Ms McColl, making clear that what was contained in the Report were findings of fact, including witness assessments, of the Commission:
Witness credibility
2.37. During this investigation, the Commission heard evidence from a large number of witnesses, some of whom gave evidence on more than one occasion. Aside from independent or objective evidence against which the credibility of witnesses may be assessed, including contemporaneous notes or other records – such as lawfully intercepted telephone calls, emails and text messages, evidence given by disinterested witnesses, the incontrovertible facts and the probabilities involved – the Commission adopts assessments made by the presiding Assistant Commissioner, the Hon Ruth McColl AO SC, who has had regard to other factors in determining the credibility of a witness and the evidence they gave. These factors include the responsiveness or otherwise of answers, a reluctance or otherwise to make appropriate concessions, whether the evidence given was direct or obfuscatory, and whether the witness was cooperative or argumentative.
2.38. Assessments as to witness credibility and reliability are important factors for the Commission to consider in properly weighing the evidence and making findings of fact that are available on that evidence. Witness assessments are included in the relevant chapters of this report. (Emphasis added.)
64 The Commission declined to make a global finding about the credibility of the applicant, instead making the following more general observations:
10.41. Ms Berejiklian gave evidence over a number of days in private and public hearings. In the Commission's view, it would not be a useful approach to her evidence to make a global finding of the nature for which Counsel Assisting contends. It is true that Ms Berejiklian was an unsatisfactory witness in many respects. Some of that may be explicable on the basis of the period of time over which the evidence ranged, and a tendency to view the witness box as more like a husting than a place from which to respond directly to the question.
10.42. Nevertheless, in such circumstances the Commission has had regard to the objective facts proved independently of Ms Berejiklian's testimony, in particular by reference to the numerous documents, the numerous records of communications between herself and Mr Maguire, to the extensive evidence of other participants in the events and also to Ms Berejiklian's motives and to the overall probabilities. (Footnote omitted; emphasis added.)
65 The applicant contends that it cannot be said with any confidence whether the witness assessments adopted or otherwise taken into account by the Commission in "making" the Report were made by Ms McColl in her capacity as an Assistant Commissioner as opposed to being made in her subsequent capacity as a consultant. On the applicant's argument, it was accepted that there would not have been any "problem" with the validity of findings and opinions such as those expressed above, which rely on such assessments, if the evidence had been capable of establishing that Ms McColl had made those assessments at a time when she was an Assistant Commissioner, and, presumably, if she had also continued to be available to provide assistance to the Commission in that capacity up to the time when the Report was furnished to Parliament.
66 To that end, senior counsel for the applicant submitted:
It is the Commission who makes a report, and an Assistant Commissioner who may be required to conduct public hearings and may be required to assist the Commission in general, but obviously therefore including [in the] very important function of making reports.
By statute [there is] … a person that Parliament contemplates may form the impressions that the person conducting the hearing may form, but [those impressions] are not available to be formed by those who didn't conduct the hearing. But by statute, that assistance can be given. It's an assistance as Assistant Commissioner.
