The train wreck that the South Australian ICAC case against Mr John Hanlon became could hardly have occurred at a better time to illustrate the potential dangers standing commissions against corruption can present to citizens.

The Hanlon case seems to encapsulate every element of what lawyers have for years said can go wrong in corruption commissions. It also comes as the Federal Government launches itself toward the creation of a Commonwealth commission against corruption. The name Commonwealth Integrity Commission is almost beguiling, but it is not fooling those who have experienced the bad side of corruption investigations, nor lawyers who represent those subject to investigation or who are charged.

In every state and territory it seems possible to point to a corruption commission balls-up, each example involving a person whose life has been scrutinised for alleged criminality, each time sapping from that person their joy of life and indeed on occasion even their will to live. The destruction caused to people is immense. Even when there is low-level wrongdoing, the sledgehammer that is a standing commission against corruption can blow a matter completely out of proportion, because it seems at times all perspective can be lost by over-zealous investigations.

If you could write a textbook on such an example, Mr Hanlon’s case might be it. Incredulous lawyers have been looking on bewildered, as no doubt has the public, as the seemingly doomed prosecution unravelled before our eyes. The fact that this matter ran as far as it did now seems more of a cause for concern than Mr Hanlon’s alleged abuse of public office ever was.

Whatever led to the prosecution proceeding, public confidence in the function of our state ICAC must now be at an all-time low. That is the inevitable outcome when statutory power is used incorrectly or unwisely.

What exactly occurred then in this case?

Mr Hanlon was charged with an abuse of public office for taking a taxpayer-funded trip to Germany, when he was allegedly said to be on a private holiday with his wife and daughter. Mr Hanlon strenuously denied those allegations at every stage of his matter.

On the way to trial, the charges were initially dismissed after no case was found to answer by a Magistrate at the committal stage of the proceedings. To explain, all criminal proceedings in South Australia are commenced in the Magistrates Court but more serious matters are committed from the Magistrates Court for trial in superior courts, either the Supreme or District Courts.

The Magistrates Court commits a defendant to a superior court by way of a committal hearing, at which an accused person is entitled to argue that there exists insufficient evidence for a case to be found against them. The bar is high. A Magistrate certainly doesn’t have to grapple with or consider whether there exists proof beyond reasonable doubt, as a jury must. What a Magistrate considers is only that there is sufficient evidence to place an accused on trial.

In the Hanlon case, the Magistrate found there was no case to answer. That was telling. It is not very often that a no case is found by a Magistrate. But more telling still was the fact that the prosecution agreed with the defence! That’s right – after the defence made the no-case submission, the prosecutor on the day agreed with the defence that there was insufficient evidence for the Magistrate to find a case to answer. It is unclear whether this was intended by the DPP himself or not. However, that was the outcome and Mr Hanlon and his then co-accused were rightly jubilant. The case, it seemed, had ended.

Notwithstanding the outcome of the committal, there is still a way to get a matter before a superior court even after the finding of a no case. The Director of Prosecutions has the power to lay criminal proceedings directly in a superior court. It is called an ex officio indictment. That is what transpired in the Hanlon case. So it was that the matter continued in spite of the state of the evidence, in spite of the conduct of the prosecution at the Committal, and in spite of the Magistrates Court finding of no case. Mr Hanlon was arraigned and his matter was listed for trial anyway.

Before a trial commences in a criminal court, there can occur what is named a voir dire hearing. It is a hearing that calls evidence but without the presence of the jury. Its purpose is to determine before the trial proper commences the admissibility of evidence, if its admissibility is challenged by the defence.

At Mr Hanlon’s voir dire, what emerged was utterly damning of the manner in which this investigation had been conducted. First came the embarrassment that the entirety of the investigation conducted in Germany, where the alleged abuse of public office is said to have taken place, may have been conducted contrary to German law.

The issue played out like this. To interview German nationals in Germany, diplomatic approval is required. ICAC failed to obtain diplomatic approval, but not before having been warned about the issue not once, but twice: first by the consul general in Berlin and then by the Attorney-General for the Commonwealth of Australia. The prosecuting authorities also failed to obtain diplomatic approval to call German witnesses to give evidence in Australia.

Not content to leave the matter there, the DPP then variously attempted unsuccessfully to adjourn the whole trial and tender the affidavits of what witnesses had said to investigators into evidence. That is, to get the witness statements to form part of the evidence against Mr Hanlon – notwithstanding the failure to adhere to German law and to international protocols. The presiding judge declined. The evidence in its totality was excluded.

If you think the accused may have been fortunate, an alternative view is that what transpired points directly to a cultural problem at the ICAC. Imagine if another country’s foreign investigators were knocking on the doors of Australian citizens without approval. There would be outrage. Yet after repeated warnings, here was ICAC doing exactly that – waltzing around a sovereign foreign nation, taking statements from its nationals. Extraordinary.

