Posted on January 28, 2015 by Stuart Simington
Corrupt conduct – what is an ‘adverse affect’ on the exercise of official functions ?
The ICAC commenced an investigation of a complaint concerning the deputy senior Crown Prosecutor, Margaret Cunneen SC in July 2014. That complaint was that:
Margaret Cunneen SC on 31 May 2014, with the intention to pervert the course of justice, counselled Sophia Tilley to fake chest pains and that Sophia Tilley, with the intention to pervert the course of justice, did fake chest pains to prevent investigating police officers from obtaining evidence of Tilley’s blood alcohol level at the scene of a motor vehicle accident.
Ms Cunneen challenged the jurisdiction of the ICAC to investigate the matter on grounds that the allegation did not concern ‘corrupt conduct’.
On appeal, the central issue dealt with by the Court of Appeal was whether the alleged conduct was corrupt conduct on grounds that it was capable of adversely affecting the exercise by the police officers of their official investigative functions, within the meaning of s8(2) of the ICAC Act.
The alleged conduct by Ms Cunneen did not occur in the course of the exercise of Ms Cunneen’s official functions as a Crown Prosecutor.
Under s8 of the ICAC Act (and subject to s.9) corrupt conduct includes conduct that:
- s8(1)(a) – adversely affects, or …could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official (s8(1)(a)),
- s8(2) – adversely affects, or …could adversely affect, either directly or indirectly, the exercise of official functions by any public official… and which could involve any of the [range of] following matters:
…(g) perverting the course of justice
There was no question that the conduct did not fall within s8(1)(a). It was not alleged that the police officers had done anything dishonest or partial.
However, each of the Appeal judges agreed that if the allegation was true, Ms Cunneen could be held to have engaged in conduct amounting to perverting the course of justice and therefore that the conduct potentially fell within s8(2).
Ultimately, however, the judges took a different approach to the question whether the conduct could adversely affect the exercise of the police officers official functions.
In holding that that the conduct was not ‘corrupt conduct’, Basten JA held that the ICAC Act was concerned with corruption in relation to the administration of government. The ‘adverse affect’ in s8(2) therefore had to be an affect consistent with the ordinary understanding of corruption affecting public authorities and public officials . In this case, Ms Cunneen’s alleged conduct did not cause the police officers to exercise their functions without that integrity. If so, the conduct did not have the capacity to compromise the integrity of public administration and was therefore not within the scope of s8(2) .
Ward JA had a similar view, finding that it was necessary for the conduct to have the potential to affect the exercise of the relevant public official’s functions in a manner adverse to the public administration of justice, in the sense of diverting the proper exercise of those functions at .
Chief Justice Bathurst, however, was in the minority in holding that the allegation did involve an allegation of corrupt conduct that the ICAC could investigate. Bathurst CJ held that if Ms Cunneen’s conduct limited or prevented the proper performance of the police officer’s functions, then the adverse affect was made out. Bathurst CJ held that the conduct had the potential effect of diverting the police officer from the performance of an investigation into the suspected crime of drink driving .
Even if the approach taken by other judges was correct, Bathurst CJ thought the allegation still concerned ‘corrupt conduct’ because, the ‘conduct complained of could have the tendency to frustrate or deflect the course of possible curial or tribunal proceedings or to impair the [judge’s or magistrate’s] capacity to do justice in the particular circumstances of the case’.
High Court Appeal
The ICAC has been granted special leave to appeal against the Court of Appeal’s decision to the High Court.
But if the decision of the Court of Appeal stands, it will place a significant limitation on the scope of matters that can be investigated by the ICAC. For example, the recent investigation into the the circumstances surrounding the award of the Mount Penny mining tenement and the grant of an exploration licence over the area to Cascade Coal involved the investigation of the conduct of individuals directed at deceiving public officials as to the involvement of the Obeids in the Mount Penny tenement. If the Court of Appeal decision in the Cunneen case is correct, the findings of corrupt conduct that were made by the ICAC are presumably flawed.