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Bar Talk
6 October, 2005  
No carpet sweeping

What’s all the fuss about crown prosecutor Margaret Cunneen’s Ninian Stephen lecture? The complainants climbed onto their high horses, tethered conveniently near

imageMost citizens haven’t read Margaret Cunneen’s by now famous Sir Ninian Stephen lecture which upset so many with sentence such as: “There seems to be a fashion, among some in the criminal justice system, for a kind of misplaced altruism that it is somehow a noble thing to assist a criminal to evade conviction.”

We’ll do a little public service and post the whole lecture here – then you can decide whether the NSW senior crown prosecutor is, as celebrity lawyer John Marsden insists, a “disgrace to our profession”.

Christopher Murphy, another solicitor was so upset by the speech he wanted the DPP to remove Cunneen from prosecuting his client in a rape case retrial.

N. Cowdery declined his invitation to take “steps … to address our concerns”.

So now it’s up to former landscape gardener, film producer, taxi driver, lumberjack, restaurateur and now Legal Services Commissioner, Steven Mark, to decide whether Cunneen has stepped over some magic and movable line.

If she has, then as Mark Latham might say, “I’m a monkey’s uncle”.

Just look at the high-handed tone, not to say plodding style, of Marsden’s missive to Mark, dated March 31.

“Dear Mr Marks [sic],

I refer to my letter of complaint re Margaret Cuneen [sic] and the speech made to the new [sic] University of Newcastle Law School.

I, at the time, had only read the press reports. I have now read the speech. I do not accept, under any circumstances, that this matter can be brushed under the carpet.

This lawyer has stepped far outside the mark in the public forum. This lawyer has sought to bring other lawyers, who have put their time and energy into the service of the law, into total disrepute.

This lawyer is a disgrace to our profession and should be stood down immediately whilst she is investigated by the Legal Services Commission.

It is not the first time a prosecutor has behaved inappropriately. It probably wont be the last. I must say that the way the Bar Association dealt with the previous prosecutor who behaved inappropriately leaves a lot to be desired. I hope on this occasion this matter is not swept under the carpet and this person is appropriately dealt with by the Legal Services Commission.

I would like to be informed of all developments. I am presently still a Partner of Marsdens. However, from the end of June 2005 I will retire from that position because of ill health. I will then be moving interstate and I can be contacted on [mobile number] or you can forward correspondence to me advising me of the outcome of this inquiry at … Sheraton Mirage Resort, Port Douglas.”

It is refreshing to see Marsden so adamant about upholding professional standards, particularly after the unfortunate finding by the trial judge in his defamation action against Channel Seven that he lied on oath.

The NSW Law Society wasn’t too fussed about that. It wrote to Marsden after the case and asked him a crucial question: was he really a smoker of dope?

Murphy also is an assertive type. Apart from his complaint to the Legal Services Commissioner he wrote to DPP N. Cowdery saying that part of Cunneen’s speech referred to one of his clients who successfully appealed against his conviction for aggravated sexual intercourse without consent. The Court of Criminal Appeal ordered a retrial. Murphy told Cowdery:

“A senior Crown Prosecutor should be aware that it is inappropriate to comment on matters still to be determined by the Court, particularly matters concerning a re-trial before a jury. The extent of media coverage of Ms Cunneen’s remarks about issues in the re-trial seriously puts in jeopardy the ability of [my client] to receive a fair trial. There is significant risk that a future jury will have read the media reports and be influenced by the personal views of Ms Cunneen about [my client’s] current matter. Furthermore, a member of the public would be deeply concerned that a prosecutor who made public comments supporting the complainant’s allegations could execute her duties properly, dispassionately and fairly in any subsequent trial involving that complainant. Another prosecutor ought to be appointed if the matter proceeds…

Please advise what steps you intend taking to address these concerns.”

Murphy’s client was not named in Cunneen’s lecture. She talked about a case where the trial judge had ruled inadmissible a photograph of the accused and therefore the identification evidence that depended on the photo. She pointed out that the judge had said that if the police had extracted a still from a video of the search of the accused’s premises, then that would have been acceptable. The decision was successfully appealed to the Court of Criminal Appeal and the retrial is not likely to take place till early next year (about five and a half years after the sexual assaults).

Cunneen’s point in her lecture was about how better and more technologically driven police investigations have correspondingly given rise to longer and more difficult trials, with more argument about admissibility and how evidence was obtained.

Still, it is fitting that we don’t end without a reminder of things past. It was only a few years ago that Margaret Cunneen received the following warm, if syrupy, letter:

“This is just a short note to congratulate you on the result for the perpetrator of the horrendous crime on my client, [name deleted].

I also want to say to you, that [my client] has told me of the very kind, caring and understanding manner in which you dealt with him during the difficult time he had giving evidence in the Court.

We, as lawyers, often forget the people who are witnesses, victims or even defendants are fellow human beings. We often tend to not treat them with care, love, humanity and understanding.

[My client] has told me that you were outstanding in the way you treated him. I, as [his] solicitor, thank you for your kindness.

Yours faithfully,

Marsdens Law Group

John R. Marsden
Senior Partner”