“STANDING STRAIGHT IN THE BOX

 A PAPER BY GREG SMITH, BARRISTER AND

DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS FOR NEW SOUTH WALES

The theme of this Conference, “Ethics Overboard – No Apologies”, would be

seen by many as accurately describing the culture of Australia and many other parts

of the world. 

… the need for sound ethics and promotion of the truth has never been

greater in this country.

What is Truth?

Truthfulness is one of the greatest and appealing virtues. Recall the lines from a beautiful Irish love song:

 "Twas not her beauty alone that won me.

 Oh no, twas the truth in her eyes ever burning,

 that made me love Mary, the Rose of Tralee."

Religious perspective sees truth as uprightness in human action and speech.

This is called truthfulness, sincerity or candour. Truth or truthfulness is the

virtue which consists in showing oneself true in deeds and truthful in words and in guarding against duplicity, dissimulation

and hypocrisy.

Ian Temby QC:

Police officers have to deal with some vile people. But

that cannot justify them becoming vile.

So it is with the truth. Public officials of all sorts, and

police officers especially, must maintain the highest

standards even if those with whom society requires

them to deal are frequently guilty of reprehensible

behaviour. If the police sink to the standard of

criminals, whether as to truth or otherwise, the society

will suffer grievously.

"What all this comes down to is that

wrongful means must not be used to

achieve noble ends. There is no

point in trying to enshrine that

proposition in a rule or regulation.

It is simply a question of

integrity, and that depends on

organisations be imbued with an

ethical sense, and the ultimate

moral responsibility of individual

officers."

TO BE A TRUTHFUL WITNESS

How can a witness ensure that he/she tells the truth and the whole truth in a way that is clearly understood by the Tribunal and

those present?

1. Witnesses don’t ask the questions

An answer which is not responsive to the question will be rightly

objectionable, for example:

 

A witness, Bob Jones, an employee of the Planning Department of a

suburban Council, is called before the ICAC to give evidence about

seeing his boss, Daniel Allen meeting in a local pub with a local

property Developer, Peter Brown, who had earlier in the same week

tried to bribe Jones to influence the making of a favourable

recommendation on a controversial development application to a local

council. Other evidence establishes that Allen wrote a highly

favourable report to Council, strongly recommending approval.

2. The answer may not be relevant to the Inquiry.

That answer is clearly objectionable as it is non-responsive. Also it expresses an opinion which may

have no weight at all.

3. The Person examining the Witness may only be interested in obtaining part of what the

witness can say.

•His suspicion may have no weight;•He may prompt lengthier cross-examination;

•He may be seen as having an axe to grind;He may expose himself as an informer

4. But what if witness can give very

relevant evidence but no question

asked seeks an answer which

would allow such evidence to be

given?

A simple solution is to seek to speak

to the counsel assisting or

prosecutor during the next interval

in the witness’s evidence, if any,

and to inform him of the additional

material.

This is important, particularly if the witness has

remembered things whilst being examined which are

not set out in any statement or other document or

interview he/she has provided.

If this is not possible, the witness should prepare a

written comment on the additional material and either

post it or give it to someone involved in the inquiry.

This is a far more satisfactory way of dealing with

these problems than by saying too much in the witness

box.

If a witness or informer is timid or wishes to remain anonymous, there are

procedures available to assist this wish.

Persons who believe they have

relevant information

concerning corrupt or other

criminal behaviour may seek

confidentiality before they

disclose such information.

5. Problems for Witnesses

Despite all alternatives to keep a

whistleblower witness’s information as

confidential as possible, there are sometimes

occasions where a Commissioner decides that

such a witness has to give evidence in a public

hearing which implicates or embarrasses

persons in superior positions to him/her in

employment.

A typical protected witness:

6. Statutory Protection

There are three sections of the PIC Act, which mirror sections of the ICAC Act, which protect witnesses against dismissal or other damage to employment.

 

            114 Dismissal of witness, or person assisting Commission, by employer

 

            113 Injury to witness or person assisting Commission

 

            118 Contempt

 

8. Protected Disclosures Act 1994

3 Object

(1) The object of this Act is to encourage and facilitate the

disclosure, inthe public interest, of corrupt conduct, maladministration and

serious andsubstantial waste in the public

sector by:

(a) enhancing and augmenting established procedures for making disclosuresconcerning such matters, and (b) protecting persons from reprisals that might otherwise be inflicted onthem because of those disclosures, and (c) providing for those disclosures to be properly investigated and dealtwith.

Sections 8 and 20 of the Protected

Disclosures Act give added protection to a

witness or a whistleblower

s.8- Disclosures must be made by public officials s.20- Protection against reprisals

I believe that some of the greatest examples of

courage, namely assistance given by whistleblowers,

go largely unheralded. The reasons for these

omissions include political bias; the desire for

anonymity; the annoyance to vested interests

caused by the revelations; plus the fact that often,

the truth hurts.

Brian Martin, in his Whistleblower's

Handbook rightly states:

"Society desperately needs principled

and courageous people, and it needs

them to be successful in exposing

problems and exploring solutions."

 

Such people are most vital in the fight to restore decency,

honesty and security to our troubled society. I encourage

these heroes and heroines to come forward and tell what they

know, notwithstanding the pitfalls, for the sake of a better

society, because as so eloquently predicted in the Gospel of St

John:

 

"the truth will set you free.”