THE BOXING BUTTERFLY: A LIFE OF CONVICTION

Margaret Cunneen SC is the boxing butterfly who turned the tables on the ICAC, amidst prosecuting murderers, pedophiles and rapists, going on to launch a new life chapter as a defence barrister. There were the irreverent Skafs for gang rape, Robert “Dolly” Dunn for pedophilia, the Butcher of Bega for unspeakable medical malpractice and the Charbaji Brothers for an ice-fuelled torture session that ended in murder. Then there are those she has defended such as the Chinese movie producer who couldn’t speak English, yet taught inmates chess while awaiting trial. In 2022, Margaret Cunneen launched a memoire – done in collaboration with journalist Andrew L Urban. On Tuesday 28 June 2022, Margaret Cunneen – in conversation with Andrew L Urban – discussed highlights of her career.

THE BOXING BUTTERFLY: A LIFE OF CONVICTION

Margaret Cunneen & Andrew L Urban 

Andrew Urban: Hello, Margaret.

Margaret Cunneen: Good evening Andrew. And thank you for paying us the honour of being here, ladies and gentlemen.

Andrew Urban: I thought it would be a good idea to start with a little context; why am I here? I’m a journalist, and I’ve been for 25 years or so, a film journalist and critic. So, why am I here? How did I get to be here, standing next to Margaret? The story is simple. I always thought as a journalist in the film industry that films can change your life. Then it happened to me. It was a documentary made in 2013 by Melbourne filmmaker Eve Ash, about the police investigation into the disappearance of Bob Chaplin in Hobart. The film was about the police investigation into his partner of 18 years, Sue Neill-Fraser who was charged and convicted of his murder. The case is a clear case of a miscarriage of justice, and it really hooked me. From there on, I became, not a film journalist but a crusading justice journalist, if you like.

I have since covered many other cases, unfortunately. About five years later, I published a book of my work called Murder by the Prosecution. I dared to ask Margaret Cunneen to write the foreword, and she very kindly agreed. A little later, I asked her to work with me on a book about her. So, that’s where we came together, and that’s how we end up here, talking about The Boxing Butterfly.

As you will find, if you read the book, there are sections in it which deal not simply with Margaret’s successes, but her low points. One of them, curiously enough, was also a high point. That was her, now infamous and then applauded, speech to Newcastle University law students in 2005. The speech became infamous. It led to Margaret being prevented from prosecuting in the retrial of an already convicted gang rapist when the judge considered that the contents of the lecture made Margaret biased – and we’ll talk about why later.  What I’d like to ask you Margaret, first, is to explain what you meant when you ended the speech with a wonderful admonishment to students; “As lawyers, you have power. Be good with it.”

Margaret Cunneen: Yes. I was then a crown prosecutor and had been for many years, and I remained a crown prosecutor for 14 years after that. But I had seen that, particularly in the sexual assault sphere, there was a tendency by defence counsel to engage in a war of attrition against the complainant or complainants. And to take every point, every appeal, and coming back to stretch it all out so that, in the end, someone got defeated. It was just too hard to keep coming back after appeals and separation of trials and so forth. I wasn’t saying anything about the strength of the cases, necessarily. I simply suggested the courts should be considering the complainants in sexual assault – in a good way. Isn’t it extraordinary, I find myself always on the wrong side of fashion, perhaps, in these areas.

When I first started prosecuting child sexual assault cases in the mid 1980s, that was about all I did. It was me and a number of women along with a couple of men. We were regarded pretty much as the women’s auxiliary to the Director of Public Prosecutions’ Office. Other people – men, probably, – kept saying to us in the office, “Are you still doing those kiddie sex cases?” The area was looked upon very pejoratively as something that wasn’t quite crime. It wasn’t bank robberies and murders, it was probably a bunch of lies made up by women and children.

Sexual assault was a different style of offence in those days – so much of it was in the family and a bit in community groups or even gradually in some church groups. By and large, the cases were about incest and it was enormous, but it wasn’t really believed. Magistrates would throw cases out. In fact, the whole area wasn’t taken seriously much until I prosecuted the noted paedophile Dolly Dunn, in the late 1990s. I knew that it had to be proven to most of the community that there was such a thing as paedophilia. My parents, for example, would say, “No men are going to be involved with children; it’s impossible.” They just couldn’t believe it. I think my father thought my work was stupid too, a lot of it.

