Another expert queries the mysteries of the High Court in ICAC v Cunneen ... Legal historian Evan Whitton draws inspiration from Bob Trimbole ... Appeal courts akin to casinos
Reid: top appeal cases could be decided either way
Barry Lane says six appellate judges - John Basten, Julie Ward (NSW), Robert French, Ken Hayne, Susan Kiefel, Geoffrey Nettle (High Court) - were wrong to say ICAC had no power to investigate an officer of the NSW Supreme Court, Margaret Cunneen, on suspicion of corruption in connection with a motor accident.
Mr Lane's view will not surprise lawyers; Lord Reid said nearly half the rulings by the Judicial Committee of the House of Lords could have gone either way.
That tends to confirm my suggestion that appeal courts are "casinos, lacking only scantily-clad young ladies offering the gamblers high-octane cocktails. Lawyers can advise clients to have another roll of the dice; they might win, however dubious their case".
High octane court of appeal
Appellate judges may thus be at risk of dismissal for incapacity, but who is watching? In Germany, they watch judges like hawks to see if a pattern emerges.
The Casino Effect may partly derive from a peculiarity of the common law. Judging is obviously different from advocacy, but in exactly 850 years judges in England and its hapless colonies have never been trained as judges separately from lawyers, as they are in France.
Nonetheless, the Cunneen matter should not have taxed judges' brains unduly.
The first part of section 8(2) of the ICAC Act defines corrupt conduct as: "... any conduct that adversely affects ... the exercise of official functions by any public official ..."
The majority High Court view seems to be that a suspect's conduct is not corrupt if it did not adversely affect an official's function.
Bob Trimbole refutes the learned judges thus. Suppose he offered a judge a bribe, but the beak knocked him back. The official's function was not adversely affected, but Trimbole's conduct could obviously be investigated by the appropriate authorities.
Trimbole: no corruption if his bride was knocked back
(That reminds me that I had the honour of being the only reptile to attend Bob's entertaining funeral service out in the wilds of Minchinbury - now the home of my hero, Aldi - and so heard a priest with a sense of fun, Fr John Massore, take as his text: All human life is as grass. A 1,200-word sketch of the service can be seen here.)
The second part of s.8(2) is a fortiori, as they say in the trade.
It turns on the word "could". If a suspect's conduct could adversely affect an official's action, that should mean the conduct is corrupt regardless of whether it did or did not adversely affect the official's action.