What lies behind ICAC’s Margaret Cunneen investigation?
Margaret Cunneen, SC, is deputy senior Crown prosecutor in New South Wales, and a member of the Bar Council. In 2012 Cunneen was appointed commissioner of the NSW Special Commission of Inquiry into matters relating to the police investigation of child sexual abuse allegations in the Catholic diocese of Maitland-Newcastle.
Since 1990, during her stellar career with the Crown prosecutor’s office, Cunneen has been responsible for many high-profile convictions, especially of rapists and child abusers.
Cunneen has dodged many shots during her career at the NSW bar, but now Madam Crown’s star has been tarnished, and she’s come out fighting. “I don’t care what they do to me,” Cunneen tells The Saturday Paper, “but starting on my family is beyond the pale.”
She is referring to a wide-ranging investigation being conducted by the NSW Independent Commission Against Corruption, which is raising allegations of perverting the course of justice at Cunneen and her son and his girlfriend. The allegations, if made good in court, could carry a sentence of up to 14 years.
So how did this happen? As the question being whispered in NSW legal circles goes: “Who shot Margaret Cunneen’s career?”
Some put the genesis as far back as the Sir Ninian Stephen Lecture she delivered to students at the University of Newcastle Law School in 2005. Opening her address, she said: “I am neither a distinguished justice of a superior court or an eminent academic. I have, for 28 years, been a public servant, a foot soldier in our legal system.”
Cunneen acknowledged that a Crown prosecutor does not represent the complainant but rather the people. She spoke passionately of how being caught up in the legal system can hugely affect victims.
“While NSW, which started off as a jailhouse, has now reached the civilised position of achieving a myriad of protections for the rights of the accused person,” she said, “the course of some cases through the criminal justice system may leave you to ponder when the undoubtedly innocent (as opposed to the merely presumed innocent), the victims, will have their liberty restored.”
The foot soldier was nearly court-martialled in some legal circles. Others paraded her emotional delivery as a fine example. But her heartfelt admissions of being a caring person set the scene for more career obstacles to overcome.
It doesn’t end there, however. Other pundits credit the shooting down of Cunneen to a more recent event: her appearance before the royal commission, chaired by Justice Peter McClellan, who as a NSW Supreme Court judge has twice been highly critical of Cunneen’s role as a prosecutor, and who precluded her from acting in a gang rape retrial because of comments she made about the original trial in her 2005 lecture.
Justice McClellan, who later acknowledged he had not appreciated how devastating sexual assault was to a victim, slammed Cunneen’s public show of support for the 17-year-old who had been raped 25 times by 14 men in four locations over six hours. Leaving court after a guilty verdict in that case, Cunneen told the waiting media: “I commend the quality of the police investigation and the fortitude of the victim.”
Another black mark.
In a joint judgement, McClellan and his fellow judges on the Court of Criminal Appeal, justices Virginia Bell and Cliff Hoeben, said a prosecutor had to be impartial and forbade Cunneen from retrying the case when the appeal against that conviction was upheld.
McClellan has also been critical of her handling of the second, and successful, prosecution of Jeffrey Gilham, accused of murdering his parents and brother in the early ’90s, which was overturned on appeal before McClellan, due to technical evidence not known at the time to the prosecutor.
Royal Commission appearance
In a fresh round of fire, Cunneen was called last month to provide an explanation to the McClellan Royal Commission into Institutional Responses to Child Sexual Abuse about advice she gave 10 years ago against prosecuting alleged sex offender swimming coach Scott Volkers, who was charged with molesting teenage girls.
Cunneen says that her advice to the Queensland DPP in July 2002, which concerned allegations of sexual abuse against Volkers made by 13-year-old girls he was coaching, was that those allegations would have been very difficult to substantiate at trial.
