The High Court has rebuked the Independent Commission Against Corruption for the "scrappy" presentation of its case against Crown prosecutor Margaret Cunneen and raised questions about whether it has the power to investigate the high-profile silk.
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In a tense hearing on Wednesday, a five-judge bench convened in Canberra to hear an appeal brought by the ICAC against an order shutting down its inquiry into Ms Cunneen, NSW's deputy senior Crown prosecutor.
Chief Justice Robert French chastised the commission's legal team for failing to provide particular documents to the court to assist during the legal argument.
"I don't think I've ever seen this kind of scrappy hand-up before," Chief Justice French said.
Jeremy Kirk, SC, for the ICAC, apologised and said the commission was trying not to "over-burden" the court.
Mr Kirk was grilled by the bench over whether the ICAC was acting within its powers by launching an investigation into Ms Cunneen, 56, over allegations she advised her eldest son's girlfriend to feign chest pains to avoid a police breath test after a car crash.
Ms Cunneen's lawyers contend the watchdog does not have the power to investigate her because the allegations do not fit the definition of "corrupt conduct" in the ICAC Act.
The Act defines corrupt conduct to include any conduct of a private citizen which "could adversely affect" the exercise of a public official's functions. It says the conduct could involve criminal offences including perverting the course of justice.
A 2-1 majority of the Court of Appeal ruled last year the alleged conduct could not "adversely affect" the exercise of a police officer's functions, even though it involved perverting the course of justice, because there was no suggestion the officer acted dishonestly or partially.
The commission appealed against the decision to the High Court. Mr Kirk told the court that said the definition of corrupt conduct focused on "external forces" rather than the conduct of a public official.
He said a private citizen could be found to have engaged in corrupt conduct if they were seeking to bring about a corrupt outcome, even though the public official was acting honestly and impartially.
Chief Justice French and Justices Kenneth Hayne, Susan Kiefel, Stephen Gageler and Geoffrey Nettle raised questions about whether the ICAC's interpretation was too broad.
"In NSW any telling of lies to a policeman ... would, on this basis, be corrupt conduct," Justice Nettle asked.
Mr Kirk said this was not the case.
Justice Hayne, who fired a number of questions from the bench, said: "Corruption needs a giver and a taker."
David Jackson, QC, for Ms Cunneen, questioned the ICAC's claims that the ruling had serious implications for other inquiries.
The commission has delayed releasing its reports in inquiries into Obeid-linked company Australian Water Holdings and Liberal Party donations until the High Court makes its decision.
Mr Jackson said "it doesn't seem surprising" that parts of the former inquiry could be outside the commission's remit, because it involved allegations a government utility was defrauded and "doesn't seem to be a case regarding corruption".
The court reserved its decision.
