Margaret Cunneen inquiry: ICAC loses High Court bid to investigate prosecutor
By Elizabeth Byrne

PHOTO: Margaret Cunneen SC fought a bid by the corruption body to investigate claims she attempted to pervert the course of justice.(AAP: Nikki Short, file photo)

The New South Wales Independent Commission Against Corruption (ICAC) has lost a High Court bid to investigate crown prosecutor Margaret Cunneen.

The ICAC went to the High Court after it was blocked from investigating claims Ms Cunneen had tried to pervert the course of justice by coaching a witness.

Ms Cunneen was accused of advising her son's girlfriend Sophia Tilley to fake chest pains to avoid a breath test after a car accident in May last year.

Ms Cunneen rejected the claims against her, which she said were part of a malicious complaint.

The prosecutor's lawyers told the court in any case such an inquiry was beyond the scope of ICAC.

The NSW Court of Appeal agreed, prompting today's hearing in the High Court.

Today, the High Court found the commission did not have the power to investigate because the allegations did not constitute corrupt conduct under the ICAC Act.

The commission has been ordered to pay costs.

After the decision was handed down, Ms Cunneen told the ABC she was "glad that justice was finally done".

"No family should ever be put through this again," she said.

The ruling has helped define the scope of the commission's powers.

During the hearing Ms Cunneen's counsel David Jackson said ICAC should direct its attention to serious and systemic corrupt conduct.

Mr Jackson said the ICAC Act did not include provisions wide enough to take in the allegations against Ms Cunneen.

A friend of Ms Cunneen's, Sydney Barrister Jeffrey Phillips SC, said a decision against the ICAC had been coming for a while.

"A case like this, clearly showed in sharp relief, that the ICAC was going into areas that were never part of its function," he said.

"It interpreted corrupt conduct in a way which could've meant any behaviour of any public official or anyone dealing with a public official, which had nothing to do with that public official's task."

NSW Acting Premier Troy Grant said he would discuss the outcome with Premier Mike Baird upon his return to Sydney.

"The Government will review the High Court's decision and take all appropriate advice on any action required," he said.

A key focus of the hearing was to review parliamentary speeches about the intent of those who put the ICAC Act in place.

The commission had warned if it lost its bid, key investigations could be in jeopardy, although it is not yet known if this will be the case.

The ICAC reports on inquiries including the Obeid-related Australian Water Holdings and NSW Liberal Party.

Both inquiries were on hold until the case against Ms Cunneen was resolved.

In a statement the ICAC said it was currently considering the decision of the High Court and would be make a public statement in due course.
(ABC news 15/4/2015)

澳洲最高法院今天頒布上訴判辭，對新州廉政公署的查案權力打擊嚴重。本來已屬無牙老虎的廉署，那把口可能越擘越細。事緣是這樣：

Margaret Cunneen資深大律師是新州刑事檢控科的Deputy Senior Crown Prosecutor，經手檢控很多大案，包括孌童、輪姦及謀殺案，她是罪惡剋星那類人物。另一方面，她檢控手法的不公平態度也受到非議。我以前寫過的Gilham謀殺案也是她經手檢控的。

去年5月，Cunneen兒子的女友Sophia Tilley牽涉在交通意外中，Cunneen及兒子趕到現場，後來有人向廉署舉報，指她及兒子教唆Tilley聲稱胸痛而拒絕吹氣測試，廉署因此展開調查。Cunneen除了極力否認指控外，還提出廉署在法律上調查權限的爭議，這件案一直由Supreme Court，Court of Appeal，上訢至High Court——澳洲的終審法院。最高法院這次的裁決，介定了corruption在廉署條例所包括的範圍。

Cunneen案能否檢控事小，畢竟就算廉署有權檢控，還有證據的問題。以往在廉署聽證後被成功檢控定罪的案件，在這次裁決後有多少人會申請逾時上訴呢？等候這件上訴結果的一些觸目案件怎樣聽證下去呢？這次裁決可謂對這權力有限的無牙老虎在防貪肅貪工作方面進一步的打擊。除了大幅修改廉署條例及改革執法權力外，我看不到新州廉署的前途。新州廉署成立前曾向香港廉署取經，看來只有再取經才有可能發揮其應有功能了。新州廉署的成立跟香港的不同，當年成立的目的是基於打擊政治對手，根本並無決心認真肅貪倡廉，才搞出這四不像的廉署來。