#icac Watson is on the point of corralling Tinkler in the questioning of Tinkler. Very clever.
— Joan Evatt (@Boeufblogginon) May 16, 2014
Law students should have been at the ICAC hearing on Friday afternoon when Nathan Tinkler was being questioned. They would have seen a fine example of corralling a witness and one of the best ‘good cop, bad cop’ scenarios presented in real life rather than a scripted drama.
There are many reasons why these current investigations at ICAC are proving so successful. One that doesn’t seem to get much of an airing is the effective working relationship between the Commissioner, Justice Megan Latham and Geoffrey Watson SC, Counsel Assisting.
This was never more evident than during the examination of Nathan Tinkler last Friday.
Justice Megan Latham is a petite woman with an unprepossessing demeanour. She has a ready wit, is quietly spoken and has a brain as sharp as any bacon slicer. She is highly regarded within legal circles who frequent the Supreme Court of New South Wales. Any woman who has achieved her level of success in the law has to be at the very top of the tree.
Geoffrey Watson has a formidable reputation as an advocate. His role within ICAC is as an attack dog, and they could not have picked a better one. Any reservations that may have been made on his appointment to these enquiries have long disappeared as he continues to claim the scalps of senior politicians in the NSW Parliament. Watson is portly, pugnacious and focused on achieving the outcomes that he sees benefiting the state of New South Wales.
There was much anticipation of Nathan Tinkler’s appearance before ICAC. Part of this anticipation came from the fact that Tinkler has a certain reputation for being difficult. You need only ask anyone in the racing industry who has had anything to do with him. He is generally not liked.
He is also well known for not handling anyone in authority. The last time anyone told Nathan to do anything would have been at high school or at Tafe where he got his electrician’s qualification.
The prospect of seeing Nathan Tinkler very much out of his comfort zone doing battle with Geoffrey Watson who is very much in his comfort zone was tantalizing if you like high drama.
Mr Tinkler’s appearance before ICAC involved a little bit of gamesmanship. He was called but not required on Thursday, then called just before lunch on Friday and wasn’t present. A few spitty words from both the Commissioner and her Counsel Assisting reminded everyone who was in charge.
“MR SPERRY: …we had an arrangement with the Commission that Mr Tinkler would be available from 1:30pm this afternoon.
MR WATSON: Which Commission was that?
MR SPERRY: We, we had —
MR WATSON: Certainly not this one.
THE COMMISSIONER: Did you speak to someone, Mr Sperry?
MR SPERRY: Yes, my principal Mr Koops did. In fact I believe it was —
THE COMMISISIONER: You don’t know who Mr Koops spoke to on the Commission staff?
MR SPERRY: Mr McKenzie I believe.
MR WATSON: And it wasn’t accepted, it wasn’t agreed. Just get him here; he can’t be far away.
THE COMMISSIONER: Is he very far away, Mr Sperry?
MR SPERRY: I have instructions, Commissioner, that he is close but whether the Commission —
THE COMMISSIONER: I was told he was across the road.
MR SPERRY: whether the Commission’s time would be better served to take an early adjournment for lunch and guaranteeing that Mr Tinkler will be able to appear first thing after lunch. …
THE COMMISSIONER: All right. Well Mr Sperry, I think, I think the preferable thing is if you could get in contact with your client immediately and tell him that he’s wanted now because every moment is precious…”
Within minutes Mr Tinkler arrived, was sworn in and the games began.
Usually in such hearings the focus of all concerned is on what is said and how such evidence is given. What I found absolutely fascinating was the human dynamic between Watson, Tinkler, Commissioner Latham and Mr Koops, Tinkler’s brief.
Nathan Tinkler immediately recognised Geoffrey Watson as his main antagonist while the Commissioner was a little lady sitting like a sparrow high above on this huge bench, as being less threatening. From the beginning of his giving evidence he responded to Watson’s questions aggressively, dismissively and abruptly. Examination of Mr Tinkler quickly descended into two somewhat portly bulls locking horns.
Watson asked numerous questions of Tinkler about what he expected to get in return for his donations to the National Party.