The detail that the cost to taxpayers of the German stage of the investigation ($20,000) amounted to more than the entirety of the alleged benefit said to have been derived by Mr Hanlon from his German trip – the subject of his alleged criminality ($15,000) – is not directly relevant, but became just another awkward fact about the nature of this investigation in the eyes of the public.

However, much worse was to come. The duty of any and all prosecuting authorities in Australia is the provision to the defence of all evidence relevant to a case laid against an accused person. In the law, the terms inculpatory and exculpatory evidence are used; incriminating evidence that puts an accused ‘in’, and evidence that favours the accused and may get them ‘out’ of the allegation made. Thus the duty of the DPP was to produce to Mr Hanlon every piece of evidence collected, whether it helped or hindered the prosecution case.

In saying that, the DPP was captive of course to what ICAC had provided. The office of the DPP can only disclose what it has.

The Hanlon case was based on an allegation that in bringing his wife and his daughter to Germany, Mr Hanlon had created the sham that he was going to Germany for work purposes when, it was alleged, he was actually just enjoying a free trip at taxpayer expense. Central to the case and his defence was his persistent maintaining that he had in fact engaged in work activities, a fact refuted by the prosecution. He also explained from the outset that he had paid for his wife’s and daughter’s trips, that they had travelled independently of him, and that he had only seen them for a portion of their respective trips abroad.

Two days before the trial was to begin, the bombshell landed. The office of the DPP revealed that it had only just been provided by ICAC with a piece of exculpatory evidence that changed everything. It was the smoking gun. It made proof beyond reasonable doubt seem nigh impossible, and it came in the form of telephonic records. Mr Hanlon’s phone had picked up communications towers near to some of the places he had insisted he had visited for work purposes, and had insisted from the outset of his case. Incredibly, ICAC had had the evidence for years – evidence that appeared to confirm the very thing that Mr Hanlon had been saying from the get-go.

Worse still, the defence only ever knew of this evidence after it served the ICAC with a subpoena ostensibly for other purposes and found reference to ‘car charge records’, and asked what that evidence pertained to. Had the defence not stumbled on that evidence it may never have seen the light of day. There was almost, to put it plainly, a serious miscarriage of justice owing to the failure to make full disclosure of evidence.

The DPP discontinued the case the very next day, before the trial even started. Embarrassment hardly sums up this charade. It played out like a satirical British comedy.

What happened here remains a mystery. The ICAC has promised a review. SA-Best MLC Frank Pangallo wants a royal commission or at least Parliamentary hearings to get to the bottom of things. The hunter appears to have become the hunted.

What seems plain is that this matter should have never reached the point it did. A man’s life, that of his earlier co-accused and of his family have been derailed. As to the presumption of innocence in this case and increasingly in this country, we should all be concerned at what occurred here as a harbinger of the future. The presumption of innocence is certainly upheld in our courts, but is it always in the minds of our investigators and those who allege wrongdoing? There have been a number of recent matters, not only Mr Hanlon’s, in which some members of the public and the press have acted as if an allegation amounts in itself to proof beyond reasonable doubt.

The presumption of innocence is a cornerstone of not just our criminal justice system, but our democracy. It is something worth defending and fighting for. It is a legal right that is the true and tried foundation of our justice system.

The fatal mistake is to assume guilt and then conduct an investigation with the innocence of the accused already questioned. It is not naive to say that investigations should be investigations of fact, not presumers of wrongdoing. At their best, investigations are looking for truth, without a preconception about guilt. Good investigations restore one’s faith in the criminal justice system, and go a long way to avoiding catastrophes like the Hanlon case.

In considering that case we must accept that there is obviously a long way to go in terms of understanding quite why Mr Hanlon faced protracted criminal proceedings, when in hindsight the whole matter was unlikely to be proved and the office of the ICAC held the very evidence with which to conclude that all along. A travesty of justice? It would certainly seem so, but on behalf of the public of South Australia, we must know more in order to judge the nature and extent of the problem.

Our collective faith in our ICAC demands a transparent understanding of why an investigation occurred contrary to another country’s laws, rendering the entirety of the evidence collected there inadmissible. Further, why the singularly most important piece of exculpatory evidence which created a most obvious doubt about the prosecution case – telephone records that appear to corroborate the accused’s version and defence – were produced only days before the trial was to commence, and only after a tenacious defence fortuitously stumbled on reference to them after service of a subpoena. It is inexplicable. It is shocking.

This should not be happening to any Australian citizen. It is completely unacceptable. We are owed an explanation in order to ensure it should never occur in this way again. Yet lawyers who represent those investigated by corruption commissions know it will, and that we will be reading and watching something similar whenever and wherever a corruption commission exists, including the soon-to-be Commonwealth Integrity Commission.

In this state, the office of the ICAC that Parliament created has now been uncreated, or at least very much amended, a decision that was taken by every member of both Houses of Parliament in the last Parliament. Notwithstanding that, it is imperative for the current Parliament, and the government of the day, to facilitate an inquiry into this travesty.

John Hanlon has been to hell and back again at the hands of the state. What exactly is the state going to do about that?

Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.