Ian Neil takes barrister websites to a whole new level of glamour … BarNet takes over authorised Victorian reports … Politicians and commentators warned off the judicial patch … John Nicholson joins Inspector Dave … Context and information missing from Inspector Dave’s Cunneen report  

Ian in his chambers; Ian walking down the stairs at the Trust Me building in Sydney’s King Street; Ian having coffee in Angel Place; Ian having coffee in Barcelona where he is also diarising his thoughts about CFMEU v BHP Coal; and there’s even a YouTube vid of a couple of lawyers at Petra in Jordan discussing The Modern Contract of Employment, by Ian Neil.  

While BarNet’s Jade is hot on our lips, it’s a thrill to report that it has knocked LexisNexis off its perch and will take over publication of the Victorian Reports. 

BarNet provides telephony services, web hosting, online case reports, and legislation databases. LexisNexis and its predecessor had published Vic Reports for over 100 years. 

The five year contract to BarNet was awarded by Yarraside’s Council of Law Reporting (Cameron Macaulay, chairman) after five months of negotiating. 

BarNet will publish the reports in hard copy and online (pay per view). Faster and cheaper is the aim. 

The most important VicSupreme decisions will be reported, along with the traditional judge-authorised case summaries. 

This is a big breakthrough for BarNet into the official reports league – the traditional money spinners for the mainstream law publishers. 

Here’s the announcement from Vic’s Council of Law Reporting 

Leaders of the bench and bar have been out on the ramparts pouring boiling oil down on the heads of a NSW minister of the crown and a 2GB shock jock. 

The member for Bega and minister for transport, a fairly undistinguished performer called Andrew Constance, stood-up in parliament and called on Dizzo judge Clive Jeffreys to resign after mucking-up the sentencing of Maurice Van Ryan, the former managing director of Bega Cheese who pleaded guilty to 17 child sexual assaults against nine victims over 11 years. 

Jeffreys slotted Van Ryan in 2015 to 13 years with seven years non-parole. The CCA increased the aggregate sentence to 18 years and non-parole was almost doubled to 13-and-a-half years.  

CCA judge Robert Hulme gave Constance a bit of ammo, saying: 

“I am of the view that the sentence is manifestly inadequate. There were a number of specific errors made by the judge in his approach to sentencing which may explain the inadequacy of the sentence. Even if the errors were not the cause of the inadequacy, the sentence is so unreasonable and plainly unjust that it amounts to an affront to the administration of criminal justice.”

Radio shocker Ray Hadley also went to town in his Daily Smellograph column, attacking the judge for a sentence he hadn’t yet handed down in another case. 

It’s OK for appeal judges to whack those lower down the judicial food chain, but not posturing politicians or radio rabble-rousers. 

Justice Steven Rares in a statement on behalf of the Judicial Conference of Australia, said that Constance’s criticism of the judge neglected to place those sentencing decisions in the context of numerous other sentences he had imposed.  

“The decisions of any sentencing judge are obviously a matter for legitimate debate. However, personalised attacks on a judge are grossly unfair. It must be born in mind that judges cannot respond to such attacks without compromising their role … 

Like all human beings, even media commentators and politicians, a judge occasionally can make honest mistakes. That is why we have courts of appeal and not mob rule.” 

The NSW bar also came to the judge’s rescue, with prez Noel Hutley saying that the parliamentary attack, “represents a fundamental misunderstanding of the separation of powers … The justice system has its own checks and balances to ensure that justice is done”. 

In the spirit of legitimate debate, hacks at Channel 7 dug out five other of Judge Jeffreys’ sentences from 2013 and 2014 that had been increased on appeal.  

You can read Andrew Constance’s full-blooded parliamentary contribution to judicial independence here  

John Nicholson SC has come aboard as the assistant inspector of ICAC. 

He’ll be working with Inspector Dave Levine who says he has “concurred in the appointment”.  

Nicholson is a former senior public defender and District Court judge and by all accounts a decent person and a good lawyer. 

Since he retired from the bench he has done a lot of pro bono work for the Aboriginal Legal Service. 

It’s unlikely you’ll find Nicholson making prejudicial remarks about ICAC or Megan Latham while an investigation is underway or writing a report, dripping with personal animus, whose principal findings were open to being shredded.  

For instance, one of Levine’s key findings was that the “notice to produce” served on Margaret Cunneen, so that ICAC could take possession of her mobile phones, was “contrary to law” and that if something is required immediately the proper mechanism is a search warrant.  

This point was being briefed to the News Corp stenographers by the Cunneen camp even before Inspector Dave’s report saw the light of day. 

However, Latham and ICAC contend that Levine is not only wrong on this point, but has selectively reported aspects of the legal opinion he received on the phone seizures.

ICAC used section 22 of the ICAC Act as the basis for the notice to produce. 

Tom Blackburn SC and Peter Kulevski prepared an opinion for the inspector about this procedure. 

Levine’s report on the Cunneen case said that the lawyers’ advice was that the seizure was unlawful. However, ICAC says counsels’ actual opinion on this question was somewhat different. This bit from the advice was missing from Levine’s report: 

“… on the state of the authorities, a notice pursuant to sec 22 of the ICAC Act may require production ‘forthwith’ if production is compelled in otherwise lawful circumstances.” 

The two counsel say they had no information about what occurred when ICAC officers arrived at Cunneen’s home. 

However, Levine was provided with the statements of commission officers who had served the notices. They said that Cunneen had consented to them entering her home; that she did not request they leave; she offered them a cup of tea; that she and her partner gave the phones to the officers; and that she rang for legal advice while the process was underway and then claimed privilege in relation to the production of the phones. 

All of which was relevant to the lawfulness of the service of the s.22 notices and which, according to ICAC’s response, was not passed on by Levine to the counsel whose opinions he sought. ICAC’s said: 

“In support of the finding of unlawfulness, the inspector relied upon ‘facts’, namely the assumptions relied upon by the joint counsels, for which there was no evidence.” 

ICAC subsequently executed a search warrant on Cunneen’s home – the idea being to overcome the privilege that had been claimed in relation to the notice to produce. 

Levine described this as a “farce [and a] sham”. 

ICAC says that it clear from the advice of Blackburn and Kulevski that they knew the search warrant had been sought to overcome the privilege claim. 

In their advice they also note that they “proceeded on the instructed assumption that the officers of ICAC were attempting to retrospectively legitimise earlier unlawful conduct”.

ICAC added that, “Once the ‘instructed assumption’ is displaced, the opinion based on that assumption falls away”.  

You can read the two joint legal opinions in full, here and here 

The “illegal” notices to produce was a major complaint coming from the Cunneen camp and dutifully echoed by the hacks at News Corp. 

It’s as overstated as is the repeated claim that Latham is hiding the advice from Gavin Silbert and Michael Sexton that “cleared” Cunneen. 

Apparently, Victoria’s chief crown prosecutor advised she not be charged. 

The NSW DPP sought advice from the NSW solicitor general, Michael Sexton, who then passed it offshore to Gavin Silbert. ICAC never sought the advice it is now accused of hiding. 

The tireless newspaper claim that this is some sort of weird cover-up by ICAC is another instance of either lax or dishonest reporting. Take your pick.