When I was at one stage appearing before a judge, I said, “Your Honour, you have got to watch this video.” He refused and told me to describe it in words. I said, “Your Honour, I can’t. You must have a look at some of this stuff so that you know.” What I really wanted was for the many members of the press to put it out there that this stuff does happen. Not only does it happen, but little children are inured to it, which you could see plainly on some of these videos. They were so used to it that to wave a $20 note – and this is going back a long time – in front of their faces, they just took down their pants and so forth.

So, that was something that had to be communicated to the public because they didn’t understand it. For this, I was very unpopular in this area of prosecutions, because it wasn’t yet the fashion. It had to be taken up by others to become the fashion. I was criticised so much for any expression of support for a complainant without saying anything about the strength of the case or the merits of the case.

Compare that to what has been said recently by one of the celebrities in the press, or even going back to a particular royal commission. Take some of the blanket statements about how people and priests, and how many, were guilty – forget fair trials, forget the presumption of innocence, forget due process. Today, I’m a defence counsel. I had expected, after so many years as a crown prosecutor, that the NSW DPP might do itself a favour and sometimes brief me in trials. Well, my accountant is glad that they never did.

So, I’m now entirely a defence counsel, and it’s so terrible for me to represent these people. Most people I represent are in the sexual assault area that’s burgeoning – what we could call “date rape”. There’s dozens, hundreds of cases. Half the cases in the District Court at the moment are young men, even up to middle aged men, who have had a date with a young woman, or gone out with her, or ended up drunk with her, and then it’s maybe days or years later that a complaint is raised.

For example, if a man says in court says, “Actually, it wasn’t a matter of consent because she was the initiator all the way through,” the response is “Oh, so you’re the victim then, are you? Objection”. Why is it now that prosecuting authorities have to find a victim in any sexual situation? But that seems to be the way it’s going.

My whole career seems to have been the progression of sexual assault cases. The book brings this out. I was flogged for giving a distinguished lecture, where I criticised some defence lawyers in cases of rape for displaying misplaced altruism for their clients. I never mentioned the name Skaf, let alone the real name of a man called MG, but his lawyers used the lecture to have me taken off a retrial, because someone in the audience of the University of Newcastle might have some connection to some jury in the future.

The court was very happy to write what some may think is a very agenda driven judgement. It was MG v R [2007] NSWCCA 57, two years after the lecture, which took me off the case. Charles Waterstreet was the counsel, instructed by Chris Murphy. He wrote me an email the other day, saying, “Congratulations on your book. MG and I still thank you for that lecture.” Because I was taken off and couldn’t appear in the case, and another prosecutor was appointed. The complainant had no relationship with that person, didn’t want to come back and the case was lost. Even so, MG didn’t get out of jail because he was in there for all the other rapes that he’d committed. So, just be fair. And sometimes – and I know this now in my fourth year as a defence counsel – sometimes you’ve just got to plead these people guilty. You can do a strong case for them on sentence, but some people, really, are without a case.

So, I’ve remained the same. I haven’t really changed that much. But the cases that are now being prosecuted have changed enormously. A crown prosecutor has the duty to look to see whether there is really a case to go to a court. I was taken before a royal commission after I’d done a commission inquiry of my own, concerning certain clerics in the Newcastle. But the minute that was finished I was to be torn to shreds, or attempts were made to tear me to shreds, for having, years before, written Advice for the Director of Public Prosecutions in Queensland.

It wasn’t a case of me getting out of work or something that I might have had to do – I just said there’s no reasonable prospect of conviction in relation to some noted case in Queensland. So, I was dragged into that royal commission and treated as though I had covered up child sexual assault because of that advice. I had to apprise the commissioner, and those assisting him, that it’s not a matter of whether the prosecutor believes the complainant, it’s a matter of whether there’s enough evidence to put before a court. It was somewhat prescient if one considers what happened to Cardinal George Pell.

Andrew Urban: It’s bizarre that that speech is now referred to by many lawyers as a significant and wonderful lecture, yet it led to one of the worst lows in your career. But there was another one, that was even worse in some respects. I’m sure that you will all remember how the Independent Commission Against Corruption targeted Margaret. The book goes into detail that you are probably not aware of, because very few people are, apart from the very small circle around Margaret. That was, in a way, an attack on your career Margaret, and character, without any grounds at all. But it didn’t seem like that. What was the first moment that you knew about it?

