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Cunneen loses bid to stop ICAC probe

The NSW Supreme Court has ruled that crown prosecutor Margaret Cunneen SC will have to front a public inquiry over allegations that she intended to pervert the course of justice.

user iconLeanne Mezrani 11 November 2014 The Bar
Cunneen loses bid to stop ICAC probe
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The NSW Supreme Court has ruled that crown prosecutor Margaret Cunneen SC will have to front a public inquiry over allegations that she intended to pervert the course of justice.

In a decision handed down today, Supreme Court Justice Clifton Hoeben found that the Independent Commission Against Corruption (ICAC) can proceed with a public inquiry into allegations that Cunneen (pictured) advised her son’s girlfriend, Sophia Tilley, to “pretend to have chest pains” to avoid being breath-tested after being involved in a car accident.

Justice Hoeben held that “interference with an investigation with the intention to deflect criminal or disciplinary action can amount to perverting the course of justice or an attempt to pervert the course of justice”.


While the judge admitted that ICAC does infringe on “fundamental rights”, he maintained that defining corrupt conduct should not be “unnecessarily read down”.

“In this case, the allegations could be used to satisfy both limbs of the definition of corrupt conduct in the ICAC Act,” stated a summary of Justice Hoeben’s 55-page judgment.

Lawyers Weekly attempted to speak with Cunneen after the decision had been handed down, but she declined to comment. Cunneen has since lodged a second appeal.

The appeal is listed for hearing before the Court of Appeal on Tuesday 18 November. ICAC told the Court of Appeal that it would not commence the public inquiry until the appeal was determined.

ICAC was due to commence its three-day inquiry this morning, but it was delayed when Cunneen sought an injunction to force ICAC to drop its investigation and public inquiry.

Cunneen’s barrister, Arthur Moses SC, made a number of submissions, including that ICAC had overstepped its jurisdiction because the public interest in exposing the matter did not outweigh the interest in preserving Cunneen’s privacy.

Under section 31 of the ICAC Act, the watchdog must take into account whether a matter is in the public interest and the seriousness of the allegations before launching a public inquiry.

Moses also claimed that there was no suggestion the allegations were related to Cunneen’s conduct as a crown prosecutor.

Justice Hoeben rejected both arguments, stating that the ICAC Act provides no distinction in relation to personal or private conduct.

On 3 November, when speaking with Lawyers Weekly, the acting NSW legal services commissioner Jim Milne questioned whether a public inquiry was necessary to investigate Cunneen’s alleged actions.

Barrister and legal commentator Greg Barns, who is also a spokesperson for the Australian Lawyers Alliance, previously claimed on ABC radio that he did not believe it was within ICAC’s remit to conduct “what is essentially a criminal investigation”.

Lawyers Weekly contacted the Australian Lawyers Alliance requesting an interview with Barns, but did not receive a response prior to publication.

Win some, lose some

Cunneen and Moses may have lost their bid to stop the ICAC inquiry, but the silks were winners in a recent NSW Bar Council election ballot.

Cunneen and Moses each received more than 300 votes – placing them among the top five silks standing for election.

Voting closed at 1pm on Thursday 6 November, almost a week after ICAC announced it was seeking to commence its public inquiry into the allegations against Cunneen.

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