ICAC's Operation Hale ... Prosecutor Margaret Cunneen in the frame for allegedly perverting the course of justice ... Perplexing factual issues ... Claim of "malicious complaint"
Cunneen, domestic duties (pic Mark Tedeschi)
THERE are intriguing loose ends in the Cunneen-ICAC story that might look more neatly tied by the time the public hearing gets underway next Monday (Nov. 10).
Thursday's statement (Oct.30) from ICAC produced gasps of amazement: NSW deputy senior crown prosecutor, Margaret Cunneen, is to be investigated publicly for allegedly intending to pervert the course of justice.
The announcement went on to say that along with her son, Stephen Wyllie, she counselled Sophia Tilley to pretend she had chest pains with a view to preventing police obtaining Tilley's blood alcohol level at the scene of an accident.
That is the bare-bones of ICAC's statement. Other elements of the story have been reported subsequently.
Young Sophia was the girlfriend of Stephen Wyllie and she was driving Cunneen's car when it crashed in Willoughby on a Saturday night in May.
As is usual after an accident, she was taken to hospital where in any event she was tested and according to one report found that her blood alcohol level was zero.
As a senior prosecutor Cunneen would be familiar with the procedure - that the driver suffering chest pains at the scene of an accident in which the car she was driving rolled and was written-off would be taken to hospital, where her blood would be tested.
Advice in these circumstances to plead chest pains, with a view to not cooperating with police at the scene of the crash, doesn't seem to make a lot of sense.
It also raises the question of whether chest pains would rule out a breath-test when the current technology does not require a testee to breath heavily into a tube.
Sophia and Stephen: chest pains
Police would be aware of every well-worn excuse under the sun when it comes to trying to avoid a breath test, chest pains being somewhere near the top of the list of try-ons.
Another distracting element in this curious case is the possibility that Sophia Tilley may indeed have had chest pains. There have been reports that the young lady has breast implants and in the circumstances they may have acted as air-bags - which would indeed have been painful.
So, on the basis of what we know so far Tilley is said to have taken Cunneen's advice to pretend to have chest pains to avoid a breath-test when she was inevitably going to have a blood test at hospital and where her implants, without any pretence whatsoever, may have given her chest pain after the accident.
There is also speculation as to who might have dobbed-in Cunneen. In her only quoted remark since ICAC's announcement, apart from denying the accusation, the prosecutor has said the allegations could only have come from a "malicious complaint".
It is unlikely the coppers would have complained, because: (a) Cunneen is close to most of the senior detectives in the NSW Police, and (b) the police would be reluctant to cede any jurisdiction to another agency, such as ICAC.
There is little doubt that Cunneen has her fair share of detractors and is regarded in the hide-bound confines of criminal justice as running a bit fast and loose.
The SMH reported Cunneen's "long running friendship" with Steve Fletcher, a professional gambler "with underworld connections". The suggestion is that the senior crown prosecutor has dubious associations, even introducing Fletcher to one of the detectives engaged in a Police Integrity Commission investigation into the gambler's activities.
Fletcher also employed Stephen Wyllie and together they went on a gambling trip to Las Vegas to celebrate young Stephen's 21st birthday.
In May Justinian reported a CCA judgment which was highly critical of Cunneen's conduct at a murder trial, which the appeal court said contributed to a miscarriage of justice.
See: Crown prosecutor birched by CCA
Most recently Cunneen has joined the pro-QC ticket for the bar elections. Ticket organiser John Hyde Page sang her praises:
"Margaret is a fine lawyer who has dedicated her entire career to public service."
Sophia Tilley is reported to be the daughter of Barry Tilley and Georgia Riley, a former Sydney pub owner, property dealer and knock-about pal of Kerry Packer.
His son Ben Tilley was Packer's good-luck charm and used to accompany the mogul to gambling benders here and overseas. At one stage Justinian rented some office space in Rushcutters Bay from Barry, who was frequently keen to collect the rent before it fell due.
Gary Sturgess and Nick Greiner, who guided ICAC into existence in 1989, have spoken out against the Cunneen inquiry.
Sturgess claims the case concerns what "some individual did in their private life" and is not properly a case of "official corruption".
"This is not a difficult matter for the police to pursue an investigation."
Former Premier Greiner, himself a victim of an adverse finding by ICAC, said something similar:
"It would appear that what is alleged is about personal conduct."
Nonetheless, attempting to pervert the course of justice by a crown prosecutor would fall within "corrupt conduct" under the ICAC Act and the commission would have the power to investigate.
Sydney brief Bruce McClintock thinks that consideration should be given to applying restraints on some of the things ICAC does.
He declared that the conduct of some of ICAC's counsel assisting has been "problematic" and some inquiries turned into a "media circus".
He says that because Cunneen was acting at the time in her capacity as a mother, rather than a crown prosecutor, it is arguable that the investigation may fall outside ICAC's jurisdiction.
Crikey is reporting that the ICAC inspector, former justice David Levine, has written to the corruption fighting body asking for an explanation as to why it is conducting this inquiry.
Queensland lawyer Alan MacSporran has been signed-up as an acting commissioner to conduct the investigation. Counsel assisting is Michael Fordham, who is does not list criminal law among his areas of practice.