Last week, Deputy Senior Crown Prosecutor Margaret Cunneen successfully appealed to the NSW Court of Appeal, which found that the Independent Commission Against Corruption (ICAC) had no power to investigate the allegations that on 31 May 2014 she advised her son’s girlfriend to pretend to have chest pains to avoid being breath-tested following a car accident. The decision overturned an earlier judgment by Justice Hoeben that was previously reported by TimeBase.
Ms Cunneen, her son Stephen Wyllie and his girlfriend Sophia Tilley were summoned to ICAC and required to give evidence at a public inquiry. The ICAC alleged that they intended to pervert the course of justice by preventing police officers from obtaining evidence of Ms Tilley’s blood alcohol level. Ms Cunneen, Mr Wyllie and Ms Tilley commenced proceedings in the Supreme Court, challenging ICAC’s inquiry on the basis that the events of 31 May could not constitute “corrupt conduct” under section 8(2) of the Independent Commission Against Corruption 1988 (NSW) (“the Act”). Initially, they were not successful, with Hoeben J finding that defining corrupt conduct should not be “unnecessarily read down”.
On appeal, Ward J and Basten JA of the Court of Appeal overturned the decision, with Bathurst CJ dissenting. The majority held that the Act was not simply concerned with unlawful conduct, rather if the unlawful conduct could lead to a public official exercising their functions dishonestly or improperly. Ward J held that:
“Interference with or deflection of a police investigation does not of itself constitute perverting the course of justice. However, where such conduct is intended, and tends, to have the effect of deflecting officials from undertaking a criminal prosecution, it may interfere with (and thus pervert) the course of criminal justice as administered by a court.
However, the police officer to whom the private person lies or seeks to mislead, will not be compromised in any of the senses referred to above. That officer will not be deflected from an honest and impartial exercise of his or her functions, nor inveigled into a breach of public trust, nor into misuse of information acquired in an official capacity.” [at 74-75]
Bathurst CJ dissented, saying that “[t]he conduct complained of could have the tendency to frustrate or deflect the course of possible curial or tribunal proceedings or to impair the court's capacity to do justice in the particular circumstances of the case” and that this would fulfill the definition of corrupt conduct, as “the essence of the offence is to impair the court's capacity to administer justice, something at the core of our legal and political system” [at 24-26].
ICAC issued a media release saying the Court of Appeal decision “fundamentally alters the basis of the Commission’s power with respect to significant parts of Operations Credo and Spicer” and that “[t]he Commission is seeking special leave in the High Court of Australia as a matter of urgency.” Operation Credo is currently investigating Australian Water Holdings and Operation Spicer is investigating allegations that members of parliament solicited and concealed payments from various sources and failed to disclose political donations. ICAC’s statement says that “Until the proceedings are resolved, the Commission will not complete the reports in Operations Credo and Spicer.”
According to the Sydney Morning Herald, ICAC will argue that the Court of Appeal “based their decision on an "unduly narrow" understanding of corrupt conduct”. They will argue that: “the judges in the majority failed to "give effect to the clear and ordinary meaning" of the words in the ICAC Act, which define "corrupt conduct" that may be investigated by the commission” and that the different definitions of corrupt conduct in the act should “not be regarded as limiting the scope”. The parties will appear in the High Court on Friday for preliminaries.
If the verdict is upheld in the High Court, it will could have a significant flow-on effect, not only affecting current operations, but also opening the door to challenges of ICAC’s previous findings of corruption.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
Cunneen v Independent Commission Against Corruption  NSWCA 421
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