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Arms, sinews and fingers get crossed at the CCC

Arms, sinews and fingers get crossed at the CCC

Is WA’s Corruption and Crime Commission protecting individuals against excesses by the Executive arm of government? Or is the CCC a major sinew of that arm, party to excess as it ‘fingers’ possibly innnocent people? Barrister and former WA Premier, Peter Dowding, comments.

CCC and Parliament need to think again: where has justice gone?

*By Peter Dowding

West Australians are understandably confused at the controversy surrounding the Corruption and Crime Commission.

Lurking behind this controversy and the revelations is a very fundamental issue of the legal system and the protection of each individual citizen against excess by the Executive arm of Government.

The principle has its roots in ancient laws from the UK, including Magna Carta (13th Century) which remains on the Statute books in England, and in a long history of judicial decisions all of which have framed our Australian system.

Without wanting to express any view about former Cockburn Mayor, Mr Lee – whom I have not met – it is clear that in the mind of the media and the public, he has been tried and convicted by the CCC.

In the mind of the Parliamentary Inspector Mr McCusker the CCC got it wrong and the evidence against Lee was not sufficient for it to have formed an adverse view about Mr Lee.

Mr McCusker said: "..it is important that any opinion made public by the CCC be reached in a balanced way, taking into consideration all of the evidence, not only those circumstances which may support an adverse opinion. The CCC has not done that."

In the Supreme Court the Chief Justice refused the CCC’s attempt to limit the McCusker criticism, saying that the court may not have the power to stop Mr McCusker expressing his opinion and may have no power to control the operation of the CCC.

So at best the situation is a muddle, or worse, a breeding ground for serious injustice which the MPs who passed the legislation had no intention of creating.

So why are a growing number of lawyers, civil libertarians and academics expressing concern about the CCC and its modus operandi?

To illustrate the problem, compare the position of a man accused of an axe
murder and Mr Lee. The man accused of the axe murder has a right to silence – he cannot be forced to answer questions, either during the investigation nor during his trial; he is entitled to know what he is charged with and to be given the evidence on which the Crown will rely to establish his guilt; he is entitled to a lawyer and to cross-examine the witnesses who give evidence against him; he is entitled to call evidence in his own
defence.

Despite the fact that he has been charged, the community regard him as innocent until proven guilty. The case must be proved beyond a reasonable doubt. Once convicted the axe man may appeal to superior courts.

Even with all these safeguards, there is a risk that an innocent axe man might be the victim of the system getting it wrong. Take the people who were wrongly convicted (some just escaped the death penalty) and spent years in prison – the names of Beamish and Button and more recently Mallard are examples.

Now consider Mr Lee. He stands condemned, punished by the loss of his position, but is not entitled to the protection the axe man can expect.

Mr Lee can be called to secret hearings and must not tell anyone that he was there; the CCC can refuse to say why he is there, and can compel him to answer questions; he may not test evidence or cross examine witnesses.

Then the CCC can make a public report of its findings, which are not based on the axe man’s test of "beyond reasonable doubt". There is no appeal because the CCC is not a court.

The consequences for those adversely affected by the CCC are that they may be charged or disciplined…or lose their jobs and their reputation and be left with no redress at all.

Is this what the Parliamentarians intended when they passed this legislation? Or did they expect the CCC to act like the American grand jury to privately sift the evidence, then pass it on the Director of Public Prosecutions or the police to allow them to consider charges…at the same time as affording the protection our legal system demands.

The CCC needs to reconsider its processes and so does Parliament.

*  Mr Peter Dowding is a barrister and former Premier of WA, and has been a co-convenor of Civil Liberties Australia in Perth.  This article first appeared in The West Australian, 12 Jan 09, p20.

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