Crime Commission shows its fangs

Struggle between the NSW Police Integrity Commission and the state Crime Commission back in court on April Fools Day ... NSWCC seeking to stop PIC investigation and media leaks ... New Police Minister vows to "sort this out" ... Crown Solicitor asked to produce pleadings relating to CC's fishing expedition for journalists' sources ... Cops and crims look on in delight

The struggle between NSW's Crime Commission and the Police Integrity Commission was back in court today (March 29) for a directions hearing.

It was adjourned to Friday (April 1).

Bret Walker: in demandThis round follows Justice Monika Schmidt's interim orders on February 18, which halted in its tracks the PIC's probe into the conduct of the CC.

For the full hearing Bret Walker is saddling-up for the PIC, while the Crime Commission will have to find a replacement for its usual favourite brief Ian Temby, who is now acting DPP.

The CC complained that the PIC wanted to conduct further hearings in public, as part of an ongoing inquiry. It further argued that the PIC has no statutory power to conduct "one aspect of its investigation".

Schmidt found that there were grounds to prevent a public hearing, but there were serious issues to be tried on the statutory limits argument.

The investigation is being conducted under s.23 of the Police Integrity Commission Act.

Private hearings had been held last year. On December 13 the PIC announced:

"The scope and purpose of this private hearing is ... to examine practices and procedures of the NSW Crime Commission in the conduct of actions under or taken pursuant to the Criminal Assets Recovery Act, 1990."

The CC claimed that represented an extension of the limited investigation into proceeds of crime and was beyond the PIC's powers.

The PIC has been looking at the asset confiscation program and in particular the way it is managed by two Crime Commission officers, John Giorgiutti and Jonathan Spark. It now wants to more fully "understand" how the Crime Commission operates.

The last time the PIC's powers were subject to judicial review was by the NSW Court of Appeal in the Jeff Shaw case.

The CA found the PIC's powers were wide. In fact, it need not confine its inquiries and reporting to misconduct - merely "conduct" will suffice.

Nor is the PIC bound to confine itself to investigating police misconduct. Here's Gyles JA:

"A report need not, of course, detail misconduct, whether of police officers or otherwise. It may report upon conduct, simply because the conduct is relevant to the outcome of the investigation and even if the outcome is that there was no police misconduct. Within the provisions to which I have referred, if the conduct is conduct relevant to an investigation of police misconduct there is no proper basis to exclude from a report to parliament information as to the conduct of persons other than police officers, acquired in the investigation... Nor is there a proper basis to exclude from a report to parliament permissible assessments, opinions and recommendations in relation to that conduct as to misconduct of or action against persons other than police officers."

Linton Besser - in award winning modeSince the interim injunction was granted there have been further unnerving developments. The Crime Commission has subpoenaed documents and phone records relating to any employee of Fairfax Media and their communications with the PIC, its officers, staff or intermediaries in the last 12 months to February.

Sydney Morning Herald journalists Linton Besser and Dylan Welch also received subpoenas from the CC demanding they surrender their mobile phones and sim cards used over the last year, as well as any other material relating to the PIC or any of its staff or officers.

The Herald intends to challenge the scope of the subpoenas. Its lawyers have written to the Crown Solicitor saying the subpoenas are too broad. They have also requested a copy of the pleadings.

So far no pleading have been seen.

The publisher of the paper, Peter Fray, said the subpoenas are a witch-hunt for sources.

They follow a series of articles published in February relating to the way the CC cut deals with organised crime figures, which allowed them to keep significant amounts of the proceeds of criminal activities.

The series also reported that there was inadequate auditing of the assets it was seeking to recover, which meant the state treasury potentially was missing out on millions of dollars.

Besser and Welch also claimed that the PIC was investigating the extent to which the CC was using criminal assets to pay its own legal costs and paying criminal defence lawyers at rates well over acceptable level of fees.

The PIC was concerned at the "opportunities for misconduct" within the commission. The way asset confiscation is managed is clearly a massive problem, if the Herald reports are anything to go on, and to date they have not been contradicted. See: Crime does pay. 

The incoming NSW Police Minister, Mike Gallagher, said during the election campaign ...

"Commissions investigating other commissions can't continue. We'll need to sort this out."

The overbearing behaviour of the CC has also attracted the attention of the new Premier, Barry O'Farrell.

He told The Sydney Morning Herald on Wednesday (March 30) that the commission needs to be subject to more transparency and oversight.

The PIC itself has been the subject of findings by its Inspector of breaches of procedural fairness and use of telephone intercepts not authorised by legislation.

On March 23 the Commonwealth government introduced legislation seeking to give the AFP wider power to litigate on behalf of the criminal assets confiscation taskforce under the Proceeds of Crime Act. The legislation will strengthen the court's ability to order the production of documents that go to identifying a person's wealth.

Even if the recently passed journalists' shield law under the Evidence Amendment (Journalists Privilege) Act were mirrored in NSW, it would provide no protection to the journalists for whose sources the CC is fishing.

The NSW Police has no love for either the Crime Commission or the PIC. The former because it stomps all over what the police think should be their turf and the latter because it pokes its nose into police conduct.

The coppers, the bikies and crims, both organised and disorganised, must be sitting back and watching NSWCC v PIC with great delight.