“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.”