Dear Jerry,

When I hear the term, judicial inquiry, I reach for my trusty bolt-action .303. In the English-speaking world, such inquiries dissipate billions of public money because law schools fail to train people to staff a myriad of allegedly pro-truth/non-adversarial bodies, e.g. Royal Commissions, inquests, tribunals, ICAC, the NSW Land and Environment Court, and now the Australian Family Court.

And training exclusively for the anti-truth adversary system seems to blow certain synapses in the brain circuit. The malady tends to make it hard for judges and lawyers to recognise the truth, even if it bit them on the nose.

Inquiry reports thus tend to be either wishy-washy or plain wrong.

Think dear old Harry Gibbs. Reporting in 1964 on the glorious debacle of his (Brisbane) National Hotel inquiry, he found, to widespread hilarity, that Honest (sic) Frank Nicklin’s police chief, Frank Bischof, was NOT corrupt.

Think Lord Justice Scott. As Lord Hattersley has noted, his 1996 report on the Matrix-Churchill affair found that elements of the Thatchist regime had “designedly” lied to Parliament about secretly relaxing the embargo on selling arms to Mr S. Hussein, but had “no duplicitous intention” in doing so.

How’s that again, m’lud. 

Think Lord Hutton. Last January he found, to universal derision, that elements of the Blairist regime did not embellish the “intelligence” they used, along with George and Jackie, as a pretext to invade Mr Hussein’s tiny country.

Nonetheless, only barristers seem to know how to ask truth-finding questions. Hence my recommendations:

1.  ICAC to have three commissioners, one barrister to find the truth and two non-lawyers to recognise it.

2.  Pre-hearing. Suspects’ lawyers to help separate the wheat from the chaff.

3.  Hearings. The function is the “manifestation of the truth”, and the task is that of the commissioners. It follows that there should be no counsel assisting; hearings should be shortish; witnesses should give evidence via a narrative (the Yes-No format is anti-truth); and barristers should ask questions only through the presiding commissioner to stop them using cross-examination to obscure the truth and spin it out.

4.  Standard of proof. The formula, “beyond reasonable doubt” is an anti-truth device invented after English barristers got control of the process. Tasmania’s Justice Christopher Wright believes it causes 25 percent of wrong not guilty verdicts. The formula should be: are we (or are we not) thoroughly convinced? It means the same as beyond reasonable doubt and commissioners can understand it.

5.  Reports. Commissioners should fearlessly expose the organised criminals to public gaze, because that is the only penalty most will suffer: at trial 21 anti-truth devices will ensure that upwards of two-thirds escape justice.

6.  Get help from the ace on investigative systems and techniques, Bron McKillop, of Sydney University. In 1994, he told ICAC what it was doing wrong, but unfortunately someone at ICAC concealed his advice from the world, and in 2000 even the superlative investigative skills of the Commissioner, Mrs Irene Kwong Moss, failed to discover who did it.

7.  Firmly resist lawyers’ urgings to change nothing.

With every good wish, etc

First published in Justinian August 24, 2004

 

Evan Whitton

THE Hon Jerrold Sydney Cripps QC, 71, (above) is reviewing the NSW Independent Commission Against Corruption. This is my submission on how, for the first time, ICAC can do what it is supposed to have been doing for 15 years: logically directing every action towards finding and reporting the truth about organised criminals in the public sector.