“The role of the prosecutor is to represent the state; that is, the people,” she says. “It’s a filtering process, and prosecutors become very expert in knowing what will work for a jury with a reasonable prospect of conviction. Trials are very hard on the victims, too. In some cases it’s kinder to the victims to say, ‘We are not going to run this case, because if the jury returns a not guilty verdict, you’ll be branded as a liar and we won’t get another opportunity to bring the alleged perpetrator to justice.’ ”
In 2002, Volkers was committed for trial in Queensland on seven charges of molesting three young girls he had been coaching in the 1980s, only for the charges to be dropped two months later by then Queensland DPP Leanne Clare, SC, citing no reasonable basis for conviction.
Clare had sought advice from her NSW counterpart, Nicholas Cowdery, QC, who delegated the task to Cunneen.
Cunneen says: “The complaints were over 30 years old. One of the girls had returned to Volkers four years later to obtain accreditation as a swimming coach. There were problems with much of the evidence. With 38 years’ experience behind me, I provided my professional advice to that effect.”
At the commission, Cunneen faced questioning that bordered on the personal as she repeatedly referred to the need to persuade a jury beyond reasonable doubt.
“Where is the balance, Ms Cunneen?” McClellan asked.
Senior barristers have raised the question of “apprehended bias” on the part of Justice McClellan – that he might not be impartial in the matter. He has declined to comment. Many colleagues have shown their support for Cunneen by re-installing her to the NSW Bar Council recently with the second-highest number of votes after the president.
But the grilling by McClellan was just the beginning. ICAC is now pursuing Cunneen over allegations that she and her son, teacher Stephen Wyllie, told his girlfriend, estate agent Sophia Tilley, to fake chest pains following a car accident in May to avoid being breath-tested by police.
How ICAC became aware of these allegations has not been made clear, and speculation is rife about the source. Cunneen, however, now believes that a relative lodged the complaint with ICAC, though she is reluctant to name the source publicly.
“I deny the allegation, which can only have been malicious,” she tells The Saturday Paper. “The complainant had third-hand knowledge of the accident and she saw it as an opportunity to cause me grief in court, as she has also done to one of my sisters. It’s so distressing to think that a misinformed family member could be so vindictive.”
Cunneen’s distress is not only caused by the necessity for her to step aside from the job she loves, but also the fact that two young people have been dragged in, denied their rights to silence and had their future reputations and job prospects placed in jeopardy.
In her case, the damage has been done. Cunneen stood down from her position on October 7 and issued a Supreme Court challenge to ICAC, questioning its remit to hold a public inquiry on the matter and submitting that the allegations had nothing to do with her job. On November 10, Justice Hoeben ruled that ICAC had the power to investigate her private affairs and it could proceed.
In the November 10 hearing, Cunneen’s barrister put a range of submissions to the Supreme Court, including Cunneen’s denial of claims she told her son’s girlfriend to pretend to have chest pains to avoid a blood test. Tilley had, in fact, already been tested for drugs and alcohol, well before the comments were alleged to have been made. The blood reading was 0.00 and the accident was not her fault, although she doesn’t have a great driving record.
Cunneen says: “The car she was in was hit on the driver’s side, and the driver’s side of the car was pushed up into the air, crashing down onto parked cars on the passenger’s side, where Sophia was trapped by her seatbelt. Stephen was not in the accident but ran to the scene close by and notified his father who told me. When I arrived, after fighting through the traffic, Sophia was hurt and distressed. She had recently had surgery on her breasts and all these things may have contributed to her being in pain and shock.”
When Cunneen lost the first round of her challenge, the foot soldier reloaded her blunderbuss and Arthur Moses, SC, lodged an appeal. Moses told the court that Cunneen’s son and his girlfriend had become “collateral damage in pursuit of Cunneen”. The appeal was heard on November 17 and the full bench reserved its decision.
ICAC has undertaken to stay further investigations until the outcome of the appeal is known.
If Cunneen is right and the complaint was laid by someone seeking to damage her career, that raises at least two questions: should ICAC spend its time investigating anonymous “tipoffs” in matters ordinarily left to the police, and is it being used as a tool for revenge to knock off a crusader who doesn’t always march in tune with the other members of her profession.
This article was first published in the print edition of The Saturday Paper on Nov 22, 2014 as "Thorny Crown". Subscribe here.