Justice has a high price when it comes to defeating ICAC

ICAC investigator Paul Grainger was the last person on the planet that Andrew Poole wanted to speak to.

For Poole, Grainger was the personification of his nemesis — the Independent Commission Against Corruption, whose 2013 “findings” of corruption against the Newcastle businessman must rank alongside the Margaret Cunneen affair as one of the nation’s great legal scandals.

Poole has been twice vindicated by the justice system — once on the criminal standard of proof and once on the less onerous civil standard.

Because of that he thought he was finally rid of what he refers to as the buffoons of ICAC. But on November 25, Grainger was back and this time he was talking to Poole’s son Jace on the young man’s mobile phone, asking to talk to his father.

Jace, according to Poole, is “a pretty cool dude”. He was bemused, treated Grainger like a telephone pest and hung up.

Once the context is considered, this was a perfectly reasonable response. In 2013, ICAC had accused his father of corruption over his actions as a director of Doyles Creek Mining, a company that was bought by NuCoal Resources.

Poole’s double exoneration took years of litigation and $2.5 million in legal fees. It also took luck.

His first vindication came when the Director of Public Prosecutions, after considering ICAC’s case, decided that a prosecution was not justified.

The second vindication is when he got lucky. His insurance company, Chubb, refused to cover his ICAC-related legal bills because it believed he was corrupt.

That opened the way for him to bypass the fact that there is no appeal on the merits from ICAC’s decisions.

Chubb’s intransigence allowed him to re-litigate in the Supreme Court the same allegations that had been accepted by ICAC. This time, with Chubb running ICAC’s arguments, Poole won.

All of that provides the context for Jace Poole’s entirely rational decision to hang up on Grainger.

When he called back, it was on Andrew Poole’s mobile phone and it was not a pleasant exchange.

“I said to Grainger: ‘You leave my family alone’,” Poole said.

“I’ve beaten them up in the courts, and hopefully embarrassed these clowns, so now they go to your family.

“Most worrying to me was why they had chosen now to start harassing my family and phoning my family direct.

“There is no reason why they should have any mobile phones of my family on their database.

“These clowns have been chasing me around for some time and I have taken it on the chin financially and personally.

“But for them to now start deliberately harassing my family is beyond the pale.

“His excuse to me was ‘Oh, that was the number we had on file’. Absolute crap. These clowns have admitted to my lawyer that they tapped my phone and had me on tape. They knew my number.”

Poole says Grainger undertook to remove Jace’s phone number from ICAC’s files.

What happened next suggests that his powerful agency might have more in common with the Keystone Cops than with Elliott Ness.

Grainger informed Poole he was being subpoenaed as a prosecution witness in next year’s criminal case against former NSW mining minister Ian Macdonald and former union leader John Maitland.

While ICAC recently gained the power to initiate criminal prosecutions, these matters are supposed to be handed over and run by the Director of Public Prosecutions. So when Grainger started talking about the criminal case, Poole grew suspicious.

“I was gobsmacked that ICAC was involved in any way. I could not believe it when he rang me up on behalf of the Crown,” he said.

“I assumed it was all wrong, that he was pulling a swiftie on me, until I saw the subpoena with his name on it from the DPP.

“I could not believe that the DPP — part of the judicial set-up — would be involved in any of this sort of rubbish. It is just so wrong on so many levels.

“ICAC should be referring things to the DPP and then leaving it alone.”

When Grainger assured him he was doing “admin” for the DPP, Poole began to see the funny side of the incident.

He realised ICAC and the DPP might be unaware of the sworn testimony he gave in his own case before the Supreme Court — the case that led to his exoneration.

Part of his testimony concerned the nature of the relationship between Macdonald and Maitland, an issue on which ICAC had reached a different view, and which is expected to come up in the pending criminal case.

The laws of sub judice mean it would be unwise to provide a detailed account of what Poole had to say about that relationship when giving evidence in his own case.

But if Poole is called to give evidence in the criminal case, and he gives similar testimony, the prosecution’s narrative is likely to hit a few speed bumps.

“I said to Grainger: ‘Paul, you’re kidding. Have you not read my testimony in the Supreme Court?’

“You are calling me as a Crown witness after my sworn testimony to the opposite?

“His response was ‘Hmm, their decision, not mine’,” Poole said.

Even if the DPP and its helpers at ICAC decide against calling Poole to give evidence, he said he was considering showing up anyway and making himself known to the judge.

“I would love to be called to give my side of the story — and it will be what I said to the Supreme Court, because that’s the truth.”

Poole’s story might look like proof that it is still possible to defeat injustice. But it’s not.

His legal bills came to $2.5 million. Of that, $650,000 went on defending himself during ICAC’s own inquiry, which he will recover from Chubb, and $1.9m went on his Supreme Court case.

Even though he won in the Supreme Court, he will only recover $1.5m. That means a man who has done nothing wrong is being forced to pay $400,000 to prove that an agency of the NSW government was wrong to call him corrupt.

That’s the sort of money it takes to beat ICAC. Businessman John Kinghorn paid $1.3m in legal fees before he, too, was able to clear his name.

Without very deep pockets, innocent people who fall victim to this agency’s idiosyncratic methods have no hope of proving their innocence.

The structure that has been put in place by the government of NSW denies access to justice to everyone but the rich and those who happen to have the legal expertise of a Margaret Cunneen SC. This high-profile prosecutor, the third member of the innocent victims club, had a network of lawyers on her side and enough legal skill to protect herself and the other members of the club: her son, Stephen Wylie, and his girlfriend, Sophia Tilley.

Keep this in mind the next time anyone from the government of NSW has the hide to mention the wonderful things they are doing for access to justice.

By Chris Merritt, The Australian December 2015

(WTF) used with permission.

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