Brian Burke is back in the news with the release yesterday of the Western Australian Corruption and Crime Commission (CCC) report into the Canal Rocks development at Busselton – the subject of a 4 Corners report earlier this year. The Australian newspaper reports on its front page this morning that Mr Burke and his lobbying business partner Julian Grill might face criminal charges as a result of the investigation by the CCC, although on my reading of the report it’s by no means clear that this will be the case. Particularly given the fact that the CCC has made no recommendations along those lines.

But if Mr Burke and Mr Grill are charged the question that must be asked is – can they get a fair trial in Western Australia? The CCC has unfortunately allowed its investigations into the activities of Mr Burke and Mr Grill in the Canal Rock development case and other matters to become a media free for all.

Last year when the Burke/Grill hearings were being held, the media and politicians worked themselves into a McCarthyist frenzy. Remember WA Premier Alan Carpenter running around sacking any minister who had contact with Burke? Ditto John Howard with former Environment Minister Ian Campbell. And we had Kevin Rudd slip sliding his way around why it was he was the star turn at a fundraiser organised by Burke.

The CCC itself made selected phone calls by Burke and Grill available to the media and the vast majority of its hearings were held in open court.

Even the headline in today’s Australian gives you a flavour of how the media has prejudged Burke – “Stain of Burke, WA Inc returns”, it screams.

Yet Mr Burke and Mr Grill remain, in relation to all the matters investigated by the CCC, innocent men. They have not faced trials in courts, only trials in the media and before the CCC where the rules of evidence are looser than they are in traditional courts. In fact section 135 of the CCC Act makes it clear that the CCC “is not bound by the rules or practice of evidence and can inform itself on any matter in such manner as it thinks fit.”

Given the reporting of the past 12 months, and no doubt future reporting on the outstanding Burke/Grill matters that the CCC is yet to finalise, one has to ask, could one find a jury of 12 people in WA today who haven’t already made up their minds about Brian Burke and Julian Grill? Probably not.