Findings of corrupt conduct
The Commission found that NSW State Emergency Service (SES) Commissioner Murray Kear engaged in corrupt conduct by deliberately failing to properly investigate allegations against SES Deputy Commissioner Steven Pearce in relation to the entry into two contracts, the use of SES funds to purchase roof racks and electric brakes for Mr Pearce's car, the obtaining of an SES-paid vehicle for an SES manager and the potential falsification of diary entries because of his friendship with Mr Pearce.
The ICAC found that Commissioner Kear also engaged in corrupt conduct by dismissing Deputy Commissioner Tara McCarthy from her employment with the SES, substantially in reprisal for her making allegations about the conduct of his friend, Mr Pearce. These included the allegations concerning the circumstances in which the SES had entered into the two contracts, Mr Pearce's misuse of SES funds to purchase roof racks and electric brakes for his car, Mr Pearce's alleged misuse of his SES credit card and the alleged fabrication of diary notes.
Recommendations for prosecutions
The Commission must seek the advice of the Director of Public Prosecutions (DPP) on whether any prosecution should be commenced. The DPP determines whether any criminal charges can be laid, and conducts all prosecutions. The Commission provides information on this website in relation to the status of prosecution recommendations and outcomes as advised by the DPP. The progress of matters is generally within the hands of the DPP. Accordingly, the Commission does not directly notify persons affected of advice received from the DPP or the progress of their matters generally.
The Commission is of the opinion that the advice of the DPP should be obtained with respect to the prosecution of Murray Kear for an offence under section 20 of the Public Interest Disclosures Act 1994 (the PID Act) of taking detrimental action in reprisal for a person making a public interest disclosure.
A brief of evidence was provided to the DPP on 10 September 2014. On 3 February 2015, the DPP advised that there was sufficient evidence to charge Mr Kear with one charge of taking detrimental action in reprisal for a person making a public interest disclosure. The trial commenced on 12 October 2015 and was adjourned to 8 February 2016. On 16 March 2016, Mr Kear was acquitted of the charge. Following the trial, Mr Kear’s legal representative made an application that the DPP pay Mr Kear’s legal costs in the proceedings. On 25 May 2016, the application was granted and the DPP was ordered to pay Mr Kear's legal costs in defending the charge.
Recommendations for disciplinary action
The Commission is of the opinion that the minister for police and emergency services should give consideration to the taking of action against Mr Kear for disciplinary offences of misconduct with a view to his dismissal. The offences relate to his misconduct in terminating the employment of Ms McCarthy and deliberately failing to appropriately investigate allegations concerning Mr Pearce because of his friendship with Mr Pearce.
Mr Kear resigned as Commissioner of the SES before consideration was given to taking disciplinary action against him.
Recommendations for corruption prevention
The Commission has not made any corruption prevention recommendations in this report. One of the major issues identified during the investigation was Commissioner Kear's failure to properly identify and manage the conflict of interest arising out of his friendship with Mr Pearce. The identification and management of conflicts of interest are key anti-corruption issues and have been discussed in a number of previous ICAC reports.
Issues concerning failure to appreciate, or adhere to, the requirements of the Public Interest Disclosures Act 1994 (the PID Act) are addressed through ICAC corruption prevention workshops. The NSW Ombudsman provides information, advice, assistance and training to public authorities on public interest disclosures and the operation of the PID Act.