It’s official. Independent Commission Against Corruption (ICAC) Inspector, David Levine QC, has given a damning critique of the agency’s misguided persecution of high-profile prosecutor, Margaret Cunneen. Levine, a former ICAC Commissioner, described the investigation as a “low point in the organisation’s history”, as well as “unreasonable, unjust and oppressive maladministration” in his report released on 4 December 2015.
Levine was responsible for looking into the ICAC’s investigation against Cunneen, who allegedly gave her son’s girlfriend advice as to how to avoid taking a breath test after a car crash. Reportedly, she said to feign chest pain. Australia’s High Court in April this year held that ICAC could not even investigate the matter as it fell outside its jurisdiction. Levine thought, however, that it should never have even got that far.
He described the investigation, including a raid on Cunneen’s house, as “farcical” and that based on the evidence collected, ICAC should never have even pursued the matter. Levine was also critical of releasing the prosecutor’s personal text messages, tracing back almost ten years.
Presiding ICAC Commission, Megan Latham, attracted Levine’s particularly damning criticism, including for her apparent conflict of interest. Latham knew Cunneen for over 25 years when she had been a Crown Prosecutor.
Some are now asking whether the heat in the report is due to Latham and Levine (both former Supreme Court Judges) having bad blood between them. But this matter caused onlookers to scratch their heads from the outset. Especially when one looks back at ICAC’s significant impact in previous cases.
Levine found almost everything ICAC did during the investigation to be unlawful and/or an abuse of its powers. From the way Cunneen’s mobile phones were seized and handed over to the Director of Public Prosecutions, to placing her husband, Greg Wyllie, under surveillance. Levine will release a broader review of ICAC’s powers and its conduct in past and current investigations in early 2016.
Of note, the Cunneen affair did not result in amending the ICAC Act to broaden its powers. Rather, it was changed to ensure that the Commission could only investigate serious or systemic corruption and not matters “trivial” matters such as these.
Latham responded to the report by suggesting that Levine made errors of fact and law, had not provided ICAC officers the opportunity to meet the adverse findings in the report, and even suggested the Inspector may have broken the law by releasing information about the issue of a telephone interception warrant.
Since then, other senior legal voices have joined the fray with some criticising the report’s “vehemence”, and others suggesting that Latham should consider calls for her resignation “very seriously”.
The moral of this story? If you want to work in a collegiate profession, do not become a Crown Prosecutor or a Supreme Court Judge. From the outside, this situation looks a little like a nest of vipers – worse than politics!
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