The NSW Independent Commission Against Corruption made it through the day with its powers and processes intact. NSW deputy senior crown prosecutor Margaret Cunneen’s attack on Icac and its proposed investigation into her conduct survived scrutiny by the chief judge at common law, Cliff Hoeben.
Hoeben demolished every ground proposed by the plaintiffs to scuttle the public inquiry. Then his reasons were smartly whipped upstairs to the court of appeal by Cunneen’s legal team, led by Arthur Moses. Robert Macfarlan fixed a hearing by the court of appeal for 18 Nov, subject to all the documents being filed on time.
The basis for the challenge was an allegation that Cunneen, along with her son Stephen Wyllie, perverted or obstructed the course of justice by advising Sophia Tilley to pretend to have chest pains, so as to prevent police officers from obtaining evidence as to her blood alcohol level at the scene of a car accident.
Sophia is Stephen Wyllie’s girlfriend, and the daughter of well known Sydney property dealer, Barry Tilley.
From this case we’ve had some valuable clarification about Icac and its powers. Cunneen, Wyllie and Tilley argued that they were entitled to the reasons for the investigation – and why there should be a public inquiry in the first place.
Effectively the court said there is no point making those orders, because the secrecy provisions of the Icac legislation say the corruption fighting body is not obliged to comply: “In other words such orders would be ineffective.”
Next: that Icac is acting beyond its jurisdiction in deciding to investigate the allegations. Part of this argument rested on the proposition that the “principle of legality” required that Icac should not abrogate fundamental rights and freedoms, unless such an intention was made manifestly certain in the legislation.
Hoeben said that the act makes clear that Icac is an investigator body. The focus is on corrupt conduct or conduct connection with corruption “which may have occurred, may be occurring or may be about to occur”. He held that the commission has wide statutory power to examine the alleged conduct.
The plaintiffs contended there is “some kind of fundamental principle of law that crimes are only to be investigated by the police”. Hoeben said, “this is clearly not the case when there are numerous bodies in NSW which investigate criminal activity of different types, e.g. the crime commission, Asic, and even the RSPCA”.
There is no substance in the idea that there is a fundamental right for wrongdoers to have their alleged crimes investigated only by the police.
Importantly, the Icac Act involves “significant infringements of basic rights”, including the privilege against self-incrimination and the right to silence. “The abrogation of fundamental rights is within the power of the legislature. That is how the Act is expressed”.
The judge was not persuaded the principle of legality should be applied in the way sought by Cunneen.
Next: irrelevant considerations. The submission here was that the commission irreverently took into account that Cunneen was a crown prosecutor. It was argued that her position was of no relevance to the allegations because it was not suggested she did anything untoward in her capacity as a prosecutor.
It was not the function of Icac to investigate conduct that occurred in someone’s personal life, even if the subject of the investigation held an official position, it was argued. That was properly a matter for the police.
This was a big bone of contention, and Hoeben would have none of it. In fact, he said, the act specifically extended the commission’s powers to the investigation of public authorities and public officials: “It was entirely appropriate for the commission to have regard to a person’s status as a public official in deciding whether to exercise its discretionary powers”.
Next: the allegation cannot amount to perverting the course of justice. Again, this was not made out because it depended on “an incorrect interpretation of the elements of the offences of pervert the course of justice and attempt to pervert the course of justice”.
The judge cited great names from the casebook to support his reasons: Jeff Shaw, Roger Rogerson and Marcus Einfeld. It was uplifting to see them once again making a contribution to the jurisprudence.
Next: the decision to hold a public hearing was not authorised by the Icac act. This was the last of the tenpins to be bowled over. Cunneen et al argued that because “the defendant could only hold the public hearing if it were satisfied that it was in the public interest to do so ... any putative satisfaction reached by the defendant that it was in the public interest to hold a public hearing into the allegations was irrational and illogical”.
The important thing here is Icac’s “state of satisfaction” – whether the case is relevantly heard and is in Icac’s jurisdiction. The plaintiffs’ task was made more difficult because they bear the burden of showing that Icac’s “state of satisfaction” couldn’t be met. Hoeben found that: “There is no general law duty on the part of the commission to give reasons at every stage of the decision-making process”.
However, the judge thought a public hearing was warranted: “Given the seriousness of the facts asserted in the allegations, there is an obvious benefit in exposing the conduct to the public.”
In the meantime Icac has undertaken not to proceed with the public hearing into the allegations until the appeal has been determined.
If and when Icac’s hearing does get underway, many mysteries will no doubt to resolved: did Sophia Tilly really have chest pains? Why should a prosecutor advise someone not to take a breath test, when in the circumstances they would be taken to hospital and subject to a blood test? Who made the allegations about Cunneen and what was their agenda? And if Icac is prevented from holding its public inquiry, will the police investigate the allegations?
The really interesting bits are yet to come.
