ONE OF New South Wales’ leading female lawyers, Margaret Cunneen, has finally been elevated to the position of silk. The state’s barristers last week elected the deputy senior Crown prosecutor to the position along with 22 of her peers.
The elevation of Cunneen is regarded by many as long overdue. She failed to make the cut five times previously and her recurring absence from the list sparked widespread public criticism of the appointment process which various media outlets described as “mysterious”, “mired in scandal” and “farcical”.
Despite a conviction success rate of around 80 per cent and having successfully prosecuted many high-profile cases including the notorious 2002 gang rapes, Cunneen’s outspoken criticism of the tactics employed by defence lawyers is widely believed to be the reason she previously failed to make the cut.
In 2005 two high-profile defence lawyers, Chris Murphy and the now-deceased John Marsden, formally lodged complaints against her with the NSW Legal Services Commissioner, following a speech she made about the gang rape cases at the University of Newcastle. Cunneen was removed from one of the gang rape cases earlier this year when three appeal judges found there would be a perception of unfairness if she acted in the case based on the speech.
While she may have raised the ire of many barristers with her outspoken criticism of their work, Greg Barns, a Tasmanian barrister who has been vocal in criticising the process of appointing silks, said her opinions should have been irrelevant.
“Her case shows that the [appointment] system isn’t transparent. I don’t’ agree with a lot of her views and take exception to a lot of the comments she’s made in relation to victims, but leaving that to one side she is obviously a very able lawyer. If we are going to [appoint silks] truly as a mark of excellence and a signal to consumers, then she would have been appointed and she wouldn’t have been punished for comments that she made,” Barns said.
“My view is simply that the system doesn’t work. Last year we had the appointment of George Brandis, a senator from Queensland and Howard Government minister who hasn’t practised for years. The system is a joke. The only people who believe in it are the Bar associations. It’s similar in all the states. In all states the system gets abused, it’s used by people for political favours, to reward people who play by the rules as opposed to being more of a maverick and it’s certainly anything but a transparent process,” Barns said.
This year the NSW Bar Association instituted what president Michael Slattery described as a “no scuttlebutt’” rule after a review of the appointment process, meaning voters had to tick a box agreeing they have direct knowledge of the candidate’s work.
Cunneen was unavailable for comment.