By the Hon. Ann Vanstone QC
It seems the Commission’s role in the criminal justice process, in particular how an ICAC matter gets to court, might not be well understood.
I set that process out to assist people to understand that the Commission does not decide whether a matter should be prosecuted, what charges should be laid or how a prosecution will be conducted.
How does the Commission come to investigate a matter?
The Commission can only investigate a matter if it is referred to it as potential corruption, from the Office for Public Integrity (OPI)1. The Commission cannot start an investigation any other way.
How is an investigation conducted?
Once I have accepted a corruption referral from the OPI2, the investigation is allocated to one or more ICAC investigators. Every investigation commences with an agreed investigation plan and I oversee the investigation3.
During an investigation, inquiries are made, documents reviewed and witnesses interviewed. Sometimes examinations are conducted and warrants are executed which permit my investigators to search places and seize documents and other things. Sometimes we seek warrants that allow my investigators to intercept telecommunications or conduct other covert activities. To obtain a warrant, the Commission must convince a Justice of the Supreme Court of the need for the warrant and the activities proposed in the warrant application.
If at the conclusion of an investigation I think the matter could be the subject of a prosecution, a brief of evidence will be compiled. The brief will consist of statements of witnesses setting out what they can say about the matter. Witness statements contain assertions of fact which the witness can make in the witness box according to the rules of evidence. The brief also includes exhibits such as transcripts of interviews, any telephone interceptions, documents seized, expert reports and other aids such as charts or chronologies. Nothing relevant is withheld from the brief.
A senior member of my legal team will also draft possible charges.
Referral for possible prosecution
As a result of the 2021 amendments to the Independent Commissioner Against Corruption Act 2012 (ICAC Act), the Commission can no longer send a brief of evidence directly to the DPP. The brief must now be referred to “the relevant law enforcement agency (usually South Australia Police) for further investigation and potential prosecution”4.
It seems likely that South Australia Police will refer these briefs to the DPP for a decision as to whether charges will be laid.
The role of the Director of Public Prosecutions
The DPP undertakes extensive independent analysis of all briefs to determine whether there are reasonable prospects of conviction and whether a prosecution is in the public interest. Only if these questions are answered in the affirmative will charges be laid. This is a process which can take many months and is ordinarily undertaken by a very senior prosecutor or the Director himself.
Commencing a prosecution
If charges are to be laid that will be done by the DPP or South Australia Police by filing an information or charge sheet in the Magistrates Court.
From this point the main role of ICAC investigators is to give evidence at the trial if required.
In some cases the DPP, although having determined that charges should be laid, subsequently decides that the charges should not proceed. Again, that decision is one taken by the DPP exercising his statutory independence.
Do all investigations lead to a prosecution?
In practice most investigations undertaken by the Commission do not result in a brief of evidence being referred for prosecution. This might be because allegations were not substantiated. It might be because the conduct would be better dealt with by a referral to the relevant agency for further investigation and potential disciplinary proceedings. Sometimes I determine that a matter is best dealt with by writing to the agency about deficiencies in their practices and suggesting measures to better guard against corruption; or I make a report to parliament under s 42 of the ICAC Act.
1 Independent Commission Against Corruption 2012, s 18E