Prosecutors attempted to entice a brain-damaged witness who suffers from amnesia to give evidence against jailed former NSW politicians Eddie Obeid and Ian Macdonald because his evidence would significantly increase the likelihood of guilty verdicts.
Extracts from emails sent to investment banker Paul Gardner Brook show the Office of the NSW Director of Public Prosecutions believed he would be “a very important witness” in pending criminal proceedings against Obeid, Macdonald and one other person.
The emails, by DPP solicitor Alison Graylin, were sent to Mr Brook last year before the Independent Commission Against Corruption had informed the DPP about the state of Mr Brook’s mental health.
In March this year, ICAC gave the DPP a medical report on Mr Brook for use in criminal proceedings next May against Obeid, Macdonald and Obeid’s son Moses.
After the medical report was completed on November 3, 2012, Mr Brook had been ICAC’s star witness at a public inquiry into the way the previous Labor government had allocated coal exploration licences. His brain injury and amnesia were not disclosed during the inquiry or in its report to parliament, which led to the expropriation of coal exploration licences.
Ms Graylin, who is part of the DPP’s ICAC referral unit, told Mr Brook that the pending criminal trial “is of enormous significance to the people of NSW and representative democracies everywhere”. It would also be “an opportunity for you to regain some of what this matter has cost you personally”.
Her emails are subject to a claim of legal professional privilege by DPP Loyd Babb SC. But extracts were read into the Hansard record of the NSW Legislative Council on Tuesday by the Liberal Party’s Peter Phelps.
He told parliament the correspondence “smacks of a crusade for scalps by a person who has inappropriately conflated the role of the Office of the Director of Public Prosecutions with the agenda of the Independent Commission Against Corruption”.
Ms Graylin had used language that was at odds with the DPP prosecution guidelines. It was “not the sort of language one would expect from an independent prosecution by a model litigant”, Dr Phelps told parliament.
The emails predated ICAC’s disclosure of the report on Mr Brook’s mental health, but Dr Phelps told parliament they raised the question of why the DPP was encouraging him to give evidence when there were other concerns about his credibility.
“ICAC officers knew from Brook’s previously unreleased private examination by counsel assisting, Geoffrey Watson SC, that Brook was a liar and a fraudster,” Dr Phelps told parliament.
He believed there was a strong balance of probability that ICAC had never told the DPP about those concerns.
Dr Phelps told parliament the incident meant there had been “repeated failures by ICAC to provide the DPP with all relevant material, especially that of an exculpatory nature”. There appeared to be a pattern of systemic maladministration under former ICAC commissioners David Ipp and Megan Latham, Dr Phelps told parliament.
Chris Merritt
Legal Affairs Editor, The Australian
(WTF) used with permission