Margaret Cunneen: That was funny timing too, because it happened straight after I’d been before the Royal Commission. The worst thing that happened to me, probably, was that a rumour went around while I was doing the Commission of Inquiry in Newcastle that I may be appointed up to the Supreme Court. It was considered that the government was the right one for me, as it were. So, there was a two pronged attacked, and I think the same people were behind it, pretty much, or the same two people. After the car accident that brought me to investigation by ICAC, my house and my son’s house, were raided, without warrants, by a band of unlawful members of the Executive arm of government. I wasn’t in this car accident, my son wasn’t in it either, and there was absolutely no communication between me and the sober girl, my son’s girlfriend, driving the car. All ICAC had to do was ask the police whether the girl’s blood had been taken when she was admitted to hospital. Of course, it was and there was no alcohol in it. So, it was all completely misconceived. I think they knew that, but that didn’t matter, because all that was needed to impugn me was to throw the mud in the air and nothing would be resolved for years, and the target will be destroyed.

Andrew Urban: Why did they come to your house? What was the pretext?

Margaret Cunneen: They wanted phones. They took some of the phones, but there’s always more phones.

Andrew Urban: Because they believed what?

Margaret Cunneen: They were looking for any evidence that I had told the girl to fake chest pains after her car accident. It wasn’t a breath test matter. It was such a bad car accident she was taken straight away by the ambulance, well before my son got there. By that time, her blood had been taken. Justice David Levine smelt a rat. He found out that the operatives for ICAC didn’t really know what they were looking for. I knew that too, because at one stage, before they had crystallised their allegation, they asked me for my government e-tag. I said that I did not have a government e-tag. Then they asked what about the e-tag that was on the car being driven by the son’s girlfriend. My reply was that she was travelling north over the Harbour Bridge and you don’t incur a toll going north. It was an Englishman speaking to me and he did not know that. So, it took them ages to work out what the complaint was.

Andrew Urban: I think our audience would really love to know what it was that triggered this hunt for you. What was the phone call?

Margaret Cunneen: The car in the accident was a car that my kids used but happened to be in my name. I knew the smash repairer, because one of my sons works in that industry. I have had a beer with him at the pub. Some journalists in the Sydney Morning Herald think I don’t hang out with anyone other than work. As a matter of fact, the opposite is true, pretty much. Anyone with any sense would do the same thing.

So, I knew this smash repair chap. He spoke to me on the tow truck driver’s phone, after the accident, because the tow truck driver had taken my number. The tow truck driver was under investigation by the Australian Crime Commission for some kind of drug dealing. So, they were listening to my phone and the smash repairer asked me something about the young lady’s chest, because she’d recently had it operated on for the purposes of making it bigger. It was a conversation around that, we were talking about fake chests, and what did she go to hospital for, chest pains, and he was laughing. So, it came from that. But ICAC, of course, is notoriously lacking in levity or sense of humour, and didn’t get it at all. In fact, when it went to the parliamentary committee, the only person who understood it, or one of the few politicians, was Reverend Fred Nile. He said, “I get it, and I know Margaret, and that’s how she speaks. I understand her perfectly, and this is a joke.” What a wonderful and brave man he is to do that for me.

Andrew Urban: So, what does it tell you about the agency charged with rooting out corruption that acts on a secret phone conversation that wasn’t supposed to include you, about a joke, with a smash repairer about a sober driver? And unleashes its entire aggressive force against you? What does it say about that sort of organisation? But that’s just a rhetorical question. I would like to say that there’s a footnote in that story. Margaret was not only cleared, but ICAC was thoroughly slapped around for the way they behaved. ICAC hasn’t apologised. It’s never apologised to anybody.

Margaret Cunneen: My husband, Greg, went before the parliamentary committee into ICAC and asked for that. My case was very simple, anyone can understand that. Other ICAC cases are very complicated, and it’s almost impossible for even smart people, who are interested, to understand it all. Mine was so simple. Chris Merritt, from The Australian, has said many times since that he trusted ICAC until my case. So, my husband Greg asked for an apology. There was a big report. But the current parliamentary committee refused. I’m pretty annoyed, but not surprised.

