Cunneen Loses Bid to stop ICAC Inquiry
Monday 10 November 2014 @ 3.16 p.m. | Judiciary, Legal Profession & Procedure
In a decision handed down today (10 November 2014), New South Wales Supreme Court Justice Hoeben found that the Independent Commission Against Corruption (ICAC) can proceed with a public inquiry into allegations that Cunneen 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.
Background to the Public Inquiry
On 30 October 2014, ICAC announced it would hold a public inquiry to decide whether Cunneen and her son, Stephen Wyllie, intended to pervert the course of justice at the scene of an accident earlier this year.
Cunneen was the prosecutor in the Bilal Skaf gang rape case which, in 2002, led to the passage of new laws increasing prison sentences for gang rapists. She was elevated to silk in 2007 after five previous but unsuccessful attempts. In 2012, Cunneen was appointed by former NSW premier Barry O’Farrell to lead a special commission of inquiry into child sex abuse allegations in the Catholic diocese of Maitland-Newcastle. She released a report into those allegations on 30 May 2014, the day before the car accident involving Tilley.
Cunneen has agreed to stand aside until ICAC concludes its inquiry.
Comments Made by the Judge
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.”
Further Legal Action
Despite the original legal challenge lodged by Cuneen's legal team, led by Arthur Moses SC, claiming that ICAC's power to investigate Ms Cunneen and to hold public hearings has been overstepped, indicating that in the court rules the commission has the power to investigate Ms Cunneen but public hearings should not be allowed to go ahead, which was overturned by Justice Hoeben, Cuneen has launched a secondary appeal.
ICAC was due to start public hearings in the inquiry at 10am on Tuesday 11 November 2014 but Ms Cunneen's legal team has lodged an urgent appeal against Justice Hoeben's decision. Court of Appeal Justice Macfarlan said on Monday the appeal would be held on Tuesday, 18 November 2014.
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