Kazal challenges ICAC over corruption finding - Sydney Morning Herald

Court sequel ... Charif Kazal arrives at the inquiry in August 2011. Photo: Peter Rae

Powerful Sydney businessman Charif Kazal has taken the Independent Commission Against Corruption to court in a bid to overturn its finding that he engaged in corrupt conduct by striking a secret deal with a senior government official to secure the lease for an extremely valuable property in The Rocks.

In a case with potential ramifications for the ICAC inquiry into alleged corruption by former NSW politicians, including Eddie Obeid, Mr Kazal claims that the commission exceeded its authority when it publicly declared that his conduct in 2007 towards former Sydney Harbour Foreshore Authority official, Andrew Kelly, was corrupt.

In December 2011, ICAC Commissioner David Ipp found that Mr Kazal sought to improperly influence Mr Kelly by holding out the prospect of a $360,000-a-year job in the United Arab Emirates, and paying him $11,170 for his flight and accommodation for a trip to the UAE in May 2007.

This trip took place just months before Mr Kelly and Mr Kazal signed a lease on 100 George Street, a multi-storey heritage building the Kazal family has since turned into a massive nightclub, Club 100.

However, Mr Kazal's barrister, Robert Sutherland, SC, told the NSW Supreme Court on Tuesday that, while Commissioner Ipp made strong adverse findings against his client, he also made a specific declaration that the matter should not be referred to the NSW Director of Public Prosecutions for criminal investigation because there was not "sufficient admissible evidence to make out the element of the offence".

Under the Independent Commission Against Corruption Act, Mr Sutherland argued, a Commissioner may only find that someone has engaged in corrupt conduct if that conduct could constitute a criminal offence, a disciplinary offence, or a reasonable ground for dismissal from public office.

The lack of admissible evidence in Mr Kazal's case meant that his conduct did not meet this test.

"We are talking about a position where a person has their reputation destroyed, their business operations put at peril, and where they are effectively a politically exposed person as a consequence of findings that don't even warrant referral to the DPP," he said.

Mr Kazal is seeking a declaration by the Supreme Court that the ICAC's findings were made without jurisdiction and were therefore invalid, and, further, that they were wrong in law.

However, the barrister for ICAC, Todd Alexis, said that Mr Kazal's argument was founded on "a misconception of ICAC's functions under the Act" and the standard or proof that is applicable when exercising those functions.

The ICAC was not required to establish facts beyond reasonable doubt, as is required in a criminal trial, he said, but merely on the balance of probabilities.

"It forms no part of [the] ICAC's role to adjudge criminal guilt in accordance with the criminal standard," he said in his written submissions to the court.

"The scope of the powers which the legislature has conferred on ICAC demonstrates that it did not intend to constrain ICAC by reference to the rules and procedures that ordinarily constrain courts."

He also noted that the ICAC was not required to take people's business reputations into account when carrying out its investigations and public hearings, which were conducted in order to uncover corruption.

After hearing submissions from the parties, Justice Ian Harrison reserved his decision.