The proceeding was quashed on the basis that according to the legislation empowering the CCCs’ functions it did not include the prosecuting of offences but to only ‘refer evidence assembled in the course of its investigations to another independent agency’ as per Chief Justice Wayne Martin. While the prosecution against the Officer was quashed, the Chief Justice said ‘obviously there were other agencies, most notably the police, who would have the authority … to commence proceedings’.
So what does this mean for many of the prosecutions conducted by the CCC? The WA Attorney General, Michael Mischin has stated that at least 70 prosecutions may be in doubt as they were launched in the Magistrates Court but that those dealt with in higher courts are not open to legal challenge if a convicted person so chose to challenge to their conviction.
In response, there were calls from the state government to retrospectively enact legislation to validate the prosecutions but the Premier Colin Barnett has ruled out any such rushed legislation: ‘I don’t think there’s going to be a quashing of those convictions’. Mr Barnett also says the CCC probably shouldn’t have prosecutorial powers, limiting it to investigations.
However, in recent news Brian Burke, the former WA Premier who was convicted and fined $25 000 by the CCC in 2010 has threatened to seek compensation of up to $2 million in legal fees. Mr Bourke has stated he had spoken to his lawyers for advice about taking action to recover the fees he spent on his defence when he was fined for lying to the CCC about an inquiry into a beachside development. Added Mr Burke, ‘The principle is that the charge was unlawful therefore it was not valid and everything that flows from it is invalid’.
Commissioner John McKechnie has responded to the issue stating that the ruling is merely a technicality and should not affect the validity of the evidence that had been utilised in court. He stated: ‘There were respectable views that the CCC had that power, the court has ruled it doesn’t. …Technically, we haven’t had the power to prosecute but that doesn’t affect the validity of the evidence put before the courts’. Mr McKechnie did say that in the future prosecutions would be handled by other bodies.
STEVEN CASTAN is a barrister, accredited mediator and family dispute resolution practitioner in Western Australia.