For the purposes of an investigation, the Commission may take evidence from a witness in public (a public inquiry) or in private (a compulsory examination).
The ICAC produces an informational document for witnesses, outlining the key considerations, rights and responsibilities involved when appearing before the Commission.
Appearing before the ICAC
The summons sets out the date and time when you must attend and whether you are required to give evidence in a public inquiry or a compulsory examination and/or produce documents.
ICAC states that:
You must do everything your summons asks you to do. You may be committing an offence under the ICAC Act if you do not do what is required.
Further offences may be applicable in the following scenarios:
- Failing to provide any required documents at the time and date specified in the summons without reasonable excuse
- Failing to comply with non-disclosure restrictions
When giving evidence, if you believe that answering any question or producing any document may be incriminating, you may object.
If you object to answering a question or producing a document, you must still answer the question or produce the document, however, the evidence cannot then be used against you in any subsequent criminal or civil proceedings, except in relation to prosecutions for offences under the ICAC Act.
Compulsory examinations vs. public inquiries
Further information on ICAC public inquiries is outlined here.
The Commission does not make available to a witness documents proposed to be put to the witness in a compulsory examination prior to that compulsory examination.
Evidence given in a compulsory examination is private and usually subject to a nonpublication direction. This means that a witness cannot talk to others about the compulsory examination, their evidence, or the fact that a compulsory examination has occurred. The witness can however talk with their legal representative.
Benefits of witness cooperation
A person can cooperate with the ICAC by fully reporting any corrupt conduct at the earliest possible time; honestly and completely disclosing all relevant information; providing voluntary assistance during an investigation; and giving evidence in the criminal prosecution of others arising from the investigation.
Potential benefits available to those who fully cooperate with the Commission include:
- Acknowledgement of assistance in a Commission report
- Discretion not to make corruption findings
- Discretion not to recommend consideration of prosecution
- Discretion to recommend to the NSW Attorney General that a person be granted an indemnity from prosecution
- Assistance to a person convicted of an offence – the Commission can provide a letter to the relevant court setting out details of the cooperation and request the court take that cooperation into account when imposing the sentence.
If the safety of a person or their family may be compromised, or the person may be subject to intimidation or harassment due to assisting the Commission, the Commission may arrange to protect the person by providing protection, whether through providing personnel and facilities or through other means.
The ICAC reimburses witnesses for reasonable expenses incurred in attending a compulsory examination or public inquiry (other than legal expenses). These expenses include loss of income, transport costs, meals & accommodation.
Witnesses are generally allowed to be represented by a lawyer. It is highly recommended to seek a lawyer experienced in representing clients appearing before the ICAC, due to the complex nature of these investigations.
An experienced lawyer can assist if you have any questions about the summons or attending to give evidence, and can also provide advice regarding whether or not you should object to producing an incriminating document.