David Jackson QC is to lead Margaret Cunneen's High Court case ... Major challenge to ICAC's future effectiveness ... Shroud of uncertainty hangs over pending reports ... ICAC to pick-up Cunneen's High Court costs
WORD on the Street of Shame is that state prosecutor Margaret Cunneen has recruited David Jackson QC to do the job for her in the High Court.
It is understood that Arthur Moses, who has carried the flag for the deputy senior crown prosecutor in the application to put a stop to ICAC's inquiry into allegations that she perverted the course of justice, will be retained as part of Team Jacko.
ICAC has undertaken to pay Cunneen's costs of its High Court appeal.
The prosecutor also will have the benefit of costs orders from her success in the Court of Appeal.
ICAC is seeking to overturn the findings by the CA majority (Basten and Ward) that restricts the meaning of corrupt conduct.
It all hangs on s.8(1) and (2) of the ICAC Act.
Section 8(1) defines corrupt conduct as:
"any conduct of any person ... that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority."
That seems wide enough.
Section 8(2) goes on to say that corrupt conduct is also:
"any conduct of any person that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group of body of public officials or any public authority and which could involve ..."
a long list of offences of offences, including relevantly for these purposes, (g) perverting the course of justice and (y) any conspiracy or attempt in relation to any of the above.
What the CA majority did was import from s.8(1) "honest or impartial exercise of official functions" into s.8(2), even though it was not there.
Basten and Ward said that though the conduct alleged against Cunneen could constitute an attempt to pervert the course of justice as it was intended to dissuade a police officer from investigating the commission of an offence - nevertheless, her alleged conduct could not be said to cause the officer to act otherwise than honestly and impartially.
Conduct could only "adversely affect" public officials if they had actually acted improperly.
Such a finding puts into doubt the work done by ICAC in Operation Credo and around 50 percent of its work in Operation Spicer.
Credo was concerned with Australian Water Holdings Pty Ltd and whether people with an interest in that company obtained financial benefits by "adversely affecting" the official functions of the state government instrumentality, Sydney Water Corporation.
This involved billing for bogus expenses and inflated executive salaries, including by Eddie Obeid jnr and former Colin Biggers & Paisley managing partner Nick Di Girolamo.
Di Girolamo was described by counsel assisting ICAC, Geoffrey Watson, as, "an old-fashioned shyster, fraudster and barefaced liar".
According to Basten's view, if people at Sydney Water Corporation thought they were doing the right thing in paying these billed expenses, under an infrastructure agreement with AWH, then the investigation into Obeid jnr, Di Girolamo and others would be outside ICAC's ambit.
On this reasoning it's only if SWC did something improper could it be found that Obeid jnr and Di Girolamo acted corruptly.
Similarly, with operation Spicer, which looked at allegations that members of parliament received money from prohibited donors and failed to disclose those donations.
If a property developer, a prohibited donor, gave a bundle of money to an aspiring Liberal Party candidate, the Electoral Funding Authority may still have acted honestly and impartially in the exercise of its function, consequently on Basten's reasoning this too would be beyond ICAC's jurisdiction.
This is why the reports from the Credo and Spicer investigations now cannot be released by ICAC until the High Court has pronounced on whether the CA is correct or not.
By engaging David Jackson to lead her High Court case Cunneen shows not only that she is determined to sink the investigation into the allegations concerning her conduct, but also to punch an everlasting hole in the corruption fighting ability of ICAC.
An array of crooks, spivs and graspers all over town will be cheering to the rafters.