INTO POSSIBLE CORRUPTION OR OTHER SERIOUS DISHONESTY IN RECENT YEARS OF PAST AND PRESENT ELECTED MEMBERS OF THE LEGISLATURE

COMMISSION PRESS STATEMENT

23rd December 2008

1. As indicated in the Commission’s Press Statement of 10th December 2008, the Commissioner, Sir Robin Auld, will open the Inquiry hearings on Tuesday, 13th January, in the Conference Room of the Regent Palms Hotel, at 10.30 a.m. He will continue them throughout January and, as necessary, into February, normally sitting from 10.30 a.m. to 1 p.m., and 2 p.m. to 4.30 p.m.  A provisional programme for the first two weeks is annexed.  It will be reviewed and adjusted as necessary, and details of any changes will be published as they arise – as will subsequent programmes.
   
   
2. At the hearings, the Commissioner will be represented by Counsel, Mr Alex Milne and Miss Sarah Clark, instructed by the Solicitor to the Commissioner, Mrs Jacqueline Duff.  The Governor, if he wishes, may be represented by the Attorney General or another public officer holding a legal appointment.  Any other person, whose conduct the Commissioner considers a subject of the Inquiry or to be implicated or concerned in a subject-matter of the Inquiry, may be represented by an Attorney.  The Commissioner may award any person attending before him, whether in response to a summons or by request, a sum, which in his opinion, represents the loss caused to that person by such attendance.
   
   
3. As provided by section 4(1)(j) of the Commissions of Inquiry Ordinance (the Ordinance),it is for the Commissioner, to determine the procedure to be followed at the hearings.  In doing so, he has kept in mind the essentially inquisitorial nature of the Inquiry set by: 1) the great breadth of its subject-matter and length of the period to be investigated; 2) the short time within which his Report is to be submitted, originally four – now seven - months; and 3) the tentative and preliminary nature of his first and main task, namely to inquire where there is information of possible corruption or other serious dishonesty in recent years on the part of or in relation to past and present elected members of the Territory’s Legislature. (For the Commissioner’s Terms of Reference, see the Commission’s Web-Site.)
   
   
4. The Commissioner is not a Court or Tribunal with power to determine any issue of fact in the Inquiry or to direct any particular outcome.  In particular, it is not his job to make findings of guilt or in exoneration of those against whom allegations may have been widely and publicly made.  The most he can do, should he conclude that there is information of possible venality,is to consider whether to recommend a further and more searching investigation, or investigations, by some other body.  His second task, which but for the first, would certainly not call for a partly forensic exercise of this sort, is to report on any indications of systemic weakness in the law or its administration in the Territory.
    
5. The Commissioner may, by section 4(1)(a) of the Ordinance, receive and consider any material, whether by way of oral evidence, written statements, documents or otherwise, even though it would not be admissible as evidence in civil or criminal proceedings.  And, by section 4(1)(b), he may determine how such material should be given and by whom.  It is a matter for him what weight he gives to any evidence. 
   
   
6. The Commissioner intends to exercise his power to take all evidence in public and on oath or by affirmation, save where persuaded that the interests of the public and/or justice require otherwise. There will be a daily transcript provided by live-note transcription of the evidence, copies of which may be obtained daily from the Commission Web-Site or from the Commission Secretariat on payment of the appropriate fee.  There will be no other recording or any broadcast of the proceedings. The Commissioner may prohibit publication to, or disclosure by, any person attending before him of all or part of the material received by him.
   
   
7. Evidence given to the Commissioner will not be admissible against the person giving it in any civil or criminal proceedings, except for perjury or contempt.  That does not mean that the witness is immune from subsequent criminal proceedings, if there are any, prompted by other information or evidence arising in the Inquiry.  In addition, all evidence given before the Commission will be absolutely privileged, and no witness shall be liable to any civil proceedings in respect of it.  In all of this, the Commissioner will endeavour to conduct the Inquiry in such a way that it does not risk prejudicing the fairness of any subsequent proceedings.
   
   
8. The proceedings will start on 13th January with an opening statement from the Commissioner in much the same terms as those in this statement.  There will be no opening address by Counsel to the Commissioner or by anyone else.
   
   
9. As the annexed provisional programme shows, the first stage of the hearings will, in the main, be taken up with oral examination of Members of the House of Assembly, on each of whom the Commissioner has had served a summons, pursuant to section 4(1)(d) of the Ordinance, to attend to give evidence and to produce documents as to his or her interests,.  As can be seen from the programme, the first to be examined will be the Premier, the Hon Michael Misick. (The examination of each of the Ministers will be followed, if the Commission considers it appropriate, by examination of his or her Permanent Secretary or other senior Public Servant.) 
     
10. Counsel to the Commissioner will examine in chief each Minister or Member and, where called, Permanent Secretary. The witness may then be examined by his or her Attorney, if any.  Finally, he or she may be examined again by Counsel to the Commissioner.
    
    
11. The second stage of the hearings, which should begin during the third week of the hearings, will be devoted to the oral evidence of others.  The Commissioner will notify in advance the gist of such evidence to those whom he considers may be adversely affected by it.  Counsel to the Commissioner will examine each witness in chief.  With the permission of the Commissioner, each witness may be cross-examined by or behalf of any person the subject of the evidence or implicated or concerned in the subject-matter of the evidence.  The witness may then be further examined by Counsel to the Commissioner.
    
    
12. At the third stage of the hearings, the Commissioner will give an opportunity to any person to give evidence in response to any oral evidence that he, the Commissioner, considers may adversely affect or cause concern to that person.  The Commissioner may, in his discretion receive any such evidence orally or in writing.  If he decides on an oral procedure, and the person concerned opts to give evidence, he may be examined in chief by an Attorney instructed by him for the purpose; he may then be examined by Counsel to the Commissioner, and, if he wishes, be re-examined by his Attorney.  Any person, who, at the direction of or with the acquiescence of the Commissioner, gives evidence in writing, will have a reasonable time within which to do so.
    
    
13. The fourth stage of the hearings will consist of an opportunity to Attorneys representing persons at the Inquiry to make submissions on their behalf, where applicable, in relation to the evidence as to disclosure of interests in stage one of the hearings and to that in stages two and three of the hearings. These will be followed by an address on the same issues from Counsel to the Commissioner.  Where any Attorney has opted for, or been directed by the Commissioner to make, any submission in writing, he will have a reasonable time within which to do so - as will Counsel to the Commissioner to make any address in reply.
    
    
14. Previous Commission Press Statements have made plain that, since the Commissioner’s appointment in July 2008, the Commission Secretariat has received a great deal information from many people bearing on his terms of reference.  The vast majority of those providing that information, did so in confidence for fear of intimidation and/or victimisation that would flow from any publicity.  Thus, the information to be given by witnesses in stage two of the hearings can be but a fragment of all the information before the Commissioner, to each part of which he will have to give the weight he considers it deserves.
    
    
15. The final stage of the Inquiry will be for the Commissioner to prepare a Report and Recommendations to the Governor, as required by his Terms of Reference. In the course of doing so, he may form a provisional view from his consideration of all the material before him that there is information of possible corruption or other serious dishonesty on the part of a person or persons worthy of further and more searching investigation.  In that event, he will inform any such person in writing of that provisional view and invite his or her comments before finalizing the Report and Recommendations.
    
    
16. The Commissioner may, of his own volition and, if he considers it necessary, make an Interim Report to the Governor at any remaining stage of the Inquiry.
    

Laurance O'Dea, Secretary to the Commission

Sir Robin Auld, Commissioner

23rd December 2008

Provisional Programme of Inquiry Hearings
13th – 26th January 2009