The NSW judiciary seem to be digging in to try to protect corruption in the legal fraternity in the Margaret Cunneen matter. We are now off to the High Court of Australia to see what they have to say. It is really the last stand by the judiciary as their own days of widespread corruption are coming to an end and they know it.

On Friday (5/12/14) NSW Crown Prosecutor Margaret Cunneen won an appeal stopping an inquiry by the NSW Independent Commission Against Corruption (ICAC) into allegations that Ms Cunneen acted corruptly. Cunneen and the 2 judges that found in her favour have achieved nothing except to damage the reputation of the NSW Supreme Court.

ICAC issued a press release within a few hour of the judgement which said:

“Today’s majority decision of the NSW Court of Appeal with respect to the NSW Independent Commission Against Corruption (ICAC)’s Operation Hale public inquiry fundamentally affects the scope of the Commission’s powers to conduct investigations into corrupt conduct.” (Operation Hale is the name given to the investigation into Margaret Cunneen)

“It is critical to the exercise of the Commission’s powers generally that the construction of section 8 of the ICAC Act is settled.”

“Accordingly, the ICAC will seek leave to appeal to the High Court of Australia.” (Click here to read more)

Background

It was announced in early November that ICAC would hold public hearings to investigate Margaret Cunneen in relation to allegations she tried to pervert the course of justice. It is alleged Cunneen advised her son’s girlfriend to fake chest pains to avoid being breath tested when she was in a car crash.

ICAC had been investigating Margaret Cunneen for several months, which was unknown to the public at the time, and summoned her to a secret hearing on the 1st of August 2014. (Click here to read more) Obviously the secret hearing with Cunneen did not go well for her and ICAC decided to have a public hearing into the whole affair.

Ms Cunneen, her son Stephen Wyllie and girlfriend Sophia Tilly instituted proceedings in the NSW Supreme Court to stop the ICAC investigation. (Click here to read more) The Chief Judge at Common Law, Clifton Hoeben, heard the case and dismissed it. (Click here to read a summary of the judgement)

Ms Cunneen, Mr Wyllie and Ms Tilley then appealed. The appeal succeeded with Justice Basten and Justice Ward upholding the appeal and Chief Justice Tom Bathurst who was the third judge dissenting.

As it currently stands we have 2 judges dismissing Ms Cunneen’s case and two upholding it. Now it is in the hands of the High Court of Australia to decide the matter.

The legal argument

What Margaret Cunneen’s barrister argued in court was total garbage and the two Judges who upheld the case should be ashamed. The argument was a technicality that what Cunneen was alleged to have done did not fall within the laws that give ICAC the power to investigate corruption. If you look at section 8(2) of the Independent Commission Against Corruption Act 1988 it is so broad it covers everything and anything.

(2) Corrupt conduct is also any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority and which could involve any of the following matters:

(a) official misconduct (including breach of trust, fraud in office, nonfeasance, misfeasance, malfeasance, oppression, extortion or imposition), (b) bribery, (c) blackmail, (d) obtaining or offering secret commissions, (e) fraud, (f) theft, (g) perverting the course of justice, (h) embezzlement, (i) election bribery, (j) election funding offences, (k) election fraud, (l) treating, (m) tax evasion, (n) revenue evasion, (o) currency violations, (p) illegal drug dealings, (q) illegal gambling, (r) obtaining financial benefit by vice engaged in by others, (s) bankruptcy and company violations, (t) harbouring criminals, (u) forgery, (v) treason or other offences against the Sovereign, (w) homicide or violence, (x) matters of the same or a similar nature to any listed above, (y) any conspiracy or attempt in relation to any of the above. (Click here to read more)

The laws being broad is the way it needs to be so that it gives ICAC the power to leave no stone unturned in investigating corruption.

The 2 judges who upheld the appeal said:

“The alleged conduct could amount to an attempt to pervert the course of justice but it was not “corrupt conduct” within the meaning of s 8(2) as it could not be said a police officer (or other public official) might be led to exercise his or her powers improperly”.

That is garbage and will be overturned by the High Court otherwise the High Court will embarrass themselves.

Chief Justice Bathurst said: “Conduct will have an adverse effect where it limits or prevents the proper performance of a public official’s functions. The alleged conduct fell within the meaning of s 8(2) as it had the potential to divert the police officer from investigating a suspected offence”.

What Bathurst said is basic logic and common sense. Justice Basten and Justice Ward who upheld the appeal knew they were handing down a dodgy judgement. The positive of it going to the High Court is that it will greatly limit the scope for these types of dodgy appeals in the future. If it doesn’t the government will have to change the laws so it does.

Sleeping judge OK says NSW Court of Appeal

The NSW Court of Appeal in the Cunneen matter is the same court that in 2008 said a sleeping judge is OK. That was the infamous sleeping Judge Ian Dodd matter and it needed to go to the High Court of Australia before sense prevailed that a sleeping judge is not OK. (Click here to read more) So it should not surprise people that the Cunneen matter is going to the High Court.

Margaret Cunneen loses in the court of public opinion 

The question everyone is now asking is: If Margaret Cunneen has nothing to hide then why is she spending big dollars to stop the inquiry?

Once it became public that Cunneen was under investigation by ICAC she only had one chance to save her reputation and that was to meet the allegations head on in the public inquiry. By doing what she has done she has left a huge question mark that is too big for her to continue as a Crown Prosecutor.

Margaret Cunneen’s skeletons in the closet

Margaret Cunneen made a total fool of herself when she gave evidence a few months ago at the Royal Commission into Institutional Responses to Child Sexual Abuse. She was called as a witness because she gave advice in 2003/04 to a QLD prosecutor that was used to justify not prosecuting swimming coach Scott Volkers for molesting teenage female swimming students.

The advice was scandalous. Ms Cunneen called one complaint “trivial” which came under extreme criticism at the Royal Commission (Click here to read) and Cunneen clearly went out of her way to defend Scott Volkers and attack the credibility of the girls who had been abused (Click here to read more or watch the video)

Margaret Cunneen’s boyfriend Stephen Fletcher

It was reported last month that Ms Cunneen’s boyfriend is looking at being charged with criminal offences:

“A report by the Police Integrity Commission inquiry has found that Mr Fletcher engaged in fraud when he used the identities of a string of police officers to hide his gambling activities with a number of betting agencies.”

“Criminal charges have also been recommended against another gambler, Darren Azzopardi, and two police officers, former homicide detective Tony “Soup” Williams and Marc Smith, who recently resigned from the police force.”

“Crown Prosecutor Margaret Cunneen, a close personal friend of Mr Fletcher’s, introduced Detective Williams to Mr Fletcher and the prominent gambler also employed Ms Cunneen’s son, Stephen Wyllie.” (Click here to read more)

You can make one or two allowances for people but for Cunneen to continue as a Crown Prosecutor the government will have to make quite a few allowances which is a few too many.

If Premier Baird does not handle the ICAC / Cunneen matter the right way it will make him look weak on corruption. If the High Court upholds the appeal he needs to move fast to change the laws.

Premier Baird also needs to take action on Margaret Cunneen irrespective because as we know “a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. R v Sussex Justices, ex p McCarthy (Click here to read more) And like a lot of people who follow the judiciary and legal fraternity I no longer have any confidence in Margaret Cunneen.

There are quite a few more rounds to go in this matter and I will keep following it as it really is one of the last stands by a corrupt legal fraternity trying to protect themselves. Even the legendary crook himself Graham Richardson is under investigation by ICAC. Now all we need is a federal ICAC.

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