Andrew Urban: The corporate culture of arrogance. This is a nice segue into the subject which is currently being debated hotly around the country; namely, a federal ICAC. You gave some advice to then attorney general Christian Porter about the subject a couple years ago.

Margaret Cunneen: That’s another terrible story, isn’t it? You can’t have a body that chooses its own targets. And full of public servants of the same mind. Anyone should be able to see the political assassination agenda of these bodies. They can’t be permitted to choose their own targets, just as a policeman doesn’t choose his own target, just as a royal commission doesn’t choose its own target. Someone else ought to say this should be investigated. The second thing is, of course, what’s happened to the presumption of innocence? What is the matter with these people that they are so into self-aggrandisement that they can’t wait until the end of the judicial process before they take the credit for the investigation? As detectives have always done, they can wait. They don’t want the public, and the press, looking into their investigation while they’re on foot. Nothing could be less likely to assist. So, that’s two obvious things.

Andrew Urban: But there is one thing I’d like to draw you on before we finish, and that is the rationale that you put in an article that I requested you to write. Which was, why a federal ICAC is not likely to be particularly useful as opposed to ICACs in the lower governments.

Margaret Cunneen: Well, already there are about 11 bodies in the federal sphere that look at corruption in various areas, for the police and other types of areas; the ombudsman and many more. But the higher in government one goes, the more layers there are, and the less money and so forth. There are just so many levels of decision making. So, I see that the NSW ICAC is back looking at local councils, where it belongs probably, because maybe there’s still something to see there. But very rarely in NSW, or in state governments, but even much more rarely in federal governments – then again, let’s see what happens in the next few years

Andrew Urban: Thank you very much Margaret.

Questions and Discussion

Question: Margaret, what’s the meaning of “The Boxing Butterfly”?

Margaret Cunneen: I’m a boxer for sport, and the butterfly reference was thought up by Andrew – who I’ve neglected to thank for forcing me to write these things. Would you explain what the butterfly means, because I forget.

Andrew Urban: Yes, it seemed to me that as soon as we started work on this, I was aware of the phrase that has been quoted by then commissioner of ICAC, Megan Latham, who advised lawyers that perhaps they should come and work in ICAC because it was like pulling wings off butterflies. I thought the fact that Margaret was the boxer it seemed appropriate considering how she battled against ICAC and won. The “boxing butterfly” was a good image.

Question: Does she sting like a bee?

Andrew Urban: Absolutely.

Margaret Cunneen: There’s the double meaning.

Question: How did you put the book together? You’re the editor and it’s all Margaret’s work of speeches and opinions and whatever else. So, how did you work together on it?

Andrew Urban: Well, the first thing that happened was that I took lawful custody of several boxes of transcripts, letters, papers, magazine articles and cards that Margaret had accumulated over the years. She never threw anything out. So, I moved out of home and put the boxes there. Then, came the task of going through it and selecting what we were going to use. There’s so much material, so it was really a matter of discussing what we should include. My aim was always to let her voice come through, because she’d written a lot of articles for magazines and newspapers, as well as having had a lot of articles about her. So, those two formed the bulk. Except, I asked Margaret if she would write personal recollections of a number of milestone cases; not legalistic, but very personal. They make some of the best reading in the book; they are very approachable, some of them are quite funny, and some of them are funny in a black way. It became a process of gathering her words, already written, and then we added some. I didn’t ask her to write the ICAC chapter. I wrote the introduction, and it came together as a chronicle, a chronicle of her career.

Margaret Cunneen: The wonderful thing is we did it. I thought that I might have a bit of time after I retired from being a prosecutor since the beginning of 2019. But then I got so many briefs in for my defence work, which has been very rewarding. A judge said to me the other day, “Isn’t it amazing how terrible all the people that you prosecuted were, but what paragons of virtue everyone that you represent are?” I have been proud to represent the people who’ve been rightly acquitted, quite a few of them since. So, the book has the benefit of balance between prosecution cases and defence cases that it wouldn’t have had, had I been on my game and doing everything as quickly as Andrew originally hoped. So, it’s better for the three or four years that it’s taken.

Question: Has Margaret Cunneen got any thoughts on how large sections of the media could be brought to understand and comply with subjudacy?

