Calls for ICAC to be closed down or for its hearings it be held in secret found no support in the NSW Supreme Court ... The anti-corruption body is looking stronger than ever ... Round One in Cunneen v ICAC
Sophia Tilley: fake chest pains at the centre of the allegations
ICAC survived Justice Cliff Hoeben's judgment in the Cunneen case without having any of its teeth knocked out or even getting a fat lip.
That was round one. Round two is in the Court of Appeal on Tuesday (Nov. 18).
In fact, on the basis of yesterday's findings (Nov. 10) ICAC's powers and process have never looked more impregnable and it will take some dextrous work by the appeal judges to unpick Hoeben's thinking.
Here's what ICAC alleges against crown prosecutor Margaret Cunneen, her son Stephen Wyllie and her son's girlfriend, Sophia Tilley - see here.
Essentially, the judge found that the ICAC Act is as broad as it's wide. Here are the main issues considered in the judgment ...
ICAC can investigate anyone, whether a public official or not
Section 8(2)(a) covers corrupt conduct by any person, including a public official. People who might be public officials are not excluded from investigation merely because the conduct under examination relates to their private life.
"This is particularly the case where Ms Cunneen holds senior office with the Director of Public Prosecutions, being an important role in the administration of justice."
In this instance the allegation involved hindering the police in pursuit of their duty, which can amount to an attempt to pervert the course of justice. "It is fundamental to ICAC's role that it investigate criminal offences."
ICAC can trample on fundamental rights
Even though the ICAC Act infringes fundamental rights (right to silence, privilege against self-incrimination), provisions defining corrupt conduct should not be unnecessarily read down.
Here the allegations could satisfy both limbs of the definition of corrupt conduct in the ICAC Act - section 8(2).
"The abrogation of fundamental rights is within the power of the legislature. That is how the Act is expressed."
ICAC can hold a public hearing
The plaintiffs had this issue a bit both ways. On the one hand they complained that ICAC's interpretation of the legislation was such as to give itself wide powers to create "a secret crime body to investigate any alleged attempt to pervert the course of justice".
At the same time they said that the allegations against the plaintiffs should be heard in secret, because in making a decision to hold public hearings ICAC had failed to take into account the risk of undue prejudice to a person's reputation and whether the public interest in exposing the matter is outweighed by preserving the privacy of those concerned, see s.31.
Hoeben said the plaintiffs had the onus of showing that there was no basis for ICAC's satisfaction about those considerations, however here it cannot be said that no rational or reasonable decision maker could reach the view that no public hearing should be held.
"Given the seriousness of the facts asserted in the allegations, there is an obvious benefit in exposing the conduct to the public."
This is a matter for the police - not ICAC
Hoeben dismissed the idea that there is "some kind of fundamental principle of law that crimes are only to be investigated by the police".
All sorts of organisations can investigate crimes, including the RSPCA - so there's nothing special about ICAC having this role - after all, it is an investigatory body, see s.13.
ICAC does not have to supply documents or reasons
The plaintiffs sought copies of documents relating to its decisions to investigate and to hold a public inquiry and its reasons.
This was sought under rule 59.9 of the Uniform Civil Procedure Rules.
The court refused to make the order sought by Cunneen. Section 111 of the ICAC Act provides that ICAC officers are not obliged to produce documents or divulge information in court in relation to their investigatory functions.
The judge said an order to produce would be ineffective as ICAC was not obliged to comply with it.
Chest pains
There are all sorts of issues to be resolved if the investigation ever makes it to a public hearing.
Did Sophia Tilley really have chest pains, and if so why was it perverting the course of justice to tell the police that she had?
As @Kaptain_Kaos Tweeted yesterday:
@JustinianNews @FrancieJones @guardian Geezus that girl's chest does look painfully swollen, maybe she was telling the truth!
— Madbrain Rudesby (@Kaptain_Kaos) November 10, 2014
There is also the issue of trying to avoid a breath test, when in the circumstances of the car accident Cunneen would have known that Ms Tilley would be taken to hospital for a blood sample.
That is exactly what happened. She did go to hospital and her blood sample showed zero blood alcohol.
No doubt there's more to learn.
See: Cunneen v ICAC - hold tight
See: Mother love
See: nifty court summary of the judgment
See: judgment in full