Frank Brennan.  Cunneen v ICAC

Margaret Cunneen is a high profile public prosecutor.  The NSW  Independent Commission against Corruption (ICAC) wanted to investigate her for corrupt behaviour, but not in relation to anything she did as a prosecutor.  They wanted to investigate her behaviour as a private citizen, she being the mother of a boy whose girlfriend was involved in a car accident.  The suggestion was that Cunneen on being called to the accident scene was party to a plan that the driver should fake chest pains to escape a blood alcohol test even though the driver had not been drinking and her blood alcohol content was zero. ICAC’s argument was that the behaviour of Cunneen and her family members could adversely affect the police in performing their official functions investigating the accident.

Section 8(2) of the ICAC Act defines corrupt behaviour to include ‘conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official’.  So corrupt behaviour could include conduct by a person in a private capacity (like Cunneen being Mum) that adversely affects the exercise of official functions by a police officer.

The alleged behaviour of the Cunneen family circle, if proved,  was not behaviour which, if successful, would cause  police officers to act with less probity in the performance of their duties.  Such behaviour would only cause the police officers to act in a less efficacious manner in detecting a crime.

The case came down to interpreting the phrase ‘adversely affects’.  Four of the five High Court judges sitting on the appeal observed:

‘Either it means adversely affect or could adversely affect the probity of the exercise of an official function by a public official, or it means adversely affect or could adversely affect the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision from that which would otherwise be the case.’

The four majority judges were left in no doubt: ‘The former meaning accords with the ordinary understanding of corruption in public administration and consequently with the principal objects of the ICAC Act.  The latter would result in the inclusion in “corrupt conduct” of a broad array of criminal offences and other unlawful conduct having nothing to do with the ordinary understanding of corruption in public administration or the principal objects of the ICAC Act.’

There are some High Court cases where you can see the result coming when the barrister is caught out during the oral argument by one of the prying judges.  Cunneen was one of these cases.  It was all the more notable because the prying judge was the new boy on the block – Justice Nettle. It was still his first month on the job.  At the hearing back on 4 March 2015, Justice Nettle asked a few tentative questions and then he moved in for the kill, questioning Mr Kirk SC, the counsel for ICAC who already was having a very bad day having failed to provide the court with relevant papers.  Here is the transcript:

NETTLE J: Just one more question, in New South Wales any telling of lies to policemen could be a criminal offence? So, any telling of lies, we would say, when someone is arrested and tells lies as they frequently do to policemen about what they are asked would, on this basis, be corrupt conduct?

MR KIRK: Any telling of lies which has the potential to pervert the course of justice.

NETTLE J: That is usually why they are told is to deflect the policemen from getting to the truth.

MR KIRK: But it all depends on the context. Not telling a lie – not every single lie – if a police officer asks your name and you lie about that, that is not necessarily going to have any tendency to pervert the course of justice. I am not saying to avoid your Honour’s question, I am just qualifying.

The qualifier was meaningless or too fudgy to be workable. It was game, set and match to Cunneen.   ICAC was not alleging that she had done anything to affect the probity of the police in their conduct of the investigation.  At most, ICAC was alleging that she had done something affecting the efficacy of the investigation. That ain’t corruption.  And thus it is no business of ICAC.  ICAC exists to expose corruption.  As the court said, ‘It is not likely that an Act which is avowedly directed to investigating, exposing and preventing corruption affecting public authorities – and for which the justification for the conferral of extraordinary powers on ICAC was said to be the difficulty of discovering and exposing corruption in the nature of a consensual crime of which there is no obvious victim willing to complain – should have the purpose or effect of extending the reach of ICAC to a broad array of crimes having nothing to do with corruption in public administration apart from such direct or indirect effect as they might conceivably have upon the efficaciousness of the honest and impartial exercise of official functions by public officials.’

The police officers conducting the investigation into the accident were not corrupt.  They were not corrupted by Cunneen and her family. There could be no suggestion that Cunneen was trying to corrupt the police. It’s time for ICAC to get back to work investigating corruption, leaving other matters of errant behaviour to the police to investigate.  It’s also time for Cunneen to get back to work.

Fr Frank Brennan SJ, professor of law at Australian Catholic University, is presently Gasson Professor at the Boston College Law School.

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2 Responses to Frank Brennan.  Cunneen v ICAC

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  2. Doc says:

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