Margaret Cunneen: It looks to be worse than ever now, unless certain action is taken. I don’t really know. Unfortunately, even large slabs of the legal profession seem to have the view that with people, in certain fashionable crimes, we can abandon the burden of proof and call everyone victims from the start. This is really happening, and prosecutors are doing it. So, it can’t be surprising that members of the media are doing it too, as though people accused of certain crimes don’t even deserve a fair trial. I don’t know how to fix the journalists because I can’t even fix the lawyers.

Question: This is a question to both of you; you Andrew as a journalist and you Margaret as a lawyer. ICAC was renowned, in NSW, for leaking a lot of confidential information to one particular investigative journalist who ran this material in the Sydney Morning Herald, with no action being taken against them. To what extent, Andrew, is this ethical and proper journalism? And Margaret, why wasn’t action taken against them?

Andrew Urban: Well, I can answer that in one word; no, it isn’t ethical. I think it’s not ethical on the part of ICAC to do that. That’s totally contrary to their charter and the very notion of justice. But then, don’t forget, ICAC doesn’t operate like a court, it’s not like a criminal court. It doesn’t have anything like the same kind of protections for its victims.

Margaret Cunneen: And ICAC is always on a quest to increase its funding. It wants to show the public what it’s doing and who it’s after, and it’s better to do that before the case is finished because they generally lose their cases. Who can think of anyone else besides Mr Obeid and Mr McDonald who have actually gone the distance? They probably would have been found out by some other body anyway if they’re guilty. Not only does ICAC leak, it has been a bit of a two way thing. Sometimes the Sydney Morning Herald could commence in ICAC’s interest in a particular investigation. They could run a story and then it would be taken up. That was so over the regimes of two commissioners, now ended. We know that there was a counsel assisting who used to brief the paper every day and promise them headlines the next day and line up the witnesses just for that. So, it was all about public aggrandisement of what ICAC was doing. That scalp seeking was very unfortunate, because they probably missed any corruption that was happening if it was Joe Blow from the Public Works Department, because that would be on page 46, if in the paper at all.

Question: But was it illegal, and were there any restrictions?

Margaret Cunneen: Well, it happened to me too. When things were shut down, they still wanted to let stuff out, like all my text messages. I think that’s the reason I never got any briefs from the DPP. They even let out text messages that I’d written about my boss nine years before when he was not doing very well in an appeal against a triple murderer whom I’d successfully prosecuted. It was a pretty short text message, and pretty much to the point and not very decent, and I’d better not repeat it. But, of course, that was designed after ICAC was defeated, to make sure my career was harmed – what was left of it. The inspector said it was horrendous. But if the inspector says anything about ICAC, nothing ever happens. A parliamentary committee look at it, and then a few members on a particular party expurgate all the recommendations. This happened only recently – this year, and the recommendations were cut down to nothing. There’s no stopping them.

Andrew Urban: You’ll enjoy reading the inspectors report on ICAC.

Question: I wasn’t fully aware that your husband had sought an apology on your behalf.

Margaret Cunneen: And for him, and my family.

Question: And for everybody involved. But I’m also not aware as to what someone in your position, what rights they have when quite clearly the injustice that has been brought against you takes place. Did you ever consider, or do you have the capacity to bring any sort of court action against ICAC?

Margaret Cunneen: For a lawyer, I’m very anti litigation. After all, if I’m going to be involved in litigation, I might as well be one of the barristers making a quid out of it. I was very fortunate to be able to bring ICAC to a stop when I did, and the Court of Appeal went with me, and so did the High Court.

Andrew Urban: Can I just interrupt you there? What’s really telling too is that the Court of Appeal upheld Margaret’s case. It was ICAC who insisted on being gluttons for punishment, and went to the High Court, where they were beaten again. But they were so arrogant that they wouldn’t give up.

