Cunneen v ICAC - hold tight

Judge says he'll deliver judgment on Monday ... Declarations sought by crown prosecutor Margaret Cunneen that ICAC is acting beyond power ... Corruption commission agrees to delay public hearing into allegations till Tuesday 

Hoeben: refining his thoughts over the weekend ICAC has undertaken not to proceed with its public hearing into allegations against NSW prosecutor Margaret Cunneen until next Tuesday morning (Nov. 11). 

The matter was back in court at 2pm today (Friday, Nov. 7) where Justice Cliff Hoeben said he would not be able to deliver his judgment before Monday (Nov. 10) at 2pm. 

Cunneen, her son and her son's girlfriend are seeking declarations that ICAC is exceeding its jurisdiction and that its decision to hold a public inquiry is invalid and a nullity. 

After some argy-bargy involving Cunneen's counsel Arthur Moses, and Jeremy Kirk for ICAC, the corruption commission said that it would hold-over its proposed public hearing till Tuesday (Nov. 11). 

It was scheduled to start on Monday morning. 

If Cunneen's application is unsuccessful there will be an appeal and a further delay. 

ICAC wants to investigate whether Cunneen, her son Stephen Wyllie, and his girlfriend Sophia Tilley, intended to pervert the course of justice by advising Ms Tilley to fake chest pains at the scene of a car accident to avoid a police breath test.  

On Monday, Justinian questioned whether aspects of the allegations actually stacked-up. 

See: Mother love   

The summons for judicial review has three main components ... 

ICAC is acting beyond its jurisdiction 

The plaintiffs say that Cunneen's public position as a senior counsel and a deputy senior public prosecutor is "extraneous" to the allegations. 

"The allegations made against the plaintiffs are that each of them, acting in a private capacity, engaged in conduct, which constituted an attempt to pervert the course of justice by, in effect, deflecting the police from testing the blood alcohol level of the third plaintiff at the scene of a motor vehicle accident." 

The summons says that it is the role of the police, not ICAC, to investigate allegations of this character. 

"It would offend the principle of legality to construe the provisions of the ICAC Act, and in particular section 8(2) of the Act as if they empowered the defendant to usurp or duplicate the investigatory functions conferred by the state on the NSW police in relation to allegations which rise no higher than that persons attempted to pervert the course of justice, simply because one of the persons holds public office." 

The alleged conduct, it is submitted, is not enough to amount to "corrupt conduct" within the meaning of s.8(2), which "requires more than proof of an allegation that such a statement was made". 

Further, s.13(1)(a) of the Act requires ICAC to form an "opinion" about the alleged corrupt conduct to be investigated.  

The material put forward by the plaintiffs says that to form this opinion was "irrational and illogical [such as] to deprive any such putative opinion of the legal character of an opinion" for the purposes of the section. 

ICAC took into account an irrelevant consideration

The irrelevant consideration was that Cunneen was a deputy senior crown prosecutor and an SC. 

"The subject matter, scope and purpose of the Act do not provide that a public official and persons related to the public official are to be deprived of their fundamental rights as a citizen including the right to silence, simply because the first plaintiff is a public official in circumstances where the alleged conduct does not relate to the exercise of her functions as a public official." 

The decision to hold a public inquiry

Here the argument is that ICAC failed to take account of considerations required by s.31(2(c) and (d) of the ICAC Act, namely:  

(2) Without limiting the factors that it may take into account in determining whether or not it is in the public interest to conduct a public inquiry, the commission is to consider the following ... 

(c) any risk of undue prejudice to a person's reputation (including prejudice that might arise from not holding an inquiry),

(d) whether the public interest in exposing the matter is outweighed by the public interest in preserving the privacy of the persons concerned.

Justice Hoeben is taking longer than expected to think about all the issues. Hold tight till Monday. 

See: ICAC Act