Margaret Cunneen's appeal ... "Is it a public flogging? Is it a show trial?" ... Court of Appeal reserves on whether ICAC can proceed to investigate deputy senior crown prosecutor for allegedly perverting the course of justice ... Nina Ubaldi reports from ringside
Moses: sleeping rough
"What is it?" asked Arthur Moses on Tuesday (Nov.18) in the NSW Court of Appeal.
"Is it a public flogging? Is it a show trial?"
The 'it' in question is ICAC's decision to publicly investigate corruption allegations against NSW prosecutor Margaret Cunneen, her son Stephen Wyllie, and his partner Sophia Tilley.
Cunneen and her son are alleged to have counselled Tilley to fake chest pains to prevent police testing her blood alcohol level at the scene of a car accident in May this year.
Last week Justice Cliff Hoeben in the Supreme Court upheld ICAC's decision. The Court of Appeal says it is endeavouring to made a decision "as soon as possible".
Moses, for the appellants, told Tom Bathurst CJ and Justices John Basten and Julie Ward that the ICAC has an obligation to give reasons for its decisions to commence investigations and hold a public inquiry.
Further, the commission exceeded its jurisdiction to investigate "corrupt conduct". Both lines of argument were subject to intense questioning from the bench, particular from Basten J.
ICAC's failure to give reasons
The appellants put forward two lines of argument in relation to ICAC's refusal to tender full reasons for its decisions (in addition to a letter provided to the appellants earlier in the proceedings)
First, Moses argued that the failure of the commission to give reasons for its decisions deprived the court of meaningful oversight over executive power. The position of the commission was "in essence, you should just trust us that we're operating within the law".
Jeremy Kirk, for ICAC said that the absence of reasons did not thwart judicial oversight. The outcome of the decision, he argued, was subject to review for reasonableness.
Secondly, Moses disputed the commission's reliance on the secrecy provisions of the ICAC Act, arguing that a proper construction showed they were either inapplicable or, in the alternative, supplanted by the requirement to give reasons under rule 59.9 of the 2005 Uniform Civil Procedure Rules.
Kirk warned that over-enthusiastic intervention by the court may prejudice ongoing investigations.
Construction of section 8(2)
Moses contended that s.8(2) of the ICAC Act defines "corrupt conduct" through a two-limbed test. The appellants accepted that corrupt conduct could be undertaken by any person, provided it could adversely affect the exercise of a public official's functions.
However, here this requirement could not be satisfied by the same conduct that constituted the second limb - in this case s.8(2)(g): "perverting the course of justice" and (2)(y) "any conspiracy or attempt in relation to any of the above".
Moses' argument was that ICAC is, "only relying on the ordinary elements of perverting the course of justice". As a result, the commission would "seemingly have the ability to investigate any alleged attempt to pervert the course of justice".
By way of example, a car driver who smiled at and flattered an officer could be subject to ICAC investigation, losing the right to silence and the privilege against self-incrimination. In short, "the consequences are extraordinary".
Kirk framed this argument as a complaint against "two for the price of one". His response - "So what?" The ICAC Act, he submitted, reflected the intention of parliament to define "corrupt conduct" in broad terms.
Kirk: hosing down the enthusiasm
Serious and systemic corrupt conduct
The appellants submitted that s.12A of the ICAC Act narrowed the definition of "corrupt conduct". Moses warned of the potential abuse of power arising from the unfettered ability of the ICAC to investigate the conduct of public officials acting in their private capacity. Such a power would be, in the language of Chief Justice French, to "use a sledgehammer to crack a nut".
Moses questioned the causal connection between Cunneen's position as deputy senior crown prosecutor and her alleged conduct on the night of the accident. Further, he described Wyllie and Tilley as "collateral damage" in the investigation of Cunneen.
They are "two young individuals [who] had their rights taken away simply because of their relationship with a public official".
Perverting the course of justice
Moses submitted that the alleged conduct could not amount to an attempt to pervert the court of justice, as a there was no evidence to support the requisite intention and Tilley was not under investigation for a criminal offence. The taking of a blood test did not itself constitute an investigation, he argued.
Kirk said that Moses' "regular reference [to] no evidence" misunderstood the task - the proceedings were only at an investigatory stage. In such a context, deflecting the attention of police prior to the administration of justice could indicate an attempt to pervert the course of justice and adversely affect public administration.
Public hearing
The appellants contended that the commission failed to consider two subsections of s.31 of the Act in its decision to hold a public hearing - the risk of undue prejudice to his clients' reputation and the public interest in preserving their privacy.
This argument was strongly contested by ICAC. Kirk said:
"Simply because there are no reasons doesn't mean mandatory considerations have not been taken into account."
Further, Kirk argued that the outcome of the decision did not reveal the "extremely high threshold" for unreasonableness warranting judicial review.
During the hearing the bench seemed occasionally sceptical about the appellants' arguments. ICAC has undertaken not to proceed with its public investigation of the crown prosecutor until the court delivers its judgment.
Reporter: Nina Ubaldi