Margaret Cunneen: Yes, it’s often said I had to go all the way to the High Court. Well, I did have to go, but ICAC was the one who decided to take it there, and their behinds were tanned even worse by the High Court than in the state court – where they all know each other. But after that, there was a wicked thing called the ICAC Validation Act. Retrospective legislation was passed which pretty well stopped anyone doing what I’d done or seeking any relief, because it declared that all of ICAC’s malfeasances were now legal. There was no faster bill passed through the parliament than that one – overnight. So many politicians to whom I’ve spoken have said, “No one explained it to us.” Come on. That was outrageous, but it probably stopped any actions anyway. I don’t want to keep living all of that stuff, and money  – if you get any – wouldn’t repay what happened to my family. Remember, it wasn’t just me. My eldest son Steve, and his girlfriend Sophia, it was against the three of us. The High Court case is the three of us. That’s why I took the action. If it had just been aimed at me, I would have just run the gauntlet and done my best knowing that I was completely innocent.

I was always so incensed that because of me, these two young people were subject to vilification – they weren’t public servants, they didn’t know what ICAC was, they’d never heard of it. In fact, most people hadn’t before this. They’d never heard of it, but they were raided. They were saying “Are you the police?” We didn’t know what it was about. They had their phones taken, everything. But who knows what young people send; strange photos or whatever they do – and every parent here knows about that. Why should they lose all their rights, that every other citizen has, who’s not a public servant or a politician, a right to silence, a right to have things taken from them only by warrant? So, I moved quickly to protect them from this invasion that was no part of ICAC’s business.

Question: An amendment to the Crimes Act changing the law of sexual consent in NSW recently commenced. Do you have any particular views on that change to the law?

Margaret Cunneen: I’ve deliberately not looked at it terribly closely, because I’m still running cases on the old law, so I don’t want to get mixed up. All it’s going to mean is, it’s still going to be word against word. It’s still going to be “I did ask”, “No you didn’t”. It’s just another layer of things; it doesn’t really help. Maybe what they meant to do was to educate everyone with making sure that there was always consent. Perhaps that should have been tried in the first instance. But this is just going to lengthen cases. I guarantee you the vast bulk of the cases I’m seeing in this area are men of absolutely unblemished character and with very good defence cases, dealing with young women who might have drunk too much or might have told a very different story to their girlfriends the next day. Then girlfriends will get on the bandwagon and say, “I’ll take you to the hospital, I’ll take you to the police” and this train takes off. Parents have to mortgage their houses to get these boys represented. So, we’re seeing before the courts a genre of young man who never would have been before any court before in the history of mankind. It looks like a move to criminalise a greater range of people. So, it’s just going to be longer trials and more legal arguments. Whereas now it might cost you $200,000 to get justice after a false complaint of sexual assault, it will cost you $400,000 with the new laws.

Andrew Urban: Or your parents.

Margaret Cunneen: Yeah. And that doesn’t all go to me; the solicitors take most of it.

Question: Margaret, you were part of the Folbigg case. Were you prosecuting that?

Margaret Cunneen: No, I didn’t prosecute it, Mark Tedeschi did.

Question: Do you have any opinions on it? Because it’s interesting that it constantly seems to be getting attention. Can you comment on why you think that?

Margaret Cunneen: I represented Mrs Folbigg’s former husband in the inquiry conducted by Justice Reg Blanch about two or three years ago. I got to cross examine Mrs Folbigg. She’s never been cross examined before and I had her diaries. The cross examination was pretty probative of a number of things. We must bear in mind that even though two of her children had some arguable genetic predisposition to cot death, her diaries, though, were very damning. I was fairly proud of my cross examination. I was representing the undeniable victim; the man who’s four children had been killed.

There’s no suspicion attaching to him whatsoever, because he wasn’t there on many of the times – or most of the times. One child was attacked twice, and didn’t die the first time, but was blinded and became disabled. Not long after that, he died. I do have a particular view about it, and science is not going to answer it. It is surprising the arrogance of some of the scientists that come forward. But it’s curious what’s happened. It went to the High Court in the first place and Justice Blanch said, “It’s gone through every appeal, but after the cross examination of Mrs Folbigg, I’m more sure of her guilt than before.” And that’s what I think. And it’s very cruel and very difficult for Mr Folbigg, and his family, to go through all of this again.

Question: Does a professional lifetime prosecuting and defending sexual assault cases take a toll, and if so what sort of toll has it taken?

