STATEMENT BY MR BRIAN BURKE CONCERNING THE

WESTERN AUSTRALIAN CORRUPTION AND CRIME COMMISSION

28 DECEMBER 2008

In the attached Media Release I outline the need for an independent review of the Corruption and Crime
Commission, and I detail the concerns I have with the Corruption and Crime Commission’s behavior.

I have endured everything that has been thrown at me and my family by the CCC without complaint and
without turning away.

I accept full responsibility for all of my actions and while I believe I have done nothing wrong I also
believe the CCC is an organization out of control that wants to place itself above Parliament.

The CCC seeks to silence its critics, principally the Parliamentary Inspector Mr McCusker who is widely
acknowledged as an independent Officer of the Parliament with impeccable credentials and no vested
interest in the outcome of any complaint against the CCC.

At the same time, the CCC creates an atmosphere of extreme fear as it destroys the reputations of
exemplary Public Officers who are denied proper representation at high-profile public hearings that are
deliberately designed to gain maximum media coverage.

The CCC has ruined the reputations and lives of too many people subsequently judged innocent by
independent review.

BRIAN BURKE

ENQUIRIES: BRIAN BURKE TEL (08) 9245 2390

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MEDIA RELEASE
Inquiries: Brian Burke Tel: 92452390

The Corruption and Crime Commission should be subjected to an independent review, free of political
influence.

The review should be carried out by a senior member of the judiciary from another state. The fear
surrounding the activities of the CCC mean it is hopeless to expect members of parliament on the
oversight committee of the parliament to shrug off the political pressures on them to review the CCC
satisfactorily.

The need for an independent review is underlined by this week’s secret attempt by the Commission to
stop the Parliamentary Inspector Malcolm McCusker reporting on the complaint by Cockburn Mayor
Stephen Lee.

The Commission’s repeated mistakes and its attempts to undermine the Parliamentary Inspector
highlight the dysfunctional nature of its relationship with Mr McCusker who is appointed by the
Parliament to oversee the CCC and of its operations. Mr McCusker is an independent officer of the
Parliament with an impeccable reputation and no vested interest in the outcome of any review.

In its campaign against Mr McCusker, the first reaction of the CCC was to ignore the findings of Mr
McCusker and his recommendations to improve the CCC’s processes. Then the CCC tried to curb him by
publicly challenging his powers and asking Parliament to restrict his activities. When that failed, the CCC
continued its public campaign against Mr McCusker finally asking the Supreme Court to stop him
reporting. That failed and now the CCC says it will take further, different action in the Supreme Court
because it says Mr McCusker is acting unlawfully. Mr McCusker is an independent officer with an
impeccable reputation and no vested interest in the outcome of reviews. Further, the Chief Justice
noted that to restrain the publication of Mr McCusker’s report on Mr Lee would restrain freedom of
speech and public debate about the efficacy of the CCC.

Why is the CCC afraid of scrutiny?

Disturbingly, the first application to the Supreme Court was made in secret by the Commission without
even telling Mr McCusker or any other interested party, including Mr Lee. In a Press Release, the
Commissioner, Mr Roberts Smith admitted the application was in secret but then said in his Press
Release: “However, the application was never going to remain secret…”

Rejecting the CCC’s application, the Chief Justice found there was ‘no justification’ for proceeding
without telling Mr McCusker.

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And, he said, the application raised serious questions of contempt of Parliament because Mr McCusker
is an officer of the Parliament and the CCC’s application sought to stop him doing his job.

The Chief Justice said that to restrain publication of Mr McCusker’s report on Mr Lee’s complaint would
restrict freedom of speech and public debate about the CCC. Further, the Chief Justice noted that there
was a “very serious question as to whether any relief of the kind sought [by the CCC] could ever be
granted”.

This is an incredible waste of public money.

And the actions of the CCC are even more extraordinary considering the current Commissioner is a
former Supreme Court Judge.

When Mr McCusker’s Report on Mr Lee’s complaint was made public it became clear why the CCC tried
to stop its publication. The Report overturned the CCC’s findings against Mr Lee saying it was contrary to
common law principles and unfair to Mr Lee.

In seeking to stop Mr McCusker from reporting, the CCC put forward reasons that it ignores in its own
dealings.

The CCC complains in its application against Mr McCusker of damage to its own reputation, errors in law
and fact and the denial of due process. All of the same allegations have been made against the CCC and
variously upheld by independent enquiries, the Courts and the Parliamentary Inspector.

In other words, when the CCC tried to stop Mr McCusker in the Supreme Court it argued that the report
into Mr Lee’s complaint would damage the CCC’s reputation so that it might never be restored even if
the report was incorrect.

Yet this is exactly how the CCC behaves.

The truth is that the Commission has destroyed the reputations of many West Australians by subjecting
them to biased public hearings designed to attract maximum publicity at which no one is allowed to be
properly represented and where those appearing cannot produce evidence, question witnesses or put
forward any defence. In the last hearings that the CCC held in public, when many reputations were
trashed, the CCC made findings of serious misconduct against respected Public Officers only to see in
every case those findings overturned by subsequent inquiries by the Parliamentary Inspector and by
independent examinations at senior levels of the public service (which, in some case were mandated by
the CCC itself).

