ICAC could set ‘dangerous precedent’ with NSW prosecutor
Deborah Cornwall reported this story on Thursday, November 6, 2014

MARK COLVIN: The New South Wales corruption watchdog will learn in the next 24 hours if it can still go ahead with an inquiry into one of the state’s leading prosecutors, Margaret Cunneen.

The prosecutor’s legal team launched a challenge in the Supreme Court this week, arguing the ICAC inquiry should be shut down.

Cunneen’s lawyers have demanded that the ICAC be accountable for its decision to go after the prosecutor and warned that if the inquiry were to go ahead, it would set a dangerous precedent for anyone in public office.

Deborah Cornwall was in the court today. She joins me now. So what news since yesterday?

DEBORAH CORNWALL: The hearing went for about three hours today but it was very heavy legal argument, because this challenge really does hinge on whether the ICAC can be made the accountable to the court at all.

And so Justice Hoeben said today that it throws up fundamental issues about how the ICAC uses its quite draconian powers. So the law is in uncharted territory here.

MARK COLVIN: People have complained about being dragged before the ICAC quite a lot in the past. I mean, there has been two decades of this. Why is this case different?

DEBORAH CORNWALL: I think this one has really rattled the legal fraternity because they’ve gone after one of their own.

Margaret Cunneen is the most high profile prosecutor in the state. The ICAC has accused her of attempting to pervert the course of justice. Essentially, the ICAC is saying that Margaret Cunneen told her son’s girlfriend to pretend to have chest pains when she was in a car crash in May so she could avoid getting blood tested after a car crash.

Now we know that the girlfriend’s blood tests came back 0.00, negative, so it’s not clear why the ICAC has gone and used all its extraordinary powers to investigate Cunneen, or her son and his girlfriend.

This is all happening in a very tight legal community. The New South Wales Bar is quite small.

DEBORAH CORNWALL: It’s a very small pond, that’s right, and in fact the ICAC commissioner, Justice Latham, has had to pull out of this inquiry into Margaret Cunneen because at one stage she was her supervisor at the DPP (Director of Public Prosecutions) office in the early 90s.

And there’s been an absolutely steady flow of barristers into the courtroom in the last couple of days because they are genuinely quite alarmed about the direction the ICAC has taken in this inquiry into Margaret Cunneen.