A call by the inspector of the Independent Commission Against Corruption to allow people found corrupt but not convicted in the courts to have their records expunged has been dismissed by a leading barrister as "a misunderstanding … of our criminal justice system".
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ICAC inspector David Levine made the recommendation for an "exoneration protocol" in his May report to Premier Mike Baird on the corruption watchdog's powers.
He argued such people have "no recourse to repair the impact of the ICAC public inquiry, and it is likely that their names will always be associated negatively with an ICAC inquiry".
But in a submission to a parliamentary inquiry considering the report, Bruce McClintock SC – who reviewed the ICAC's powers in 2005 and again last year with former High Court judge Murray Gleeson – firmly rejects the idea.
"I do not agree with this recommendation, which seems to me to reveal a misunderstanding of ICAC's role, its purpose, the [ICAC] Act itself and, indeed, of our criminal justice system," Mr McClintock writes.
The submission says when the government led by former premier Nick Greiner created the ICAC "it consciously avoided making one of its principal purposes the securing of criminal convictions, and that has remained the situation since then".
"In any event, in our system of justice, acquittal of a criminal charge does not mean the defendant is innocent or has been exonerated," he writes.
"It merely means that the relevant tribunal, usually a jury, has not been satisfied beyond reasonable doubt on the evidence actually admitted that the person committed the crime charged, a very different thing."
Mr McClintock also disagrees with Mr Levine's recommendation that ICAC hearings be held in private "to prevent the undeserved trashing of reputations".
He notes his 2005 review found public hearings are "indispensable to the proper functioning of ICAC" and this view was supported by last year's report.
The recommendation for private hearings is also rejected in submissions from the ICAC, former ICAC commissioner David Ipp and chairman of the NSW Electoral Commission Keith Mason QC, among others.
Inaugural ICAC inspector Graham Kelly says public hearings are "one of the ICAC's most important tools".
An exoneration protocol "would emasculate the ICAC, because so much time and resources would have to be wasted on this process", he argues.
Former ICAC commissioner Irene Moss says the concerns expressed by Mr Levine in relation to public hearings "have considerable force", but she supports retention of the commissioner's discretion.
Ms Moss offers some support for an exoneration protocol, but warns it risks giving "procedural advantage" to people accused of criminal acts, compared with those who are not.
