected person” and what “is exculpatory evidence”?
Affected person means a person against whom substantial allegations have been made in the course of or in connection with the public inquiry concerned.
The ICAC Act does not define “exculpatory evidence”.
For the purpose of the Guidelines, “exculpatory evidence” means credible, relevant and significant evidence that tends to establish that a person has not engaged in the corrupt conduct that is the subject of the Commission’s investigation.
The Guidelines provide for the exculpatory evidence uncovered during an investigation to be identified and investigated where necessary.
Further, the exculpatory evidence must be logged in the ICAC document management system and included in Counsel Assisting’s brief.
Additional requirements are imposed by Guidelines requiring the senior case lawyer bringing to the attention of Counsel Assisting any exculpatory evidence that comes to his or her attention during the public inquiry, the existence of which is unknown to Counsel Assisting.
In either case, Counsel Assisting will bring such evidence to the attention of the presiding Commissioner, who may direct that further investigation be undertaken.
During an inquiry an affected person is also entitled to put before the ICAC exculpatory evidence.
Where the Commission’s investigation includes a public inquiry, it will make available to an affected person exculpatory evidence in its possession. The timing of the disclosure of any such evidence, and the form in which disclosure will be made, are matters for the presiding Commissioner.
Is inculpatory evidence disclosed to affected persons prior to a public inquiry?
Where the ICAC is aware of inculpatory evidence against an affected person, which the Commission intends to rely upon, the substance of that evidence needs to be disclosed to the affected person.
ICAC has a duty to disclose this information prior to a public inquiry, in order to ensure procedural fairness and that the affected person is given a reasonable opportunity to consider and respond to that material.
The timing of the disclosure of any such evidence, and the form in which disclosure will be made, are matters for the presiding Commissioner.
Is evidence disclosed to witnesses prior to a public inquiry?
The Commission is not required to provide a witness with access to any evidence before the witness is examined.
Where to do so would not prejudice the investigation, the Commission may provide a witness with access to relevant documents before the public inquiry or before the witness is examined.
A decision as to whether relevant documents will be disclosed to a witness before the witness is required to give evidence in a public inquiry, the extent of the disclosure, and the method of disclosure will be determined by the presiding Commissioner.