Margaret Cunneen: While I was a parent of young children, I was always thinking that someone was going to get them, so I was very suspicious of people. But I don’t know what I’d be like without that history of prosecuting and defending terrible crimes. Not just sexual assault, but murders. Somehow, I’ve always pretty much done cases of personal violence, sexual assault, murders and serious assaults. I was always briefed in those because it was a caring thing, because I’ve always been accused of getting too close to the complainants or the bereaved relatives. Now that I’m thought to get too close to my own clients, it’s interesting how very similar it is to be working with people that I think shouldn’t be before the justice system. So, it hasn’t been much of a change. But it’s good for you to give. And it’s been good for me to give. Maybe my sense of humour is very warped and very black, and maybe I drink too much beer to cope with it all. But I might have always drunk too much beer anyway.

Andrew Urban: I’m not going to say anything about that, but just if I can make one point on this. In my very first interview with Margaret, in her chambers as a defence barrister, I asked her what it was that connected the two worlds. She said something to me that really made sense. As a prosecutor, she felt empathy towards the victims. As a defence barrister, she feels empathy towards the accused. So, she’s living on empathy; that’s her drug.

Margaret Cunneen: I like people. I love people.

Andrew Urban: Most people.

Margaret Cunneen: But gee, there’s quite a few people who hate me.

Question: In light of social media and, as you say, the extraordinary commentary we sometimes get from the legal profession representing people, after 800 years, will we end up with just judge alone trials?

Margaret Cunneen: I hope not. I’m a great believer in juries. I think they’re very smart. Twelve jurors have got to be a lot smarter than one judge. They’ve got much more life experience, and much more wisdom. Remember, our society is very diverse now, and it’s actually very uplifting to see the diversity in juries. I’ve got a jury at the moment; very diverse racially and, of course, in every way. That’s great. It’s the connection with the community. Because, remember, judges are subject to professional development, in which they are told what we now all must think in the community about particular crimes, in particular the sexual assault area. It’s a brave judge to go against that tide. But the community will pull it back. The community has sons and brothers and fathers, and they know what goes on in life. Twelve jurors will mostly outsmart a single judge.

Question: Considering what you went through, considering that somebody in Victoria recently committed suicide as a result of their equivalent of ICAC, considering that Eddie Obeid etc probably would have got found out anyway, and considering that most of the ICAC work seems to be politically in one direction, do we need ICAC?

Margaret Cunneen: Certainly not.

Question: What would happen if we didn’t have ICAC?

Margaret Cunneen: The state would save an awful lot of money, and a really large number of very decent people that I know wouldn’t have had their lives trashed. Really decent people; Marie Ficcara, Michael Gallacher, Charif Kazal, Steve Pierce – I could go on and on and on. I really could. I’ve befriended all these people, and we stand together against this.

Andrew Urban: Not to mention a couple of premiers.

Margaret Cunneen: That’s right. Poor Gladys Berejiklian. It all had to be done so quickly, they couldn’t wait for two weeks while she delivered us from the Covid business. But they took her glory away because it had to be done then. Now, where’s the report? Eight months later, nothing. Why are we putting up with it?

Question: If you were in charge of a massive reform, or one that may start small but made impact for the community’s benefit, what reform could you bring to the judicial system?

Margaret Cunneen: I can think of a simple one, because I’ve been thinking about this with all the clients I’ve got. There’s quite a few hung juries, and maybe the more diverse juries, the more hung juries there’ll be. That’s very unfair on the people who are tried, because then they have to find the same amount of money for a jury trial again. Similarly, if a court of criminal appeal gives people a retrial on the basis that a judge has got the directions wrong, through no fault of their own they’ve got to come up with the money for another trial. If there’s a hung jury, maybe the DPP should have to cough up the money for the accused person, so they don’t have to pay for a trial that didn’t finish. Or if the courts have to pay when the judge gets it wrong, perhaps they’ll be careful. Perhaps the DPP will not put to trial cases that are so weak the jury can’t agree.

Question: Andrew and Margaret, what are you up to next? Are you writing books, giving speeches?

Andrew Urban: We’ve just spoken about Gladys Berejiklian, and that’s my next book. Which is basically ready to go, except I’m waiting for ICAC to issue its report. She didn’t participate, but she knows it’s there.

Margaret Cunneen: I’m booked out to the middle of next year. I’ve got some good cases coming up, deserving cases, and I’ll keep working hard for my client which is a great a burden in many ways, but it’s very simple when you’re only working for one person.