New sexual consent laws in NSW will not help – Cunneen SC

Hold on, warns MARGARET CUNNEEN SC, in her talk addressing the Rule of Law Education Centre conference, The Presumption of Guilt, on June 15, 2021. 

“Ladies and gentlemen, the NSW Government is about to barge through your bedroom doors,” began Margaret Cunneen SC, signalling her disapproval for proposed new laws requiring active and clear consent prior to sexual intercourse. It doesn’t even sound reasonable, profoundly misunderstanding human behaviour. Cunneen argues that complainants should not be referred to by police or the media as ‘victims’ unless a crime has been proven in court, and that “we can’t have greater fairness for complainants without compromising the rights of accused persons.”. But perhaps most tellingly, she says the new laws won’t change the dynamic of ‘he said / she said’ in the final analysis. And she has many thought provoking things to say.

See all speakers (scroll down for Cunneen)

Margaret Cunneen SC, former Deputy Senior Crown Prosecutor (NSW) and now in private practice as a defence barrister, is President of the Rule of Law Education Centre, formed in 2009, an independent, non-partisan entity.


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11 Responses to New sexual consent laws in NSW will not help – Cunneen SC

  1. Garry Stannus says:

    Bret Walker AO SC, was the first contributor to the Rule of Law : Education Centre Presumption of Guilt Conference. His contribution included the following:

    “Unfortunately, both politically and socially, in everyday language, people – many of them lawyers, so I’m not blaming so-called layman for this – speak of the ‘presumption of innocence’ … and what I’m concerned about is a social usage of the language to suggest that the ‘presumption of innocence’ – as if it means somehow that at the time of speaking, that is, before an accused has been convicted, the person actually is innocent.
    “So of course that person has the presumption of innocence, but what a terrible thing if we thought that everybody was thereby compelled to regard them as innocent. The prosecutor mustn’t – that would be appalling. I hope the police who investigate and put the brief together for the prosecution don’t think so either – that would be appalling. In short, presumption of innocence involves an open mind about the outcome of a trial, but not the magical thinking that says that until a person is convicted, they were innocent.
    “I would very much like to see ‘presumption of innocence’ as being a cardinal principle of the fairness and propriety and decency of a criminal system that calls for accusations to be made good”.

    Walker, in my view, has told us that the ‘presumption of innocence’ does not imply an actual presumption of innocence, but rather, that it means that that the court process must be open not only to the possibility of guilt, but also to the possibility of innocence. So, again in my view, Walker is (elsewhere in his address) saying that the ‘presumption of innocence’ is a label without real meaning and must be understood as simply residing in the onus of proof and in a required standard of proof.

    Walker spent some time favourably comparing the ‘accusatorial’ mode of trial with the exculpatory type. Unfortunately, in my view, in his remarks he did not canvass inquisitorial systems, which may also include the so-called ‘presumption of innocence’ principle. I have not commented on his remarks concerning the Conference question: the ‘Presumption of Guilt’ and neither have I commented on the contributions to the Conference of Ron Hoenig MP and Margaret Cunneen SC …yet.

  2. Poppa Madison says:

    IMHO. All due care and protection of those traumatized by sex crime, be it current or historical must be a default reaction to their disclosure. Equally, so must the care and protection of persons Accused of such crimes forever as long as their culpability remains unproven. All inculpatory claims and evidence against an Accused person must be given due initial credence and subjected to forensic psychiatric investigation and testing as to their credibility validity and justification. Equally, all exculpatory claims and evidence put forward by an Accused in the face of Allegations made against them must be given due credence and subjected to forensic investigation and testing as to their credibility, validity and justification.
    The weight balance of inculpatory to exculpatory FACT based evidence must be relied upon to determine the culpability of an Accused, not assumption or presumption.
    Accused and Accuser must at all times be treated according to their fundamental entitlement under the UN Charter of Human Rights.
    If culpability of an Accused cannot be proven beyond allegation and denial by reliance upon FACT based evidence, the record of what the Claimant and Defendant relied upon to substantiate their separate arguments, to be blockchain recorded so that should future factual proof arise, each party can be held liable to answer to it. In such cases of Non Sequitur, neither party should be given any degree of firm belief over the other. This I assert in the best interests of ensuring that Truth in Justice be served.

  3. Robert Greenshields says:

    Yes, I knew as soon as I saw the name it rang a bell somewhere. Grave doubts in mind as to her being a pillar of true justice and a credible representative, of those who through their intellect and altruism enable those with lesser capabilities.

    • andrew says:

      You need have no doubts about Margaret Cunneen SC; I can vouch for her. But the truth also vouches for her. You may like to find out … Here is a start:
      The ICAC allegations were that she had perverted the course of justice when she advised her son’s girlfriend, Sophie Tilley, to fake chest pains as a way of avoiding breath testing following a daytime accident in which she was involved. Tilley was found to have no alcohol in her blood.

      In fact, Cunneen was not speaking to Tilley in that May 31, 2014 phone call; she was joking about it with the tow truck operator … whose phone calls were coincidentally being covertly recorded by the Crime Commission in relation to other matters, totally unrelated to the job at hand.

      Cunneen eventually took the ICAC to the High Court and in April 2015, the High Court ruled in her favour, saying the ICAC had no power to investigate her over the allegations of perverting the course of justice.

      Cunneen’s victory in the High Court left ICAC seriously weakened in the eyes of the public. It was further damaged at year’s end after Inspector Levine’s investigation into Operation HALE, which delivered a scathing indictment of an operation that should never have been contemplated.

      • Felix G says:

        About Margaret’s another case:

        “If only a Court hearing Neill – Fraser’s appeal had said the prosecutor had caused a miscarriage of justice by misrepresenting the blood evidence and by making misleading statements concerning it , or by making speculative submissions which were apt to “mislead and confuse”, or by making comments which were “inflammatory and derogatory and likely, if not actually intended, to cause unfair prejudice to the appellant” and making a comment which was ” gratuitously pejorative and fundamentally irrelevant” which ” represented a crossing of the boundary between what was legitimate and what was illegitimate for a Crown Prosecutor to say to a jury.” In New South Wales in 2013 the Court of Criminal Appeal unanimously found a prosecutor had caused a miscarriage of justice by doing all those things, and set aside the appellant’s conviction for murder as a result -Paul Darcey Armstrong v R [2013] NSWCCA 113. The prosecutor’s name? Margaret Cunneen SC”

        • andrew says:

          And then Paul Darcy Armstrong pleaded guilty to the very same killing. And is now serving the sentence. This confirms that all of Cunneen’s submissions to the jury were in fact correct.

          • Felix G says:

            The fact that Mr Darcy pleaded guilty does not clear Margaret Cunneen SC of causing a miscarriage of justice via her misrepresentation of the case evidence.

            Anyway, the quote is from a comment by a person called Bart who posted on Tasmanian Times under an article about your book where the forward to the book is by Margaret Cunneen! No wonder you think highly of her.

          • andrew says:

            Ha ha! Not (the charming) Mr Darcy but Mr Paul Darcy Armstrong and the fact that he pleaded guilty to that very killing means there was no miscarriage of justice whatsoever. Cunneen was always correct.

  4. LizP says:

    “we can’t have greater fairness for complainants without compromising the rights of accused persons.”

    Margaret said it in one.

  5. Geraldine Allan says:

    Each time I read Margaret Cunneen’s name, the following jumps to mind.
    Who says mud doesn’t stick?

    • Rosemary says:

      It also makes you wonder about the motivation in some cases to bring the charge on certain people? (perverting the course of justice should be able to be applied to both sides)

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