MR WATSON: And then you go on to say that ‘We had a bunch of deadbeats before’, I presume that’s the Labor Party?
MR TINKLER: That’s right.
MR WATSON: ‘And a bunch of pricks now’, I presume that’s the Coalition?
MR TINKLER: (No Audible Reply)
MR WATSON: Isn’t that right?
MR TINKLER: I agree.
MR WATSON: Okay. You’ll have to speak into the microphone, you’re softly spoken Mr Tinkler. Now what I want to go to is the message that you sent where it says ‘I donated to the Nats’.
MR TINKLER: —yes.”
Mr Tinkler later commented to Mr Watson who was revisiting the reason behind donations to the Nationals with the observation “Jeez, I’m starting to see why this has been going for three weeks. I said to you before, I donated to the Nationals, because I’m a supporter of the National party.”
Watson in these hearings has proved himself to be a past master at corralling the witness. Corralling is a very basic cross-examination technique used by lawyers to take their witness down a series of garden paths until they arrive at a predetermined destination. This involves constant repetition of questions usually phrased in a myriad of different ways. It also involves a combination of bullying, badgering, cajoling and humouring the witness. In any other court obvious signs of corralling will be objected to by legal opponents. In inquisitional enquiries such as a Royal Commission, an ICAC or even a coronial inquest, corralling becomes a standard interviewing technique.
The Commish orders the Tink to answer the questions. "Even if it's the same thing six times," he whines. #ICAC
— Kate McClymont (@Kate_McClymont) May 16, 2014
Tinkler’s legal representative, Mr Koops, was up and down like a yo-yo strenuously objecting to many of the questions Mr Watson kept putting to his client as being “badgering” or “repetitive”. But ICAC is not a normal court where adversarial rules determine how the game is played. Its inquisitional approach is designed to get to the truth of whatever subject is being investigated.
Mr Koops’s objections were noted, and then quite frankly, ignored. The working relationship between Latham and Watson would then come into play. Occasionally Watson will go over the top. The Commissioner then tends to step in, in part covering Watson’s back, but also to move the evidence forward. Latham in her quietly spoken way would shut up both Watson and Koops, turning to Mr Tinkler and asking the very question Mr Watson had previously asked, often as a statement rather than a question.
#icac Watson & the Commish are working well in tandem. Tinkler refutes everything Watson says, & is more amenable to Commish. Fascinating.
— Joan Evatt (@Boeufblogginon) May 16, 2014
MR KOOPS: With respect, I object.
THE COMMISSIONER: Can we, can we, can we stop.
MR KOOPS: He’s just badgering the witness.
THE COMMISSIONER: Excuse me.
MR KOOPS: That’s what’s happening.
THE COMMISSIONER: Can we stop talking over the top of one another? Just take a seat please Mr Koops. Mr Tinkler, I understood you to say a short time ago that your view was that Miss McKay, as you put it, was dead in the water and you didn’t have any reason to oppose her campaign because as far as you were aware, politically she had no chance of real election.
MR TINKLER: Agreed.
THE COMMISSIONER: That was your view.
MR TINKLER: Yes
THE COMMISSIONER: Right. Yes, go on, Mr Watson.”
Tinkler’s response to Latham was interesting. Tinkler does not handle women in authority well; to be honest he doesn’t handle any authority well but especially women in authority. He is obviously fully aware of this and strived to appear accommodating by deferring to Commissioner Latham whenever she intervened. In this way the Commissioner was able to more readily gain admissions from Mr Tinkler. It was a great ‘good cop, bad cop’ routine of which Mr Tinkler seemed to be totally unaware. At the end of the day Tinkler had been effectively corralled.
Latham and Watson had done a good day’s work.
For daily reports of ICAC’s goings on please read the Sydney Morning Herald. Their team of journalists, especially Kate McClymont and Michaela Whitbourn, are covering this story so thoroughly you’ll not miss a thing. It’s a seminal moment for the SMH – their ‘Washington Post covering Watergate’ moment in the sun.
Below are two links. The first is on Nathan Tinkler in the ICAC hot seat, the second a reaction to an ICAC piece by Kate McClymont.