Murray Kear
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Mr Kazal has been found by NSW ICAC as guilty of corrupt conduct but was not criminally charged nor able to challenge the findings of ICAC.
It would be a mistake, to view this absence of prosecution as beneficial for Mr Kazal. Because there is no merits review of ICAC’s determinations, a criminal trial would have given him the opportunity to have the facts that led to the commission’s finding subjected to scrutiny. Instead, he has been labelled as corrupt and denied access to the one forum that could have determined conclusively whether he was in fact guilty of wrongdoing: a criminal trial. He has had his reputation damaged which impacts his family and his ability to conduct his family business.
The case of Mr Kazal shows that there needs to be some mechanism for those labelled as ‘corrupt’ by ICAC to test the findings in a court of law and some form of exoneration protocol introduced. -
In the 2015 case of Murray Kear, the Courts held that the corruption findings against Mr Kear were wrong. This finding however, did not remove the corruption findings made by NSW ICAC.
Murray Kear
Overview
Murray Kear was the head of the NSW State Emergency Service (“SES”) and in 2013 was investigated by ICAC for dismissing a staff member allegedly in reprisal for the staff member making allegations about the conduct about another staff member.
In December 2013, ICAC held a public inquiry into the allegation and issued a report in January 2014 finding Mr Kear had engaged in corrupt conduct.
In early 2015 Mr Kear was charged by ICAC with dismissing the Deputy substantially in reprisal for the making complaints.
What did it look like when ICAC investigated Mr Kear?
In the case of Mr Kear the full force of ICAC was brought against him for dismissing his Deputy.
First, the inquisitorial powers of ICAC, search warrants, the obligation to answer questions, the public hearing, the cherry picking of evidence and exclusion in the report of evidence favourable to Mr Kear.
Then, the public report of ICAC condemning him as corrupt.
Then, being forced to retire, disgraced without an ongoing wage and being unemployable.
Then, all the powers and resources of ICAC in prosecuting him with an offense which presumed guilt unless Mr Kear proved his innocence.
Mr Kear’s case went to the Courts and his trial lasted for 16 days.
On 16 March 2016, Magistrate Grogin dismissed the charge against Mr Kear and found him innocent of the charge.
In the course of his judgement he stated:
“113. I find that there were many factors behind the dismissal of Ms McCarthy by the Defendant. The inability of Ms McCarthy to assimilate into, co-operate within and lead the SES was, I find, the primary and substantial reason for her dismissal by the Defendant. I am satisfied that the Defendant did not dismiss Ms McCarthy as a reprisal, substantial or otherwise, for her making public interest disclosures. I find that there was no element of revenge, pay-back or retaliation against Ms McCarthy by the Defendant.”
This was a finding not simply that Mr Kear was not guilty but a positive finding of innocence. The effect of the Magistrate’s judgement was that ICAC’s findings of corrupt conduct by Mr Kear was wrong.
How did ICAC respond to the finding of innocence?
There was no apology or form on exoneration from ICAC.
Irrespective of the Court’s decision, ICAC believes that their findings of corrupt conduct still stands.
In ICAC’s Report to the Premier: The Inspectors Review of ICAC, 12 May 2016 it states:
“Criminal courts do not operate as a mechanism for review of Commission findings. The fact that a person found to have engaged corrupt conduct is not prosecuted for a criminal offence or, if prosecuted, not convicted does not “exonerate” that person from a corrupt conduct finding. In any event, criminal proceedings do not “exonerate” a person from a criminal offence. In a criminal court persons are “acquitted” or found “not guilty”. They are not found “innocent” or “exonerated”.”
Further articles:
‘ICAC’s ongoing smear of innocent Kear shows the need for reform’, The Australian, 5th August 2016
Rule of Law Australia Submission to the NSW Parliamentary Committee focusing on the Murray Kear Case and ICAC’s failure to presume innocence and provide fairness and justice
Miranda Devine writes in Daily Telegraph, ‘ICAC victims cleared but still left smeared’
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