In the only case to reach court, charges against a senior Public Officer, Mike Allen, were dismissed.
Contrary to the Commission’s claims, Mr Allen was found to be a reliable witness who told the truth.

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Despite repeated independent review and the mountain of irrefutable evidence clearing Public Officers
against whom it has made findings, the CCC has never withdrawn an allegation (even after being proved
wrong) in circumstances where it refuses to put new evidence to support its allegations or rebut the
findings of independent reviews.

Unusual aspects of the Commission’s operations since the appointment of the current Commissioner
include:
1. The Parliamentary Inspector has counseled the CCC to investigate the role and actions of a
senior investigator with a view to charging him with misconduct. The CCC has held no
investigation and the senior officer continues to perform his role;
2. The insistence of Senior CCC Investigators that they have legal representation if they are
questioned by Mr McCusker;
3. Examples of crucial exculpatory evidence being deliberately ignored while evidence favourable
to the CCC’s assertions is misleadingly presented in public hearings and highlighted in public
reports;
4. Complaints raising doubts about the basis for the telephone taps central to the CCC’s work
including anonymous claims that CCC investigators have admitted basing applications on false
grounds;
5. The refusal of the request by Mr McCusker that he be allowed to examine the applications for
telephone taps;
6. Findings by Mr McCusker that the CCC’s allegations against individuals were not logically based,
not supported by the evidence before the CCC and not up to an evidentiary standard that would
hold up in a Court;
7. Denial of due process, in contravention of the common law, by not allowing individuals to
comment on proposed adverse findings. This is also a breach of the CCC’s Act. In some cases,
the CCC has only provided such material after protracted legal dispute (at enormous cost to the
individual);
8. Admissions in court that witnesses called before the Commission are deliberately told as little as
possible about the matters under examination increasing the chances of charges of misleading
evidence;
9. On a number of occasions, the CCC has refused requests for sufficient time to answer very
serious allegations it proposed to include in its reports including instances when it allowed less
time than the Parliamentary Inspector gave it to consider his current report.

Throughout this process, the impact on people and their families caught up in the CCC’s web has been
devastating.

Among the many distressing impacts of the activities of the CCC are:

1. The time that the Corruption and Crime Commission’s inquiries are taking. Married to the stress
imposed by the Commission’s work, the result is a dreadful impact on key ‘suspects’ and their
family’s life.

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 The production of periodical partial reports punctuates the time with peaks of heightened worry
and throughout the whole time there is the pressure of telephone interception and other
surveillance without there ever being raised evidence of any crime that would properly found
the application for and granting of warrants for the use of these powers.

2. Never knowing when (if ever) the surveillance will end.

3. The cost of responding adequately to the CCC is horrendous. In most cases it confiscates the
basic ability to defend oneself and there appears no avenue to obtain legal or other aid.

4. The fact that – apart from the Parliamentary Inspector – now besieged and depicted as the
enemy of the Commission which says he is acting unlawfully – there is really nowhere for an
aggrieved person to turn. Falling back on: “Well, that’s what the Act says” is hardly satisfactory.

5. Damaging allegations flowing from inquiries into non-Public Officers (which are not authorised
by the Act) that are only very thinly disguised by tenuous reference to Public Officers as the
hook on which the inquiry hangs;

6. The repeated inclusion of comment and material adverse to non-Public Officers even in
circumstances where there is no finding of misconduct against anyone.

7. The CCC’s failure to put to witnesses very damaging evidence that it later produces in its reports.
And the practice by which it admits and justifies doing this.

8. The way the CCC uses the media while denying any responsibility for what is reported. The most
blatant example of this is the wrong Media Release put out by Mr Silverstone after the Smiths
Beach Inquiry and his most ungracious comments following the acquittal of Mike Allen when he
said he thought the Commission’s case was strong.

9. Relying on quotes from highly political and very unreliable sources for authority.

10. The contradiction in the approaches adopted by different Commissioners.

11. The lack of any real means of reassessment or review as might be argued is required following
the overturning of almost all of the key findings in the Smiths Beach inquiry.

In my own case, as a direct result of the CCC inquiries:

1. The business I had with Julian Grill has collapsed and I am excluded from earning an income.

2. My legal costs so far exceed $250,000 with the likelihood that they will be at least double that
amount by the time things end.

3. The level of media condemnation has made life extremely difficult and has adversely impacted
on my children who have been told that any political aspirations they had are now unrealistic.

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 4. Friendships have been destroyed not because the affection has disappeared but because the
harsh media attention makes life almost impossible. The Commission says it is not responsible
for the media reporting of its inquiries but it is clear that the selective use of public hearings and
the release of wrong reports will always excite headlines when the detail disclosed is very
damaging, often wrong and flimsily based and is released in circumstances where witnesses and
others have scant protection; and

5. Generally, I am not treated as fairly by the Commission or in the same way as others involved in
its investigations.

In all of the circumstances, it is difficult to see a penalty as severe as that my family and I have suffered
being imposed on a citizen guilty of a most serious crime and it is surely reasonable to expect that there
will be an end to these matters before too long.

And while the CCC continues its crusade to wrongly condemn senior Public Officers and to destroy Mr
McCusker, not a single investigation has been launched into organised crime in Western Australia.

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