Briefing paper

ICAC v Cunneen: the power to investigate corrupt conduct

15 Apr 2015

A majority of the High Court has dismissed appeal from the decision of the NSWCA relating to the powers of the Independent Commission against Corruption under the Independent Commission against Corruption Act 1988 (NSW).


Since its establishment in 1988, the Independent Commission Against Corruption (ICAC) has been a major feature of the NSW political landscape, never more so than during the years of the 55th Parliament, from 2011 to 2015. Weekly, often daily, new claims and findings of corruption were made, across the entire political landscape, from State to local politics, affecting the public and private sectors alike; in ICAC v Cunneen, ICAC’s reach extended into the legal profession. Margaret Cunneen SC is the State’s Deputy Senior Crown Prosecutor.

In brief, that case concerned the powers of the ICAC to investigate allegations that Ms Cunneen, along with her son Stephen Wyllie, with the intention of perverting the course of justice, counselled her son’s girlfriend, Sophia Tilley, to pretend to have chest pains to divert police from conducting a blood alcohol test at the scene of an accident. The alleged conduct did not concern the exercise of Ms Cunneen’s official functions as a Crown Prosecutor. ICAC contended that the alleged conduct was corrupt conduct because it could adversely affect the exercise of official functions by the investigating police officers and by a court that would deal with any charges arising from the motor vehicle accident. The nub of the legal argument was whether such allegations constitute “corrupt conduct” under the ICAC Act 1988. In the relevant circumstances, by section 8(2) of the Act, the conduct at issue could constitute “corrupt conduct” if it could “adversely affect” the exercise of official functions by a public official.

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